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THE IIED AYA
OR GUIDE:
A
COMMENTARY
ON THE
MUSSULMAN LAWS,
Translated by order of the Governor-General and Council of Bengal,
BY
CHARLES HAMILTON
BY
STANDISH GROVE GRADY
BARRISTER-AT-LAW I RECORDER OF GRAVESEND J
Reader on Hindu, Mahommedan and Indian Laws to the Inns of Court ; Author o/"Th«
Hindu Law of Inheritance*;" and of "The Mahommedan Laws of Inheritance and
Contract ;" Editor of "The Institues of Hindu Law, or the Ordinances of
Menu;" Author of "The Law of Fixtures and Dilapidationst
Ecclesiastical and Lay ;" and Joint Author of " The Law and
Practice of the Crown Side of the Court of Queen's Bench."
Premier Book House
4/;> Katchery Road-LAHORE.
PUBLISHER'S NOTE
This is a word-to-word, line-to-line and page-to-page exact
reproduction of the second edition of the mon-u-mental work
"HEDAYA". This has been intentionally done for the
convenience of the readers, so that they may locate references
and citations of this work made in other books.
It is hoped that the publication of this treasure of Islamic
Jurispudence which remained out of print for more than half
a century will be greatly appreciated.
LAHORE,
January 1, 1957.
Second Edition : 1957
Reprint : 1963
Published by Sh. Muhammad Khalil B.A., LL.B., for Pr«mie%Boofe House
PRINTED AT THE UNIT PRINTING PRESS
LAHORE
DEDICATION OF THE ENGLISH TRANSLATION.
TO WARREN HASTINGS, ESQ.,
LATE GOVERNOR-GENERAL OF BENGAL, ETC.
SIR, — AFTER the labour of several years, I am at last enabled to
present you with a translation of the HEDAYA.
To you, SIR, I feel it incumbent on me to inscribe a work originally
projected by yourself, and for some time carried on under your imme-
diate patronage. — However humble the translator's abilities, and
however imperfect the execution of these volumes may be, yet the
design itself does honour to the wisdom and benevolence by which it
was suggested ; and if I might be allowed to express a hope upon the
subject, it is, that its future beneficial effects, in facilitating, the
administration of Justice throughout our Asiatic territories, and uniting
us still more closely with. Our Mussulman subjects, may reflect some
additional lustre on your Administration. — I have the honour to be,
with the utmost respect, and the most lively gratitude and esteem.
Sir,
Your most obedient,
And most "humble Servant,
CHARLES HAMILTION.
ADVERTISEMENT TO THE SECOND EDITION.
IN further pursuance of the design to which I alluded in my Preface to
the Third Edition of Menu's Institutes, I now present to the profession
the Second Edition of the HEDAYA. As this work has been made a
text-book by the Council of Legal Education, for the examination of
the students of the Inns of Court, who are qualifying themselves for
call to the English Bar, with a view of practising in India ; as the
First Edition, by Mr. Hamilton, has been some time out of print ; its
bulk (four quarto volumes) is not calculated to assist reference to its
pages ; and its price had increased in proportion to the difficulty of
obtaining it, I felt it a duty to publish a new Edition, in order to bring
it somewhat more within the reach of the students, not only with
reference to its size, but its cost. I have accordingly, therefore, pre-
pared this Edition for those enterprising Publishers, Messrs. W. H.
Allen & Co. A large portion of the work having become obsolete, in
consequence of the abolition of slavery, and from other causes, I have
expunged the Books containing those portions from the present Edition,
they being more interesting to the antiquarian (who can consult the
First Edition) than useful to the student or practitioner, and their
insertion would not only have increased the bulk of the volume, but
its expense also. I have, however retained in the Introductory
Discourse" the translators'! epitome of those books from which the
object and scope of the obsolete law may be learned. Where portions
of the expunged subjects have been incidentally mixed up with
others, I have been constrained to retain such portions lest the con-
text might, by their omissions, be involved in obscurity. The second
edition is now comprised in one volume, printed in double columns,
and in smaller type than the original, with a -view of comprising it
within that compass, but, as the type is cleai:, it is conceived that no
disadvantage will result from this. Wherever any subject is omitted,
I have inserted a note, expressing my reasons for expunging it. A
large portion of the original translation had been printed in Italic
letters. For the sake of uniformity and clearness, this plan has not
been adopted in the present Edition. I have added a very copious
Index, which will facilitate reference to the context ; and I should
have embodied in foot-notes, reference to the cases that have been
decided upon the various subjects of which the work treats, but that I
have already done so in that portion of my work on "the Mahommedan
Law of Inheritance and Contract," in which the same subjects are
discussed, and where those cases will be found collected.
Although the present Edition has been published with a view oj
assisting the student to prosecute his studies, yet the hope is enter-
tained that the Judge, as well as the Practitioner, will find it useful,
particulary in those provinces where the Mahommedan law demands
a great portion of the attention of the judicial, as well a%that of the
practitioner. It is hoped, also, that it may be found useful In pro
moting th« study of the law in the several Universities in India, i
being advisable to assimilate the curriculum in both countries as muci
is possible.
2, Plowden tsuildtngs, Temple, STANDISH GROVE GRAFT*
April, 1870.
Contents
PAGE
Introductory address, by the composer of
the Persian version of the Hcdaya x
BOOK I
OF Z A K A T
Chap. I. Introductory , • •
Chap. II. Of Zakat upon Sawayeem ; that
it, herds and fiocki . '
Sect. 1. Of the Zakat of camels, &c.
Sect. 2. Of the Zakat of horned cattle . J
Sect. 3. Of the Zakat of goats . . J
Sect. 4. Of the Zakat of horses . "
Sect. 5. Of the Zakat of kids, calves, and
camels colts
Chap. III. Of Zakat from personal effects .
Sect. J. Of the Zakat of silver
Sect. 2. Of the Zakat of gold
Sect. 3. Of the Zakat of personal or chattel
property
Chap. IV. Of the laws respecting those who
come before the collector
Chap. V. Of mines and buried treasures .
Chap. VI Of Zakat upon the fruits of the
earth > .
Chap. VII. Of the disbursement of 7akat,
and of the persons "to% whose
use it is to be applied %
Chapt. VIII. Of Sadka-Fittir
Sect. I. Of the measure of Sadka-Fittir,
and of the time of its obliga-
tion and discharge
BOOK II
19
OF NIKKAH OR MARRIAGE
Chap. I. Introductory
Sect. 1. Of the prohibited degrees; that is
to say, of women whom at is
lawful to marry, and of those
with whom marriage is unlaw-
ful
Chap. II Of Guardianship and equality .
Sect. Of Kafat, or equality
Sect. Of a power of agency to contract
marriage
Chap. III. Of the Mihr, or dower .
Sect. Concern^ the Dower in the mar-
riages of infidels
Chap, IV. Of the marriage of slaves
Chap. V. Of the marriage of infidels
Chap. VL Of Kissm or partition
BOOK III,
OF RI2ZA OR FOSTERAGE.
BOOK IV.
PAGE
67
OF TALAK OR DIVORG1.
Chap, I. Of th* Talak-al-Sonna, or regular
divorce . .72
Sect. Miscellaneous . . ,^75
Chap. II. Of the execution of divorce . 76
Sect. Of divorce with a reference to time . 78
Sect. Miscellaneous ^ . 78
Sect. Of divorce by comparison, in d the
several descriptions of it . 81
Sect. Of divorce before cohabitation . 83
Chap. III. Of delegation of divorce . 87
Sect. I. Of Ikhtiyar, or option . . 87
Sect. 2. Of Amir-ba-Yed, or liberty . 89
Sect. 3. Of Masheeat, or will . . 91
Chap. IV. Of divorce by Yameen, or con-
* ditional vow . . 94
Sect. Of Istisna ; that is, reservation or
exception . . 99
Chap. V. Of the divorce of the sick . . 99
Chap. VI. Of Rijaat, or returning to a di-
vorced wife . . 103
Sect. Of Circumstances which render a
divorced wife lawful to her
husband . . 107
Chap. VII. Of Aila . . 109
Chap. VIII. OfKhoola . - 112
Chap. IX.OfZihar . . 117
Sect. Of Expiation . . 119
Chap. X. Of Loan, or imprecation . . 123
Chap. XI. Of impotence . . 126
Chap. XII Of the edit . . 128
Sect. Of Hidad, or mourning . . 132
Chap. XIII. Of the establishment of pa-
rentage • • 134
Chap. XIV. Of Hizanit, or Ihe care of
infant children . . 138
2 Sect. Concerning ijie mother's powtr of
3 removal . . 139
Chap. XV. Of Nifka, or maintenance . 140
Sect. 1. Of the Nifka of the wife . 140
Sect. 1. Of accommodations to a wife ,143
44 Sect. 3. Of alimony to a divorced wift, 9
m 1 A C
&C. . * 14«5
57 Sect. 4. Of the fcmaintenace of <%hildten +. I4f
58 Sect. 5. Of the maintenonce of parents,
63 &c . H'
66 Sect. 6. Of the maintenance of slaves I4lj
CONTENTS
PAGE
Book V.
OF ITTAK OR THE MANUMISSION OF SLAVES. 150
150
151
15
BOOK VI.
OF EIMAN OR VOWS.
Chap. I. Introductory
Chap. II. Of what constitues an oathor
vow, and what does not con-
stitute it
Chap. III. Of Kafara or expiation .
Chap. IV. Of vows with respect to entrance
into or residence in a parti-
cular place . .155
V. Of vows respecting various actions;
such as coming, going^ riding,
and so forth . .
VI Of vows with respect to eating or
drinking . . 15b
VII. Of vows with respect to speaking
and conversing . • 163
Concerning a reference to time in
vows
VIII. Of vows in manumission and
divorce . •
IX. Of vows in buying, selling, mar-
riage, and so forth
X. Of vows respecting pilgrimage,
fasting, and prayer . IV
XI. Of vows respecting clothing and
ornaments
Chap.
Chap
Chap.
Sect.
Chap.
Chap.
Chap.
Chap,
Chap.
Chap.
Chap
Chap.
Sect.
Chap.
16.
16
17
17
Chap.
Chap.
Chap,
Chap.
XL. Of vows concerning striking,
killing, and so forth
XIII. Of vows respecting the payment
of money • • 17
XIV. Of miscellaneous cases . . 17
BOOK VII.
OF HOODOOD OR PUNISHMENTS.
I. Of Zinna, or whoredom . . 17
Of the manner of punishment, and
the infliction thereof . . 17
II. Of the carnal conjunction which
ocasions punishment, and of
that which does not occasion it 18
III. Of evidence to whoredom, and of
retraction therefrom . . 18
IV. Of Hidd Shirrub, or the punis-
ment for drinking wine . 19
V. Of Hidd Kazaf, or the punishment
for slander . • 1*
VI. Of Tazeer, or chastisement . 20
BOOK VIII.
OF 8ARAKA OR LARCfNY.
BOOK IX.
20
20
AL SEYIR, OR THE INSTITUTES,
BOOK X.
OP THE LAWRESPECTINQ LAKEETS, OR FOUND-
LINGS. 20
BOOK XL
OF LOOKTAS OR TROVE. 2(
PAGE
BOOK XII.
OF IBBAK OR THE ABSCONDING OF SLAVES. 213
BOOK XIII.
OF MAFKOODS OR MISSING PERSONS. 213
BOOK XIV.
OF SHIRKAT OR PARTNERSHIP,
Sect. Of invalid partnerships
Sect. Miscellaneous
BOOK XV.
OF WAKF OR APPROPRIATIONS,
Sect. Concerning mosques, &c. 239
BOOK XVI.
OF SALE.
3hap. I. Introductory . . 2U
Chap. II. Of optional conditions . . 248
Oap. III. Of option of insepection . . 255
Chap. IV. Of option from defect . . 258
Chap. V, Of invalid, null and abominable
sales . . 266
Sect. Of the laws of invalid sales . .275
Sect. Of sales and purchases which are
abominable . . 278
Chap. VI. Of Akala, or the dissolution of
sale . . 280
Chap. VII Of Moorabihat, and Tawleeat,
that is, sales of profit and of
friendship . . 281
Sect. Miscellaneous . . 286
Chap. VIII* Of Ribba or usury . . 289
Chap. IX. Of rights and appendages . . 29^
Chap. X. Of claim of right (preferred by
others to the subject of a sale) 294-
Sect. Of Fazoolee Beea, or the sale of the
property of another without his
consent . . 296
Chap. XI. Of Sillim sales . . 299
Sect Miscellanous cases . . 309
BOOK XVII.
OF SIRF SALE.
jrfOOK XVIII.
OF KAFALIT OR BAIL.
Chap. I. Introductory . .318
Sect. Of Zamins or guarantees . . 327
Chap. II. Of bail in which two are concerned 329
Chap. III. Of bail by freemen, in behalf of
slaves, and by slaves in behalf
of freemen . . 330
BOOK XIX.
OF HAWALIT, OR THE TRANSFER OF DEBTS. 332
BOOK XX.
OP THE DUTIES OF THE KAZEE.
Chap. I Introductory
Sect. Of imprisonment
334
338
CONTENTS
PAGE
Chap. II. Of letters from one Kazee to an-
other • • 34
Sect. Miscellaneous . • 3*
Chap. III. Of arbitration . . 343
Sect. Miscellaneous cases relative to ju-
dicial decisions • • »>44
Chap. IV. Of the decrees of a Kazee relative
to inheritance • • 347
Sect. Miscellaneous • • 352
Chap.
Sect.
Chap.
Chap.
Chap.
Chap.
Sect.
BOOK XXI.
OP SHAHADIT OR EVIDENCE.
I. Introductory • •
Miscellaneous t •. • 357
II. Of the acceptance and rejection of
evidence • • 359
III. Of the disagreement of witnesses
in their testimony • •
IV.Ofevidence relative toinheritance 368
V, Of the attestation of evidence . 36
Concerning the stigmatizing of false
witnesses • • 372
BOOK XXII.
OR RETRACTATIONS OP EVIDENCE 372
BOOK XXIII.
OF AGENCY
Chap. I. Introductory . • 37<
Chap. II. Of agency for purchase and sale 37(
Sect. 1. Of agency for purchase . . 37
Sect. 2. Of the appointment of agents, by
slaves, for the purpose of pur-
chasing their own jfersons in
their own behalf . 38
Sect. 3. Of agency of sale . 38
Sect. 4. Miscellaneous cases . 39
Chap. III. Of the appointment of agents for
litigation and for seisin . 39
Chap. IV. Of the dismission of agents 39
BOOK XXIV.
OF DAWEE OR CLAIMS.
Chap. I. Introductory
Chap. II. Of oaths . . 40
Sect. Of the manner of swearing, and re-
quiring an oath . . 40
Chap. III. Of Tahalif; or the swearing of
both the plantiff and the de-
fendant . . 40
Sect. Of persons w ho are not liable to
ciajms . .41
Chap. IV. of things claimed by two plaintiffs 41
Sect. Of disputes concerning possession . 4;"
Chap. V. Of claim of percentage . . 42
BOOK XXV.
OP IKRAR OR ACKNOWLEDGMENTS.
Chap. I. Introductory . . 42
Sect. Concerning acknowledgments with
respect to Embryos
PAGK
lhap. II. Of exceptions; and what is deemed
equivalent to-exception . . 430
Chap. III. Of acknowledgments made by sick
persons . . 436
Sect. Miscellaneous cases ' . .439
BOOK XXVI.
OF SOOLH, OR COMPOSITION
PROFITS OP STOCK AND LABOUR.
Chap. I. Introductory . . 441
Sect. Miscellaneous . . 443
Chap. II. Of gratuitous or voluntary composi-
tions ; and of the appointment
of agentt for composition . 446
Chap. III. Of compositions of debt . 448
Sect. Of participated debts . . 450
Sect. Of Takharij . . 452
BOOK XXVII. " •
OF MOZARIBAT OR COPARTNERSHIP IN THE ^
PROFITS OF STOCK AND LABOUR.
Chap. I. Introductory . . 454
Chap. II. Of a manager entering into a con-
tract of Mozaribat with another 460
Sect. Miscellaneous . . 463
Chap. III. Of the dismissal of a manager ;
and of the division of the pro-
perty . . 463
Chap. I\f. Of such acts as may lawfully be
performed by a manager . . 465
Sect. Miscellaneous . . 468
Chap. V. Of disputes between the proprietor
of the stock and the manager . 470
BOOK XXVIII.
OF WIDDA OR DEPOSITS. 471
BOOK XXIX.
OF ARREAT OR LOANS. 471
BOOK XXX.
OF HIBBA OR GIFTS.
Chap. I. Introductory . . 482
Chap. II. Of retractation of gifts . . 485
Sect. Miscellaneous . . 488
> Sect. Of Sadka or alms-deed . . 489
BOOK XXXI.
t OF IJARA OR HIRE.
Chap. I. Introductory . . 490
Chap. II. Of the time when the hire may be
claimed • 491
Sect. Miscellaneous . $93
Chap. III. Of things the hire of which i»
unlawful or otherwise ; and of
disputed hire . i\*
Chap. IV. Of invalid Hire . .497
Chap. V, Of the responsibility of a hireling 503
Chap. VI. Of hire on one of two condition: 505
Chap. VII, Of the hire of slaves ^ . - 557
Chap. VIII. Of disputes between the hirer
and the hireling + . 508
Chap, IX. Of the dissolution of contracts of
hire . . 509
Sect. Miscellaneous cases . . 5)2
via
CONTENTS
BOOK XXXII.
OF MOKATIBS
BOOK XXXIII
OF WILLA
PAGE
512
513
Sect. Of the Willa Mawalat, or Willa of
mutual amity . . 517
BOOK XXXIV.
OF IKRAH OR COMPULSION. 519
Sect* Miscellaneous . . 521
BOOK XXXV,
OF HIJR OR INHIBITION.
Chap, I. Introductory , . .524
Chap. II. Of inhibition from weakness of
' mind . . 526
Sect. Of the time of attaining puberty . 529
Chap. III. Of inhibition on'account or debt 530
BOOK XXXVI.
OF MAZOONS OR LICENSED SLAVES 633
BOOK XXXVII.
OF GHAZB OR USURPATION.
Sect. Oi usurped articles altered bracts of
the usurper . . S37
Sect. Miscellaneous . , 541
Soct. Of the usurpation of things which
are of no value . 544
BOOK XXXVIII.
OF SHAFFA.
Chap. I. Of the persons to whom the right
of ShafTa apertains . . 548
Chap. II. Of claims to Shaffa, and of litiga-
tion concerning it . . 550
Sect. Of disputes relative to the price . 553
Sect. Of the articles in lieu of which the
Shafee may take the Shaffa
property . , 555
Sect. Miscellaneous . . 556
Chap. III. Of the articles concerning which *
SharTa operates . . 558
Chap. IV. Of circumstances which invalidate
the right of SharTa . . 561
Sect. Miscellaneous ' ', . 563
Sect. Miscellaneous cases . . 563
BOOK XXXIX
OF KISSKfAT OR PARTITION.
Itap.'!. Introductory L . .566
'Jhap/II. Of tfrings which are fit objects of
partition J . 569
Chap. kill. Of the mode of accomplishing
partition . . 57!
Chap. IV. Of pleas of error in partition ;
and of claims of right in regard
to it 573
PAOB
Sect. Of the laws which prevail in a claim
of right . . 574
Chap, V. Of the laws of Mahayat . . 576
BOOK XL.
OF MOZAREA OR COMPACTS OF CULTIVATION. 579
BOOK XLI
OF MOSAKAT OR COMPACTS OF GARDENING. 5S4
BOOK XLII.
OF 2ABBAH OR THE SLAYING OP ANIMALS FOR
FOOD. 587
Sect. Of the things which may lawful be
eaten and of those which may
not . . 591
BOOK XLHI,
OF UZHEEA, OR SACRIFICE 5^2
BOOK XLIV.
OF KIRAHEEAT, OR ABOMINATIONS 594
Sect. 1. Of eating and drinking . . 595
Sect, 2. Of dress . . 597
Sect. 3, Of ornaments . . 597
Sect. 4. Of the commerce of the sexes;
and of looking at or touching
nnv person . . 598
Sect. f» Of fstihra, or waiting for the
purification of women . . 601
Sect, 6. Of the rifles to be observed in
sale . . 603
Sect. 7. Miscellaneous cases , . 60?
BOOK XLV.
OF THE CULTIVATION OF WASTE LANDS. 609
Sect. 1. Of waters . .613
Sect. 2. Of digging or clearing rivers . 615
Sect, 3. Of claims of Shirb ; and of dis-
putes and particular privileges
with respect to it . 616
XLVT
OP PROHIBITED LIQUORS 618
Sect. Of boiling the juice of grapes . . 623
BOOK XLVII.
OF HUNTING.
Sect. 1» iOf catching game with animals
of the hunting tribe, such as
dogs, hawks, &c> . . 623
Sect. 2- Of shooting game w'th an arrow 627
BOOK XLVIIL
Or RAHN OR PAWNS.
Chap. I. Introductory . • 629
Chap. II. Of things capable of being pawned;
and of things for which pledges
may be taken 63&
CONTENTS
IX
PAGE
SECt. Miscellaneous . . 642
Chap. HI. Of pledges place J in the hands of
a trustee . . 644
Chap. IV. Of the power over pa vns and of
offences committed by or upon
them . . 6*7
Sect. Miscellaneous . . 656
BOOK XLIX
OF JANAYAT OR OFFENCES AGAINST THE
PERSON 659
BOOK L.
OF DEE AY AT OR FINES
Chap. I Introductory m 660
Chap. H. Of nuisances placed in the high-
way . . 660
Sect. Of buildings which are in danger of
fallinq . . 663
Chap. IH. Of offences committed by or upon
animals . . 665
BOOK LI.
OF MAWAKIL OR THE LEVYING OF FINKS. 670
BOOK LII.
OF WASAYA OR WILLS.
Chap. I. Of wills that are legal* and wills
that are laudable ; and of the
retractation of wills . . 670
PAGE
Chap. II. Concerning the bequest of a third
of the estate . . 676
Sect. Of the period of making wills . . 684
Chap HI. Of emancipation upon a deathbed;
and of wills relative to emanci-
pation . 685
Sect. Of bequests for pious purposes . 688
Chap. IV. Of wills in favour of kinsmen and
other connexions . , 689
Chap. V. Of usufructuary wills . . 692
Chap. VI. Of wills made by Zimmees . 695
Chap, VII. Of Executors and their powers 697
Chap. VIII. Of evidence with respect to
wills . . 703
BOOK LIII
•OF HERMAPHRODITES.
Sect. 1. Of who are hermaphrodites ^ 704
Sect. 2. Of the law respecting equivocal
hermaphrodites . . 7Q£
CHAPTER THE LAST
Miscellaneous cases
. 707
INTRODUCTORY ADDRESS
BY THE
COMPOSERS OF THE PERSIAN VERSION
PRAISE and glory unbounded is due to that adorable Being, in the
investigation of whose ways ; through several mazes, the most learned
theologians are exchausted, and the most contemplative philosophers,
in the wilderness of research, find the foot of comprehension shackled
with the fetters of amazement ! — Duly to return thanks for his favours
(which to offer is a duty indispensably incumbent on every existent
being) is impossible ; and to touch the skirt of his intelligence (which
exceeds the power of the linger of diligence) by force of reason and
study, impracticable ! — Salutations innumerable are also to be presented
at the tribunal of HIM who is seated on the elect throne, to follow
whose infallible institutes is a certain means of attaining the Divine
favour, and whose world-illuminating Lamp of Law derives its sacred
light from the morning beams of the Day of Judgment. — All honour
and blessing upon him, and upon his holy family, and his worthy
COMPANIONS ! — Upon the tablets of the hearts of those who adorn the
exordium of the book of knowledge and wisdom, and upon the minds
of those who expound the collected mysteries of the creation, it is
impressed, — that, from the day that the delightful region of BENGAL
was cheered by the rays of Government of the Nawab Governor-
General, Mr. WARREN HASTINGS, the whole of his wise and prudent
attention was occupied and directed to this point, — that the care and
protection of the country, and the administration of public affairs,
should be placed on such a footing, that the community being sheltered
from the scorching heat of the sun of violence and tyranny, might find
the gates closed against injustice and oppression ; and that the range
of sedition in those who deviate from the road of truth might be limited
and shortened : — and since this hope must be fulfilled through the
influence of the holy LAW t>f the PROPHET, and the injunctions and inhibi-
tions of the chosen sect, — this denizen of the kiqgdorrf of humility and
solitude, named GHOLAM YEHEE, was therefore instructed and em-
powered, together with Molla TAJ-ADDEEN, Meer *MOHAMMED HOSSEIN,
and Molla SHARAEEAT Oor. LA, to translate from the Arabic language into
the Persian idiom certain treaties upon the LAW, but particularly that
excellent work the HEDAYA (which, from its great subtlety, and the
closeness of its style, is a species of miracle), — to which, accordingly,
with their assistance, applying his attention, the Arabic text was, as
much as it would admit, reduced into a Persian version ; which they
have entitled the HEDAY A FARSEE [Persian Guide]. — hoping that mankind
may thereby find their wants supplied, and that profit and advantage
may thencn accrue.
FROM those whose who travel in this fruitful garden let it not be
concealed, that where, in the course of their investigation, the word
Sheikhine [the two Elders] is mentioned, it signifies the two renowned
Doctors, Imam ABOO HANEEFA, and the most illustrious of his disciples,
Imam ABOO YOOSAF : — where the word 1 irrafine [the two extremes]
is written, it imports the sublime name of ABOO HANEEFA (on wljpm be
the peace of GOD) and Imam MOHAMMED, who stands next in rank to
the two Elders ? and by the term Sahibine [the two disciples] are in-
tended the two scholars of HANEEFA, upon both of whom be the blessing
^rGQD !
A HOPE is indulged, from the benevolence of those who shall persue
the following pages, that if in passing over thte valleys and the hills of
this long journey, it should happen that the foot of meditation has any-
where slipped from its place, they will not treat it with severity, npr
expose it to the finger of scorn or reprehension. — The guidance is
PRELIMINARY DISCOURSE,
BY THE TRANSLATOR.
VOL. I.
BOOK I. OF ZAKAT\
ZAKAT means the alms imposed by the LAW, in opposition to Sadka
[charity], which signifies the voluntary contributions of individuals, and
which is treated of at large under the head of gifts. — As ALMS, in our
application of that word, is always used to denote something purely
gratuitous, the translator, in treating of those imposed by the Mussul-
man law, has retained the original term, to which the English language
does not afford any expression strictly analogous. Some writers have
confounded Zakat and Sadka under one common meaning. The Arbian
commentators, however, make an essential difference between them ;
for the former is merely an indispensable » compliance with a legal
obligation, claiming no merit in futurity ; whereas the latter is as much
an impulse of the mind as an act of the hand, and is of course entitled
to its reward. — The impost of Zakat originated with MOHAMMED
himself, who at first employed the revenue arising from it according
to his discretion, in th% support of his needly adherents ; but
the objects of it were*afterwards ascertained by various passages in
the KORAN ; and it is somewhat remarkable that the Prophet parti-
cularly excluded the members of his own family from any participation
in it, and this in terms which sufficiently denote the arrogant
superiority assumed by the tribe of HASHIM.* To compensate, how-
ever, for this execusion, he admitted them to a fifth share in that
proportion of the spoil which was alloted to the public treasury. For
some generations after MOHAMMED this impost was regularly collected,
and faithfully applied to its appointed purposes. — In most Mussulman
territories it continues to be levied at the present day ; but the original
object of its disbursement have been long since disregarded, and
what was intended as a relief to the poor i is now,'* even in the best
regulated governments, carried to the exchequer of the prince, who
endeavours to satisfy his conscience by a sort of commutation, in the
erection of mosques, or the support of a few indigent and idle Fakeer^
about his palace. That which commenced in the indigence or rapacity
of the sovereign, has now acquired a sort of prescriptive ^itority ;
and the revenue derived from Zakat is universally consjderefo as tne
right of the state. It has indeed, for several centuries past, ceased to be
collected upon stationary property, the only tax which at presehL
* See his declaration upon t^is subject (vol. I.), where the grossness of the meta-
phors used by him is worthy of remark.
xii PRELIMINARY DISCOURSE.
bears the name of Zakat being that imposed on goods imported in the
way of trade from one country or district into another, and levied
in the name of a toll.— Many of its rules will be found to apply
peculiarly to ARABIA and SYRIA, the countries in which these laws
originated, and where flock* and herds have ever formed a chief part
of the wealth of the inhabitants. Although the laws of Zakat have in a
great measure been superseded, or become obsolete with respect to their
original design, yet they are worthy of attention, as incidentally
involving many of the laws of property in points not immediately
connected with this subject. — Under this head is comprehended the
Sadka Fittir or alms given to the poor on the festival of breaking Lent;
because the payment of those is considered as a divine ordinance, and
the amount (contrary to other descriptions of Sadka) is particulary
prescribed by the LAW.
ZAKAT is the only one of the five books upon the Abadat, or
spiritual law, retained by the English translator. It, is, therefore,
immediately followed by the Maamilat, or temporal law,— commencing
with MARRIAGE, and ending (properly) with BEQUEST, the last temporal
act of MAN;— though a short supplementary book upon Hermaphrodites
is added.
iQx BOOK II. OF MARRIAGE.
\
THE preliminaries to this most important of all contract, as set
forth in Chap. I, are stated in terms remarkably simple. No provision
is made for the execution of any written engagement ; no particular form
of ceremony is prescribed ; but the efficiency of the whole is made to
depend merely upon the oral declarations of the par ties, before sufficient
witnesses. In fact, written engagements were not in common use until
some time after the establishment of Islaanism.— A section of this
chapter is occupied throughout \vith the matfifhonial prohibitions and
restrictions, with respect to which the Mohammedan and Levitical law
have a close affinity. The principal of these restrictions are, that a
man shall not marry his relation within the prohibited degrees ; that
he shall not have more than four wives at a time ; and that he shall not
marry, together, two women related to each other within the pro-
hibited degrees.— To the political and speculative inquirer the most
curious features in this book are, the passages which particularly
concern WOMEN, as contained in Chap. II. and III. from which it
appears, that the female sex are, among the Mussulmans, invested with
many personal rights and independent privileges, such as certainly, in
some measure, cbmpensate for the various hard conditions to which
law or custom has subjected the daughters of Islam. — These, as they
are fully discussed in the body of the work, it is needless to
recapitulate. The most striking of them which occurs under this
articles is, the liberty allowed to a woman to dispose of herself in
jnarriage independent of her guardians, and the right of optfon which
still remains^to one contracted during infancy, after she shall have
attained to maturity, which the law fixes at a very early age.* A
woman is also entitled to posses her dower, or marriage settlement,
< _
* See Vol. III.
PRELIMINARY DISCOURSE. xiii
as her own exclusive property, which she may dispose of by gift, will,
or other deed, altogether independent of her husband, or of any claims
which may lie against his estate. — Chapter VI. exhibits a still more
extraordinary regard, in the Mussulman legislator, for the feelings of
the sex, upon a point of a very delicate nature, and in which he doubt-
less consulted the peace of the Haram as much as the dictates of
abstract equity. — Concerning, this, however, we shall leave the text to
speak for itself.
BOOK III. OF FOSTERAGE.
IN a state of society where fastidious refinement has not destroyed
the genuine feeling of the heart, the tie of fosterage is, next to that
of blood, of the strongest and most lasting nature. — Even in the more
remote parts of our own country the NURSE is still considered rather
in the light of an humble relative than a menial dependent. By the
people of Asia this idea is carried still farther ; and the nursing
is supposed to partake of the very nature of her from whose blood
he receives his earliest nourishment. An affinity is therefore created
by this circumstance, which operates to render marriage illegal in the
same manner as actual consanguinity. Hence the prohibitions occa-
sioned by fosterage are analogous to those set forth in the second
section of the preceding book, — to which this is a kind of supplement.
BOOK IV. OF DIVORCE.
THE greate variety of matter which this book embraces, and the many
deviations which it admits from its main subject, the translator shall
not undertake either to account for or to defend, — From the contents
of the first six chapters the reader will perceive that the Mohammedan
law of divorce bears a st/ong affinity throughout to that of MOSES. In
this, as in marriage, rib written instrument is required, the repudiation
being effected merely by the verbal declaration of the party. — Custom,
indeed, and the municipal regulations of most Mussulman countries,
following the example of the Jews, have made a writing of divorce, if
not an essential, at least a circumstance which it would be highly
indecorous to omit. What most forcibly strikes us on the perusal of
this subject is the extreme facility with which a husband may rid
himself of his female partner, — a facility which, when we consider the
too frequent levity and fickleness of MAN, seems at first sight calculated
to expose the weaker sex to the most degrading insult which malice
could dictate, of caprice put in practice. — The Arabian legislator has,
however, established so many bars, and pride itself opposes such
obstacle as, if they do not completely remedy, at least tend greatly to
counteract this apparent defect. — Before a divorce becomes irreversible
it must have been pronounced three times, allowing (according to
the orthodox form) an interval of a month to pass between each
sentence; — or such a period must have elapsed a°* affords ample room
for reflection and repentance, in cases of anger or disginJt ; ana' a
reversal is, at any time before the expiration of that term, established
by either word or deed, denoting a reconciliation. The husbanvd.
moreover, unless he can prove gross misbehaviour, must give up^the
dower.— But the most powerful obstacle to unjust or capaicious
xiv PRELIMINARY DISCOURSE.
repudiation is that part of the law which provides, that if a wife be
once completely divorced, the husband cannot take her again, until
she be previously married to, bedded with, and divorced by, another
man. — To this salutary regulation chiefly is owing the dislike which
obtains against divorce in all Mussulman countries, and the dishonour
attached to it, — insomuch that the instances of it are very rare,
notwithstanding the liberty which is permitted by the LAW. The place
and title of Chap. XV. would naturally lead us to conclude, that it
treats in particular of the alimony payable to a divorced wife during
the term of probation. This, however, is by no means the case ; for
it is made to comprehend those rights of every person which come
under the denomination of MAINTENANCE, — not of the wife alone, but
also of parent, children, poor or disabled relatives, and slaves. — With
respect to domestic arrangements, this is, perhaps, the most useful
section of the whole work. It evinces, in many places, a considerable
spirit of humanity, and very properly introduces.
BOOK V. OF MANUMISSION.
TENDERNESS towards SLAVES is certainly a prevalent principle in the
Mussulman law, notwithstanding some passage which occur in this
treatise concerning them are directly repugnant to common feeling,
and to the natural rights of MAN. — In the XXI Vth chapter of the KORAN
this tenderness is strongly enforced with respect to certain points in the
domestic treatment of them* and it may also be traced in various parts
of this Commentary. — It is, indeed, in practice pretty much confined to
the slaves professing the Mussulman faith, as it is natural to suppose
that the followers of the Prophet do not entertain the same regard
towards their bond-servants of other religions. Still, however, we
shall be guilty of great injustice, if we forgi our'ideas of Mussulman
slavery from the treatment experienced by Qhristian captives among
the barbarians of Tunis and Algiers. The precepts concerning manu-
mission are injunctive with respect to believers only ; but those
which recommend kindness and good usage apply to all alike. The
law in many instances affords them protection against injustice, and
declares them to be "claimants of right." It in some particulars,
moreover, provides an alleviation to this otherwise most hopeless and
degraded state of MAN, unknown to the more polished inhabitants of
Europe; — as may be perceived in perusing the Jaws with respect to
Am-Walids, Mokatibs, ModabbirS, and Mazoons. — To the free-born
denizen of BRITAIN, the very name of SLAVE carries with it something
odious and disgustful : but the Mohammedan bondman, generally
speaking, experiences in a very slight degree, if at all, the miseries
which necessarily attend that state in some of the dependencies of
EUROPE ; where the riches of the community grow out of the incessant
labour of wretches, whose shortened date of life is balanced against
their earnings by rulej of Algebra and calculations of Arithmetic ! If
tfre slave$ of Mussulman appear, by their conduct, to be deserving of
„ • The passage referred to treats of matchmgs slaves who are single : — "CONTRACT
in marriage) THOSE OF THEM WHO ARE SINGLE, SUCH AS ARE WORTHY, OF YOUR MALE
LND'FEMALR (slaves) ; IF THEY BE POOR, GOD WILL ENRICH THEM OF HIS BOUNTY."
•UNTO SUCH AS DESIRE A WRITTEN COVENANT (of Ki^bat), GRANT IT, IF YE SEE GOOD
N THEM ; AND GIVE THEM OF THE RICHES OP GoD, WHICH HE HATH GIVEN YOU/' &C»
PRELIMINARY DISCOURSE. xv
encouragement, they are frequently treated rather as humble friends
and confidents than as servile dependants ; and though inhibited from
rising in the state, often, in the capacity of Mazoons, amass a degree
of wealth which enables them to purchase their freedom. — The subject
of manumission is discussed at large in the first five chapters of this
book, — Chap. VI. treats of a practice which was common in ARABIA
before the time of MOHAMMED, and was confirmed by his precepts. It
affords a strong incentive to emancipation, by enabling a master to
perform an act of piety which, being posthumous in its effect, cannot
injure his circumstances. — Chap. VII. exhibits a branch of that most
important article, "the establishment of parentage." It shows, that the
children born to man by his female slaves are as legitimate as those
begotten in marriage ; and also, that the Mussulman law, like the
Roman, does not acknowledge any affinity between a bastard and his
father, but throws him wholly upon the mother.
NOTE. — On turning to Book V. it will be seen that the subject
treated of has been omited, on the ground that slavery having been
abolished by Act V. of 1843, there is no use in preserving the law
upon the subject, which will be interesting to the antiquarians only
and he can find the learning upon the subject in the earlier editions.
BOOK VI. OF Vows.
OATHS are one of the bonds of society, and in many instances
the chief security for public integrity and private property. Perjury,
therefore, has in all communities been justly reprobated as a most
flagrant crime. It is remarkable, however, that the Mussulman law has
instituted no specific punishment for this species 6f offence, except in
the case of slander, the legislator seeming to think the apprehension
of punishment in a future state of itself sufficient to restrain men from
the commission of it. This is evidently the case with respect to the
expurgatory oaths required of accused or suspected persons. In matters
of property, indeed, the magistrate is at liberty to punish it by a
slight discretionary correction ; but in those most enormous instances
of it which implicate the life of MAN, the only ill consequence it
induces, on discovery, is a fine adequate to the blood thus unjustly
shecl :__!a very trifling atonement certainly ! In this defect, however
(if it be such), of their law, the Mussulman do not stand alone.
NOTE. — The law of perjury is now regulated by the Penal Code.
VOL. II
BOOK VII. OF PUNISHMENTS
THIS book treats only of the punishment incurred by cirmes
of a spiritual nature, those instituted for offences" against person or
property being discussed under their respective heads. Thek>punishment
for adultery is certainly severe. Yet we will not, perhaps, be forward
to condemn this severity, if we compare it for a moment with what is
recorded in the twentieth chapter of Leviticus upon the same point.—
In fact, from the nature of the evidence required, it was next to
impossible that the offence should ever be fully proved, even among the
xvi PRELIMINARY DISCOURSE.
tents of the AR\BS; so that the institution of the prescribed punishment
was in a great measure nugatory, except in cases of confession by
the parties. That those confessions were sometimes made in the early
days of Islamism, is a fact ; and made, as they were, at the certain
expense of life, they afford a wonderful instance of devoted zeal
among the first followers of MOHAMMED. Still, however, even in those
instances, every means that precaution could suggest is enjoined to
avoid the necessity of inflicting the sentence. — The three first chapters
of the book relate entirely to whoredom, and the penalties incurred by
each species of illegal connexion. — Chap. III. involves some curious
matter concerning the retrospective limitations of testimony, which in
practice extend to all cases of criminal accusation. Much here occurs,
likewise, concerning the general laws of evidence, that may not be
deemed unworthy of nptice. Chap. IV. containing the penalties of
drunkenness, exhibits a degree of lenient indulgence with respect to
that vice which we should scarcely expect to meet in a Mussulman law-
book, as it hence appears that a man may offend in this way, even to
a considerable degree, without any danger of legal cognizance.—-
Slander, as treated of in Chap. V. comprehends all expressions which
may either affect the reputation of a man or woman previously possessed
of a fair character, or the legitimacy of their issue ; and the punishment
has, added to it, an effect equally just and politic, namely, incapa-
citating the slanderer from appearing as an evidence on any future
occasion. — Discretionary correction, which forms the subject of Chap.
VI. extends to all petty descriptions of personal insult, even to abusive
language, fn fact, two thirds of thi punishment incurred under the
Mussulman jurisdiction at the present day, whether in Turkey, Persia,
or India, are inflicted under the name ofTazeer.— We must not pass
this book without noticing the extraordinary indulgence shown to
slaves, in subjecting them, for all spiritual offences, to only half the
punishment of freemen. The reasons alleged for this lenity manifest
an uncommon degree of consideration and feeling for the state of
bondage.
BOOK VIII. OF LARCENY.
THE Translator has adopted the term Larceny, as the title of this
book, because that work expresses every species of THEFT, from the
most petty to the most atrocious. The uniform punishment annexed
to Larceny is the amputation of a limb, unless where the act has been
accompanied by murder, in which case the offender forfeits his life
by the law of RETALIATION. — Many arguments might be adduced
against the law of mutilation in cases of Larceny, founded as well on
the inhumanity as the inefficiency and inconvenience of that mode
of correction. It is, however, the only method expressly authorized by
the text of the KORAN ;— and if we consider the force of religious
prejudice, and the* effect of long habit, it may, perhaps, appear very
unadvisablc to introduce any hasty alteration in the penal jurisdiction
in this particular, — especially as we have nothing better to offer by
way of substitute (for surely our penal laws are still more sanguinary !),
and also, as the Gentoo laws, with respect to theft are strictly
Analogous to the Mussulman, in awaking mutilation under certain
circumstances.— Chap. VII. of this book is particularly worthy of
PRELIMINARY DISCOURSE xvii
attention, as it respects the most daring and outrageous breach
which can be made against the peace and security of society. To enter
fully into the spirit of the text, in this and many other parts under
the head of larceny, it is requisite that we keep in mind the peculiar
manners of the people in those parts of the world where the Mussulman
law operates. It is observable that, at the end of this book, a
remarkable instance is incidentally introduced of the forbearance of the
law in a case of homicide upon provocation.
NOTE. — Book VIII. has been omitted, as the question of larceny,
as now applicable to India, is regulated by the Penal Code, Act XLV.
of i860.
BOOK IX. THE INSTITUTES
THIS book contains a chief part of what may be properly termed
the political ordinances of MOHAMMED, and is useful both in 3
historical and a legal view, — in the former, as it serves to explain the
principles upon which the Arabians proceeded in their first conquests
(and in which they have been imitated by all successive generations of
Mussulmans), and in the latter, as many of the rules here laid down,
with respect to subjugated countries, continue to prevail in all of that
description at the present day. The nature and end of those regulations
is so fully explained in the text, that they do not require any
illustration or comment in this place*.
BOOK X. OF FOUNDLINGS.
ONE of the earliest and most laudable attempts of MOHAMMED, in
the prosecution of his pretended mission, wes, to correct certain
barbarous practice? than, prevalent among his countrymen, particularly
with respect to infanjk ^dfiildren, whom it was common for the parents
to expose or put to death, where they apprehended any inconvenience
from the maintenance of them. The present book is to be considered
merely as a comment upon his precepts in this particular.
BOOK XI. OF TROVES.
Book XII. ABSCONDING OF SLAVES.
NOTE. — This has been omitted for the same reason as Book V.
BOOK XIII. OF MISSING PERSONS.
THE rules laid down in these booKs win be found, in general,
strictly consonant to natural justice, and such as prevail (or ought to
prevail) in all well-regulated communities.
BOOK XIV. OF PARTNERSHIP.
THIS Book contains a number of subtle distinctions with respect tc
property, in many of which acute discrimination seems to be studied
* This book has been drifted, as it has hardly any practical effect ; and, i
requisite, the former edition can be consulted.
xviii PRELIMINARY DISCOURSE
more than practical utility. Several of them the reader may indeed be
tempted to consider rather as the scholastic reveries of an abstracted
divine, than as flowing from an active intercourse with the world, or
dictated by the liberal spirit of commerce. Still, however, it will
perhaps be found, that in the mass of speculation much matter is
interwoven of a more substantial kind. The MUSSULMAN laws of
property (to ascertain which is one great end of the present work) are
in some instances defined with considerable precision ; and the various
subdivision it exhibits to us of representative wealth, as opposed to
real, gives us an interesting idea of the refinement which, so many
centuries ago subsisted in Mohammedan countries with respect to those
particulars.
BOOK XV. OF WAKF OR APPROPRIATIONS.
IN all Mohammedan countries (and in none more than in
IJiNDOSTAN) it has been a common practice to dedicate lands, houses ;
and other fixed as well as movable property to the use of the
poor, or the support of religion. The founding of a mosque,
the construction of a reservoir, and even the digging a well, for
the public use, come all under the same head; and many nohlc
monuments of these kinds are still to be seen in different pans
of INDIA the useful effects of benevolence or superstition, in
the more flourishing periods of the Mogul empire. That empire
has, indeed, long since been hastening to decay ; and the monuments of
Mussulman piety or magnificence have suffered, with it, a sympathetic
dilapidation. Numberless grants of LAND, however, to pious or charitable
uses, have been executed at different times, of which many are still
in full force, under the general title of Aima ;— and these must give
some interest to the subject of the present book, in which the various
modes of alienation are discussed with considerable accuracy.
»
BOOK XVI. OF SALE.
BOOK XVII. OF SIRF SALE.
To enter fully into the subjects of these books, would occupy
more time and space than is consistent with the brevity of prefatory
remark. The observations we have made concerning BOOK XIV.
will equally apply to these throughout. The book of SALE is swelled by
avast accession of incidental matter. Of these, the most striking is
USURY, the subject of Chap. VIII. The Mohammedans, In this parti-
cular, closely copy the Jewish law, by which the children of ISAREL were
also strictly forbidden to exercise usury among each other. — To this
chapter the book of SIRF SALE may in some measure be considered a
supplement, since it seems chiefly calculated to guard and provide
against the practice of USURY in the exchange of the precious metals.
BOOK XVIII. OP BAIL.
UNDER thfs head are comprehended all sorts of security, whether
fqtf" persons or property. — This book contains a good deal or practical
matter (particularly in the laws concerning guarantees), and is
therefore worthy of an attentive persual.
PRELIMINARY DISCOURSE xix
BOOK XIX. TRANSFER OF DEBTS.
Is in some measure supplementary to the former, as the transaction
of which it treats is performed by way of giving security to a creditor.
BOOK XX. DUTIES OF THE KAZEE.
THE subject of this book is of the utmost importance in all countries,
as upon the conduct of the magistrates the welfare and happiness of every
society must chiefly depend : and indeed the Mohammedans esteem it of
so much importance, that several large works have been written, by
their principal law commentators, under this title. — In Chap. I. and II.
the proper conduct of a judge, and the behaviour required in him, are
briefly defined. — In these, however, as well as in the succeeding chapters,
the text wanders strangely from its professed subject, and goes into a
variety of matter which would appear to fall more properly under
other heads.
BOOK XXI. OF EVIDENCE.
BOOK XXII. OF RETRACTATION OF EVIDENCE.
THESE are two as useful books as any in the whole work, — and
develope some of the most important principles in judicial proceed-
ings— xhe last section of Book XXI. shows, that the punishment
incurred by perjury are (as has been already noticed) of a very slight
nature, and calculated to* operate more upon*men's feelings than their
fears. The reasons for this lenity are of the same description with
those urged by our lawyers. Perhaps, indeed, the infamy and perpetual
disqualifications to which the witness is subjected by it may^ operate
as effectually as those penalties which the LAW prescribes ; — but it is
certain that false testjmSny is regarded with less abhorrence by
Mohammedans in general than among Christians.
VOL. III.
BOOK XXIII. OF AGENCY
BOOK XXIV. OF CLAIMS
IN the former of these books nothing very remarkable occurs, the
laws with respect to agents being in general analogous to those which
obtain in our own courts. — Book XXIV. chieflyjrelates to the conduct
of suits at law and the rules to be observed iij administering oaths, &c.
It also comprehends much extraneous matter with respect to the various
subjects of suits. — Chap. V. treats of a point already mentioned,
namely, the establishment of parentage. In all societies where polygam)
and concubinage are allowed, this subject must necessarily afford
frequent ground for litigation.
BOOK XXV. OF ACKNOWLEDGMENTS.
IT is only necessary to remark of this book, that Acknowledgment,
in the Mussulman LAW, has the sarnie effect, in the establishment 01
transfer of property, as a fottnal deed.
xx PRELIMINARY DISCOURSE
BOOK XXVL OF COMPOSITIONS,
BOOK XXVII. OF MOZARIBAT.
THESE books contain a quantity of technical matter. Mozaribat
seems to have been a device adopted in order to avoid the imputation
of usury, by which the monied man was enabled to obtain a profit
from his capital without the odium of receiving any interest upon it. —
This species of contract is in common used in Hindostan.
BOOK XXVIII. OF DEPOSITS.
BOOK XXIX. OF LOANS.
BOOK XXX. OF GIFTS,
THESE books chiefly consist of plain rules, applied to ordinary
^£ses. — it is to be remarked, however, that the Mussulman law,
with respect to gifts, differs considerably from the Roman, in leaving to
the donor an unrestricted right of resumption.
BOOK XXXI. OF HIRE.
IT is a book of considerable practical utility, as it comprehends every
description of valuable usufruct, from the hire of land to that of a
workman or an animal.
BOOK XXXII. OF MOKATIBS.
BOOK XXXIII. OF WILT A
IT is probable that many of the laws in these? Hooks have now fallen
into disuse, or are confined to Arabia, Persia, and Turkey. The pri-
vileges and immunities of WILLA, however, still obtain in all Mussulman
countries, and are of considerable consequence, as involving many
rights liable to become subjects of litigation. The privilege allowed
to a slave, of covenanting for and purchasing his freedom, place the
Mussulman laws of bondage in a striking, but not a disagreeable light.
NOTE. — This book has also been omitted for the same reason as
Book V.
BOOK X^XIV. OF COMPULSION.
IT is in general agreed, by most juridical writers, that a defect
of the will, arising from compulsion, is an excuse for any crime
. committed, and an annulment of any deed executed under it. In the
Mussulman code this nj\e, however, does not invariably hold, is from
wh*t occurs under this head it appears, that compelled contracts or
other act;V are * nevertheless valid in their effect ; and that offences
committed under the influence of fear have still a degree of criminality
attached to them.
PRELIMINARY DISCOURSE xxi
BOOK XXXV. OF INHIBITION.
THE subject of this book comprehends every species of incapacity,
whether natural or accidental. The second chapter exhibits one of
the most striking features in the institutes of Mohammedanism. — How
far legal restiictions upon adult prodigals are calculated for the
advantage of the community at large, is not our business to inquire. It
is, however certain, that the imposition of wholesome limitations
upon thoughtless extravagance, and every other species of folly, if
more generally introduced, would operate powerfully to- preserve the
property and peace of families, and (perhaps) the virtue of individuals. —
The inhibition upon debtors, as contained in Chap. III. is well worthy
of attention.
BOOK XXXVJ. OF LICENSED SLAVES.
THAT regulation of the Mussulman law by which a master is
empowered to endow his slave with almost all the privileges and
responsibilities of a freeman, preserving, at the same time, his property
in him inviolate, affords a strong proof of its tenderness with respect
to bondage. It in fact places the slave who obtains this advantage
rather in the light of an attached dependant than of a mere servile
instrument, deprived of privilege, and destitute of volition.
NOTE. — This book has been omitted for the same reason as Book V.
BOOK XXXVII. OF USURPATIONS.
BOOK XXXVIII. OF SHAFFA. '
THE points of discussion which occupy these books are of some
importance in every view. The reflations in th<2 former are, for the
most part, sanctified by natural justice, and those in' the latter, by
many considerations of, co'nveniency and expedience. Several parti-
culars which occur in treating of Usurpation must indeed be referred
to certain customs prevalent in Arabia. The right of pre-emption
enjoyed in virtue of community or contiguity of properly, is perhaps
peculiar to the Mussulman law. However accommodating to the
interests and partialities of individuals, this privilege rifay nevertheless
be considered as liable to some objection, on the score of affording
room for endless litigation. Under certain restrictions, it is both a just
and a humane institution.
VOL. IV.
BOOK XXXIX. OF PARTITION.
THIS book relates chiefly to the division of inheritable property.
By the Mussulman law, as by the Roman, parceners in an estate may be
constrained to make partition of their joint inheritance; for which
purpose proper officers are appointed by public ^uthorfty. — The same
rule also extends to other descriptions of partnership property. Tlft
principal tendency of the disquisitions under this head is, «o lshoto
what are proper objects of partition, and in what instances th«
magistrate is at liberty to compel the parties to accede to the separation
xxii PRELIMINARY DISCOURE
of their joint possessions. — The laws of usufructuary partition, as
contained in Chap. V., possess much curious originality.
BOOK XL. COMPACTS OF CULTIVATION.
BOOK XLI. COMPACTS OF GARDENING.
THESE books are of use chiefly on account of the regulations with
respect to landed property which incidentally occur in them. They
exhibit the farming of lands in a very imperfect state, and at a time
when money had as yet come little into current use. They, however,
explain a number of principles upon this subject equally applicable to
all ages.
BOOK XLII. OF ZABBAH.
IN the Mohammedan as in the Jewish LAW, the eating of blood
is strictly forbidden, and hence the various rules and precautions are set
for under this head. It appears, from some passages, that the
Arabian Prophet was desirous of inculcating not only a scrupulous
regard to the purity of food, but also a humane and tender attention
to the feelings of the animals destroyed for the purpose of supplying
it. — This last is indeed a sentiment discoverable in many parts of his
precepts.
BOOK XLIII. OF SACRIFICE.
SACRIFICE, whether asb a memorial or an expiation, is one of the
most ancient religious observances which occur in the history of
mankind. The particular ceremony which is the subject of this book,
was institued in commemoration of ABRAHAM'S obedience to the
Divine command by the intended sacrifice of his son. This son the
Arabian commentators make to be their great f>rojgeni tor ISHMAEL, and
not ISAAC, whom they assert to have been promised subsequent to
that event. This conclusion they draw from the manner in which the
whole circumstance is worded in the thirty-seventh chapter of the
KORAN, though the passage is certainly very equivocal. The anniversary
of this rite falling on the tenth of Zee-al-Hidjee [the month of
pilgrimage], it is performed by pilgrims in the valley of Minna, and
constitutes one of the prescribed ceremonies of pilgrimage. — It is,
however, equally enjoined on all others possessed of the ability; and
may be performed by any man at his own habitation. The rules
respecting it are few and simple ; and are, in fact, of little consequence
in a civil light, farther than as they tend to affect property.
*
BOOK XLIV. OF ABOMINATIONS.
A SUBJECT which involves a vast variety of frivolous matter, and
Oust be considered chiefly in the light of a treatise upon propriety
and decorum. In it is ^particularly exhibited the scrupulous attention
pai^J to female modesty^, and the avoidance of every act which may tend
to violatgl it, tven in thought. — It is remarkable, however, that
this does^not amount to that absolute seclusion of women supposed by
sotine writers. In fact, this seclusion is a result of jealousy or pride, and
not of any legal injunction, as appears in this^and several other parts of
PRELIMINARY DISCOURSE xxiii
. Neither is it a custom universally prevalent in Mahom-
medan countries.
BOOK XLV. CULTIVATION OF WASTE LANDS.
IN most Mussulman governments, particular encouragement has
been held forth to the reclaiming of barren or deserted grounds, by the
powerful incentive of granting to the cultivator a property in the soil. —
A considerable portion of this book is occupied with discussions upon
the right to water, that element being justly regarded as a most valuable
commodity in countries where, from the heat of the climate, the ground
is liable, for the greatest part of the year, to excessive drought; and
where, of course, the success of tillage must chiefly depend upon an
artificial supply of it.
BOOK XLVI. PROHIBITED LIQUORS.
IN prohibiting the use of wine (under which term are included all
descriptions of inebriating liquors), the Prophet meant merely to restrain
his followers from unbecoming behaviour, and other evil effects of in-
toxication. At first the precept was issued in the KORAN simply against
drunkenness which amounted only to a prohibition of excess in the use
of strong liquors ; but this not proving sufficient for the purposes of
complete determent, the negative injunction was produced, by which
inebriating fluids were altogether proscribed, and declared unlawful.
The tendency of this book is chiefly, to exhibit the opinions of their
divines concerning what kind of liquors thoselne which fall under the
denomination of prohibted ; in which we may trace the rigid scrupulosity
of the more early Mussulmans upon this point. At present, however,
they are not, in general, very strict observers of the LAW in this particu-
lar, their modern doctors Allowing that fluids various may be drank,
either medicinally or for measure, provided it be done with moderation,
and so as to avoid scandal.
BOOK XLVII. OF HUNTING.
THIS book is, properly, a supplement to Zabbah ; and any reflec-
tions upon it may therefore be referred to the observations under that
head.
BOOK XLVIII. OF PAWNS.
BOOK XLIX. OFFENCES AGAINST THE PERSON.
IN determining the measure of punishment for offences committed
upon the persons of men, the lex talionis seems at first sight to
have been dictated by natural reason, and to be consistent with a
justice, as affording the best means of a strict and equal retribution.
Accordiiftly, we find it among the earliest institutes of ever^ society
approaching to a state of perfect civilization. Before^ the *ti me ai
MOHAMMED, the administration of public justice being little^known
in Arabia, personal injuries were a fruitful source of private revengs
and civil war, and preserved, among the descendants of ISHMAEL,* a
sanguinary ferocity of spirit, which was considered as a virtue rathei
xxiv PRELIMINARY DISCOURSE
than a blemish in their character. The Prophet soon perceived it
necessary to the completion of his project, to introduce a reform in
this particular ; and therefore, with a view at once to indulge his
countrymen's propensity to revenge, and to preserve the peace of
the community, shortly after his flight to Medina (as it is said), revealed
t at passage of the KORAN allowing of retaliation, in which he has
nearly copied the law of MOSES. As equality is the professed ground
of this institution, the Mussulman doctors, in their comments upon
it seems, to have followed the literal acceptation of the text in all
cases where the observance of this equality is possible. In practice,
however, retaliation is seldom or never inflicted upon a limb or
member ; but a mulct is imposed in proportion to the injury, and
according to the circumstances by which it is excited or attended. — In
fact, however equitable this mode of requital may appear in some
instances of personal „ injury, yet, when applied to all without
limitation, it certainly involves much gross absurdity and injustice, a
charge from which it does not stand acquitted by all the distinctions
which the commentators have established concerning it in this book.
Hence it is that the Mussulman courts, following the example of the
Jews, understand the words of the KORAN, in all cases short of life,
in the same manner as those do the Pentateuch ; that is, not as
awarding an actual retaliation, according to the strict literal meaning,
but an atonement in exact proportion to the injury-— Thus much with
respect to wilful offences. That law by which a man is made responsible
in his property for offences unintentional or merely accidental, is
certainly, in some instances, rather rigorous. It was, however,
well calculated, in an irregular society, and a defective state of
civilization, to guard men from acting carelessly, and has a strong
tendency to support. and inculcate the sacredness of the person of
MAN.*—
BOOK L. OF FINES.
ALTHOUGH the manner in which this subject is treated involves a
considerable portion of frivolous absurdity, yet we also find, in the
course of its discussions, many wise and salutary regulations, both
for preserving the security of the person, and the peace and good
order of society. We may perceive, from the persual of it, that a
man is made responsible not only for his overt acts, but likewise for any
injury which may be more remotely occasioned by his carelessness,
obstinacy, or wilful neglet. The degree of the fine was originally
fixed at a certain amount, that for the life of a man being determined
at one hundred camel, and all others at a proportionable rate,
according to the injury. In later times, however, the changes in
manners, and in the value of property, introduced other modes of
ascertaining amercement, and fines came to be levied not only m
proportion to the injury sustained, but also according to the
circumstances of the. case.— Chap. VL exhibts the only species of
iriftuest admitted by the Mussulman law in cases of uncertain homicide,
consisti/% solely of expurgatory oaths. However well calcuated this
have been for the meridian of Arabia or Irak, and for the state
"• This subject has been omitted, as it is now dealt with by the Indian .Criminal
Law.
PRELIMINARY DISCOURSE. xxv
of society in those countries at the time these laws were first
systematized into a code, it is certainly but a poor device for the
detection cf guilt or the ascertainment of fact in a well-regulated
community. — It is remarkable that a law strictly correspondent to
what is mentioned in this chapter formerly prevailed among the
Saxons and other northern nations of EUROPE, where the responsibility
for unascertainable bloodshed lay with the master of the family, or
with the people of the tithing in which the body was found.*
BOOK LI. THE LEVYING OF FINES.
THE subject of this book is purely of a local nature, relating entirely
to the levying of fines upon the Arabian tribes for offences uninten-
tionally committed by any individual of them. — These regulations serve
to give us a pretty clear idea of the state of society in the native
land of Islamism. However useless, and perhaps impracticable, in a
more advanced state of refinement, these, as well as many regulations
in the two preceding books, were well calculated to reduce a fierce
people under the restraints of law and civil government.
NOTE. — See note to Book XLIX.
BOOK LII. OF WILLS.
WITH respect to the forms of wills, the same observations occur
as have been already made in treating of MARRIAGE. — In fact, as
writing was formerly very little in use aipong the Arabs, all deeds
are, in the commentaries upon their laws, regarded and mentioned as
merely oral. Hence WILLS, as discussed in this book, are solely of the
nuncupative description. The most remarkable^ features in this book
are, the restrictions imposed upon testators with respect to the disposal
of their property.
BOOK LIII. OF HERMAPHRODITES.
THIS book, and the succeeding chapter, which, because of its
being detached from any particular subject, is termed CHAPTER THE
LAST, are a kind of supplement to the rest of the work. Hermaphrodites
are probably a class of beings which exist in imagination rather than
in reality. We shall therefore leave this book to speak for itself.
— The last chapter is worthy of particular notice, as (if we except
bills of sale and judicial letters) it is the only part of the work in
which anything is mentioned concerning forms of WRITING.
IN concluding this short review, the translator esteems it his duty
to add, that it is a very imperfect summary indeed of the work
which is now presented to the public. The subjects of it would
admit of a much more ample discussion. — But to enter into a compara-
tive ancf analytical survery of topics so numerous and important would
of itself require a large volume; and the pauence of the «reader*is
perhaps exhausted. The more particular investigation of the&we shall
therefore leave to his own reflections or inquiries ; ana hasten
to conclude an essay, for the length of which no other apology can Ite
* See the note above.
xxvi PRELIMINARY DISCOURSE.
offered, than an anxious wish to forward the chief end of this publi-
cation/by throwing some light upon a subject dry in itself, and not
without its difficulties, and accommodating it to the preceptions of
those whom duty or curiosity may lead to make it an object of their
study.
OF the importance of a work in which the translator has borne so
large a share, it may not become him to say much ; but as the
objects of it are of a public nature, and as it has been brought forward
in some measure at the public expense, he feels himself called upon
to hazard a few words in vindication of its probable utility.
WITH respect to the immediate end proposed by those who
originally projected this translation, all that is necessary to be stated
may be resolved into one summary argument. While the Mohammedan
LAW is allowed to be the sole standard of criminal,* and in a
great measure of civil jurisprudence throughout our dominions in
&NDIA (and it would perhaps be neither prudent nor possible hastily to
introduce any other system), it appears indispensably necessary that
those who are to protect the rights of the people, and who are
responsible for the proper administration of public justice, should
possess the means of consulting the principles on which the decisions
of the Mussulman courts are founded. This reflection acquires still
greater weight, when we consider how very large a portion of subjects
under the British government in INDIA are Mohammedans, upon
whose attachment to their rulers much of the prosperty of our
Asiatic empire must necessarily depend.
THE advantages to be derived from a development of the institutes
of MOHAMMHD are, however, not confined to the administration of
justice in our Asiatic * territories. The commerce ef GREAT BRITAIN
extends to almost every region where his religion is professed ;
and as this work is a commentary upon the juridical code of the
OTTOMAN as well as of the MOGUL empire, and is applicable to the
customs and judicial regulations of Cairo, Aleppo, or Constantinople,
as well as of Delhi or Moorshedabad, — it can scarcely fail to open a
source of desirable knowledge to the merchant and the traveller.
In a political view, likewise, it is humbly presumed that this work
will not be found altogether uninteresting. At the present eventful
period, when we have seen new empires springing in to birth, and
the old indignantly throwing ofT the long rivetted chains of despotism,
the grandest remaining fabric of rslamism seems hastening to its
fall. — In expecting this mighty ruin, we are naturally led to inquire
upon what principles the £ibric was founded, and to what causes
we are to attribute its decay. — Some parts of the following treatise are
particularly calculated to assist us in such an investigation. We
may there observe that, however sagaciously it might be formed for
j&2 sudden extension of dominion, during an age when mankind^were
involved in the darkest gloom of superstition and ignorance, the
Mussulman' system, civil and religious, is but wretchedly adapted to
the purposes of public security or private virtue. We may observe,
with somJ degree of laudable exultation, its obvious inferiority, in
* See the Penal Code, and Code of Criminal Procedure.
PRELIMINARY DISCOURSE xxvii
every useful view, to that excellent system which >\c pcfu.*, and
which is so admirably calculated to promote the temporal (ccd of
mankind, as well as their eternal happiness !
BUT it is time to close this address. The translator cannot,
however, conclude without paying that tribute which justice and
gratitude demand. — Concerning the public zeal, the pcnetiating and
comprehensive mind of the Gentleman to whom the work is dedicated,
it is unnecessary to enlarge in this place. From him the present
translation derives its existence ; and the merit of his design received
its best confirmation in the continuance of support it experienced
from his^ immediate superiors, as well as from his successors in
office. — To the liberal attention and honourable confidence of SIR
JOHN MACPHERSON and his Colleagues in the BENGAL government it
is owing, that the translator was at all enabled to look forward
to the completion of his labours. Yet this attention and confidence,
flattering as they were, would not have sufficed to bear him through an
arduous and expensive undertaking, had it not been aided by the
generous and munificent support of the COURT OF DIRECTORS, whose
regard to every effort which may tend to promote the interests of our
Oriental dominions has been repeatedly experienced both by himself
and others. Conscious of his own deficiencies, he has only to hope it
may appear, that what they have liberally granted has been faith-
fully and diligently employed. He entertains too humble an opinion
of his abilities not to be sensible that, with all his assiduity, aided by
the many happy suggestions of the worthy »and excellent friend who
had for some time been his Colleague in the performance, it will
still be found far short of perfection.— The chief business of a
translator, when engaged in an undertaking of this kind, is scrupulous
accuracy, and the only merit he can claim laborious application.
The former of the'se tl\e present translator has endeavoured to
preserve,, and the latter he presumes to affirm has not been wanting.
Nevertheless, there is undoubtedly much room for correction and
amendment. The very nature of the work rendered the translation
of it a business attended with no common degree of difficulty.
Treating of an abstruse science, the technical terms of which but
nakedly explained, and frequently not to be met with in any of his
guides, all the light the translator could obtain to a knowledge of
his subject necessarily sprung out of the text ; and consequently, as
he advanced, he saw continual occasion for retrospective alterations,
which amounted to little less than a repetition of his labour. He
found himself therefore frequently at a loss ; and repeatedly experienced
the truth of an observation made by our immprtal Lexicographer, — that
"a writer may often in vain trace his memory, at the moment of
need, for that which yesterday he knew with intuitive readiness, and
which will come uncalled into his thoughts to-morrow."
IN Confirmation of his wish to render thisjDublication, as much
as in his power, worthy of the patronage under which itAias be4n
conducted, the translator hopes he may be indulged fn the\?gotism
of the remark. — that he has dedicated his three last years unreniittedly,
to revisal or re- translation. — He now dismisses it with an anxious
wish that that patronage may not appear to have been bestowed, or
his own efforts applied, in v£in !
THE HEDAYA;
COMMENTARY ON THE MUSSULMAN LAWS.
BOOK I.
OF Z A K A T.
Definition of the term. — ZAKAT, in its
primitive sense, means purification whence
it is also used to express a contribution of a
portion of property assigned to the use of
the poor, as a sanctification of the remainder
to the proprietor. It is by some commenta-
tors termed the indispensable alms.
Chap. I. — Introductory.
Chap. li. — Of Zakat from Sowayeem
that is, Herds and Flocks.
Chap. III.— Of Zakat from Personal
effects.
Chap. IV. — Of the laws respecting those
who come before the Collector.
Chap. V. — Of Mines, and buried Trea-
sures.
Chap. VI.— Of Zakat from the Fruits
of the Earth.
Chap. VII.— Of the Disbursement of
Zakat.
Chap. VII [ - -OfSadka-fittir,
CHAPTER I.
Obligation of Zakat and the conditions upon
which it is incumbent. — ZAKAT is an ordinance
of God, incumbent upon every person who is
free, sane, adult and a Mussulman, provided
he be possessed, in full propriety, of such
estate or effects as are termed in the language
of the law a Nisab, and that he has been in
possession of the same for the space of one
complete year, which is denominated Hawlan-
Hawl. The reason of this obligation is found
in the word of God,' who has ordained it in
the KORAN, saying, "BESTOW ZAKAT." The
same injunction occurs in the traditions ; and
it is moreover universally admitted. The
reason for freedom being a requisite condi-
tion is, that this is essential to the complete
possession of property. The reason why
sanity of intellect and maturity of age are
requisite conditions shall be hereafter demon-
strated. The reason why the Mussulman
faith is made a condition is, that the render-
ing of Zakat is an act of piety, and such can-
not proceed frojm an infidel. The reason for
the possession of a Nisab being a condition is
that the Prophet has determined the obliga-
tion of Zakat upon that amount. The reasons
for Hawlan-Hawl being made a requisite
condition are twofold ; FIRST, because some
space of time is necessary to increase* of pro-
perty, and the law determines this at one
year, because the Prophet has declared,
"ZAKAT is not due upon property until the
same shall have been possessed one year by
the proprietor : " — SECONDLY, the proprietor
of a Nisab is able, within such a period, to
obtain an iryf rcasc from it, since in a year
there are four seasons, in each of which it
most commonly happens that such property
bears a different price ; wherefore the rule is
determined accordingly. It is to be observed,
that some maintain Zakat to be due imme-
diately upon the completion of Hawlan Hawl,
and others that it is so through, life.f
Zakat is not due from infants nor from
maniacs. — ZAKAT is not incumbent upon in-
fants or maniacs — Shafei declares Zakat to
be an obligation connected with property and
therefore that it is incumbent upon those, as
well as upon other proprietors, in the same
manner as subsistence to a wife, and Tythe
and Tribute ; but to this our doctors reply
that Zakat is an act of piety, and, as such, is
fulfilled only by being paid with the option
of those who are subject to it ; and infants
and maniacs are not held in law to be pos •
se sed of option, this being necessarily con-
nected with reason, which they are not
endowed witft ; but this does not apply to
Tribute, as that is a provision arising from
*Dy increase is here understood that ob-
tained by breeding, where the Nisab consists
of cattle, or bv jjiofit, where it consists of
merchandise.
fThat is to say, annual)®, upc\ the same
property, so long as it remains witrfcthe pro-
prietor.
Z.V;AT.
{VOL.
the soil, fur ih^ r-x^enses oj the btate ; n n to
Tythe, as that is also in some shipe 'if the
same nature.
With certain exceptions. IF a huiat'C hive
lucid intervals within the year, it is the «simc j
asif they happened -vithm th^ month of Rant-
x in : tint i* t » sw. ifhm recover . his re .1 son
within the year, he is subject to Zakat, in the
same manner as if he were to recover it within
the month of Kamzan, in which case he would
have to make up for the days of Lent he had
omitted in consequence of his insanity --
Aboo Yoosaf has observed, that regard is to
be paid to the length or continuance of the
lucid intervals ; that is to say, if they con-
tinue the greater part of the vc*r, the lunatic
isr.ubjecl to Zakat ; but if he be insane for
the greater part, it is not incumbent upon
him. It is to be observed, that origin il anil
supervenient insanity are here considered as
the same ; by original is understood th.it
quence ut vo vs or on account of expiations*
do not turbid the obligation to pay Zakat :
pay /akat in the continuance of the Nisab,
as that \vould be thereby rendered defec-
tive: and, in like manner, a debt of Zakat for-
bid* Zikit af.er the dissolution of the Nisab.
The case of the continuance of a Nasib is,
where the proprietor keeps it for two years
without rendering any Zakat upon it, in which
case no Zakat is due from him on account of
the second year; because a Zakat, in the propor-
tion of one m forty, is already due onaccount
of the preceding year, whence the full amount
necessary to constitute a Nisab does not re-
main in the second year : and the case of
dissolution of the Nisab is, where the pro-
prietor keeps the same for the full space of
one year without paving Zakat, and then dis-
poses of the Nisab, and afterwards becomes
possessed of another Nisab, and this also con-
tinue in his possession for the complete space
which appears in a person in mfancy, and | of one year; in which case, no Zakat is due
continue? upon him as he grows uptopu- upon this second Nisab because a proportion
bcrty ; and by supervenient, thu which ot; -urs of one in forty is already occupied by the
after a person has attained the years of ma- Zakat due on the former Nisab which has
turity. It is related as an opinion of Aboo Iven disposed of. Zi tier controverts the rule
Yoosaf that if a person attain maturity in a i in both these cases: and it is also said that
becomes sane, the
state of insanity, and then
vear* is considered to commence from the
instant of his recovery, the same as a boy
attaining puberty, with whom it is regarded
as commencing on the d.iv of his mijontv.
Nor from Moftatibv —Zakat is not incum-
bent upon a Makatib, he not being co.npletelv
and independ»ntly possessed of property.
since h«* is still a slave ; whence* it is that he
is not at liberty to emancipate anj' of his own
Aboo Yoosar controverts it with respect to
tht* second case. The reason why a debt of
Zakat thus forbids any further obligation to
pay Zakdt is, that the claimant of a debt of
Z.ikat is, in fact an individual,* as the
claimant thereof, in pastures, is the Imam,
arid, HI ai fides of merchandise, the deputy
•if the Imam; f anil the proprietor of the pro-
perty, in all other articles, is the Imam's
substitute, f
Nor n /ion the nc~eisarics nf life. — ZAKAT
slaves. ^ j . „ „ ______
Nnr from in toll wit Jeblor* --Z\K\T is i is not due upon dwelling-houses or articles ot
not incumbent up ma man against whom there j clothing or household furniture, or caltle
kept for immediate use, or slaves employed
as actual
are debts equal to, or exceeding, the amount
of Ins whole property. Imam Shafei alleges
that it is incumbent, because the cause of the
obligation, to wit, possession of an increasing
NISAB, is established Fo this our doctors
replv that such a Nisab is not possessed by
him clear of incumbrance. and is therefore
held to he nonexistent, the same as water,
which, when provided for the «nle purpose of
drink, f is h-»l 1 to be non existent with re-
spect to performance of the Tammce- n, and
cloth provided for the' purpose of apparel,
whiih i* held non-existent with icspcct to
the obligation of Zakat. hut if his property
exceeds liis deht«, Zakat is due upon the ex-
cess, provided the same amount to what is
sufficient to constitute a Nisab, and that it
br: free fro n iiiciimbranc*. I5y the debts here
mentioned are uiiders»tood those. '.hie to indi-
viduals ; such, therefore, as are due in conse-
* For the establishment of Hawlan-Hawl
in his possession.
(As in the caravans, where water is pro-
vided andrf irnecL upon camels for drink, but
not for thr purpose of purification, which in
that or similar situati in* is permitted to be
pA farmed with sar.d.
servin's, or armour, or weapons
designed for present us.» ; all these falling
under ths description of necessaries ; neither
are such considered as increasing property ;
and the same of books of science, with respect
to scholars, and likewise of tools, with re-
spect to handicrafts ; these being to them as
necc.^sai irs
iN/07 npnn uncertain property. — IF a man
have a claim upon another for a debt, and the
other dispute the same and some years thus
pass awav. and the claimant be destitute of
proof, anil the debtor afterwards make a de-
*In opoosition to Ciod; for, if Zakat were
claimed purely as a right of God, the payment
of it would be absolutely and unconditionally
incumbent.
•(•Because the Imam i.* always supposed to
collect the Zakat upon pastures in person,
and that upon merchandise by his deputies,
i.e. by collectors placed at particular stations
for that purpose.
I As the payment of Zakat, upon all other
articles, is committed to the proprietor him-
self.
BOOK I.— CHAP. I.]
ZAKAT.
claration or acknowledgment publicly, inso-
much that ' there are witnesses of the same
there is no obligation upon the claimant to
render any Zakatt for so many years as have
thus passed. This uncertain sort of property
is termed, in the language of the law, Zimar:
and trove property, and fugitive slaves, and
usurped property, respecting which there is
no proof, and property sunk in the sea, or
buried in the desert and its place forgotten,
and property tyrannically seized by the Sul-
tan, are all of the description of Zimar : and
all these articles are equally exempted from
Sadka-fittir. f Ziffer and Shafei maintain,
that all these articles are subject both to
Zakat, and also to Sadka-fittir, as the cause
of the obligation to pay Zakat (to wit pos-
session of a Nisab) is established in each of
them, although it was not in the immediate
seisin of the proprietor whilst it fell under
the description of Zimar, which does not for-
bid the obligation of Zakat; like the property
of a traveller, which if it remain in his house,
is nevertheless subject to Zakat, although it
be not at the time in his hands. The arcju-
ments of our doctors herein are twofold:
FIRST, Alee declared that no Zakat is due
upon Zimar property : SECONDLY, the cause
of the obligation to pay Zakat is the posses-
sion of property in a state of increase, which
cannot be the case but where the proprietor
has an immediate power of management over
it ; but this does not apply to a traveller who
has property at home, as he may mana TC it
by agents.
PROPERTY buried in the home of the pro-
prietor is not Zimar, because it is easily
recovered ; but with respect to property
buried in any other ground than that on
which the house actually stands (such as the
garden, for instance) there is a difference
among our modern doctors.
it is due upon unquestionable, property. —
I ROPERTY which is acknowledged «;bv a
debtor to be owing to his creditor is .subject
to Zakat, whether such debtor be rich or
poor, because the recovery of it is possible :
or if the debtor dispute the demand, yet
here also the property in question is subject
to Zakat, provided there he proof sufficient
to siibstantiate the creditor's claim, or that
the Kazee himself be satisfied of the justice
A *j ;.rbecatlse hcre also recovery i« possible.
And if the acknowledging debtor be poor.—
that is to say, if the Ka7«>e declare him
insolvent ;-— yet here also the property in
question is subject to Zakat, according to
Haneefa,— he holding that a Kar.ee's decla-
ration of the insolvency of a debtor is not
approved : but Imam Mohammed maintains
that the property in this case is not subject
to Zakat— he holding a Kazee's declaration
ota debtors insolvency to be approved.—
*Uponthe property which is the subject
of the claim.
ChaF°Vin cxplanation of Sadka-fittir, see
Aboo Yoosaf agrees with Mohammed re-
specting the validity of a Kazee's decree of
insolvency ; but he, at the same time co-
incides with Haneefa, that the property of
which the debt consists is not, in this case,
subject to Zakat.
Intention of traffic in property subjects
it to Zakat. — If a person purchase a female
slave for the purpose of traffic, and after-
wards retain her for his own use, declaring
his intention, no Zakat is due -upon her,
because the intention is here connected with
the act namely, the relinquishment of traffic
in her; and an intention thus declared, when
connected with an act, is to be credited : —
and if he should afterwards declare a design
of trafficking in her ; yet no Zakat will be
due upon her in virtue of such declaration,
until he actually dispose of her by sale,
because here the i ntention is not connected
withthe act, and consequently she is not held
to be a subject of traffic from his declara-
tion, unless he actually sell her, when Zakat
is due upon her pyce.
IF a person purchase a thing with an in-
tention of traffic.it is to be considered as
an article of traffic, on account of the con-
nection of an intention of traffic with the
act, to wit. purchase: contrary to a case
where a person obtains possession of property
by inheritance, and intends to traffic in the
same, such not being considered an article
of traffic merely from the intention, since
that, in this case, bears no relation to the
act*.
IF a man become possessed of property by
gift, or bequest, or marriage or Khoola, or
composition fot blood, and intend trafficking
in the same, it becomes (and is, in virtue of
his intention, considered as) an article of
merchandise,— according to Aboo Yoosaf—,
he holding the intention here to be connected
with the act. It is related as an opinion of
Imam Mohammed, that this property does
not become as merchandise, because the in-
tention is not here connected with the act of
traffic, which is understood only by pur-
chase and sale; some, however, have related
this difference of opinion the reverse of what
is here mentioned.
Intention of Zakat. in the payment, neces-
sary to its validity.— THE payment of Zakat
is not Uwful, exceot under an intention
existing at the period of such payment, or at
the period of setting apart the proportion of
Zakat from the Nisab property, because the
rendering of Zakat is an act of piety, to
which the intention is essential; and a
radical princi^e of the intention is that it be
connected with the payment : but yet, mas-
much as the giving of Zakat to the poor in
necessarily an act of frequent repetition and
Occurrence, it suffices that the intention
exist at the period of setting apart the pro-
portion of Za!<at (aj aforesaid), for the sake
of convenience.
•That is, to the means by which ft.yh pro-
perty was acquired.
ZAKAT
[VoL. I.
Excepting under certain circumstances ;—
IF a man bestow his whole property in
charity, without intention of Zakat, the
obligation of Zakat, with respect to him,
drops, upon a principle of benevolence,
because such obligation extends to a certain
part of his property only ; and where the
whole is thus bestowed, that part is neces-
sarily included ; whence it is that there is
no necessity for his specifying the same by
intention,
Ira man give to the poor a portion of his
Nisab property, without intention of Zakat,
his obligation to Zakat drops with respect to
such portion (according to Mohammed), be-
cause the part of his property due (on
account of Zakat) affects the whole of his
Nisab equally, — wherefore, when a part of
the Nisab is thus bestowed the proportiondue
upon such part goes along with it. Aboo
Yoosaf maintains that the ob'igation to the
Zakat of that portion does not drop, because
no part thereof is particularly specified as
Zakat, the remainder of the Nisab being the
subject from which the obligation is to be
discharged: contrary to where the whole Nisab
has been bestowed, since there the proportion
d ue on account ^ of Zakat goes, a certiori, as
being involved in the whole.
CHAPTER II.
OF ZAKAT FROM SAWAYEEM J THAT IS,
NHERDS AND FLOCKS.
Definition of Sawayeem, — SAWAYEEM is
the plural of Sayeema ; and Sayeema is, by
the learned, understood to imply camels,
oxen, goats and other animals which sub-
sist for the greater part of the year upon
pasture : wherefore, if they live but half
the year in pastures, and are fed for the
othrr half upon forage, they do not fall
under the description of Sawayeem.* — And
this chapter is divided into several heads.
Sect. i. — Of the Z ahat of Camels. &c.
One goat due upon five camels, &c — No
ZAKAT is due on fewer than five camels ; and
upon five camels the Zakat is one goat, pro-
vided they subsist upon pasture throughout
the year ; because Zakat is due only upon
such camels as live on pasture, and not
upon those which* are fed in the house with
forage. d
ONE goat is due upon any number of
camels from five to nine ; and two goats is
the Zakat on any number from ten to four-
teen ; and three on any number from four-
teen to nineteen and four upon any number
*Thi* term1' is in our dictionaries trans-
lated^Jastures, but the above is the precise
definition of it.
from twenty to twenty-four ; and upon any
number of camels from twenty-five to thirty-
five the Zakat is a Binnit-Makhass, that is
a yearling camel's colt; ; and upon any
number from thirty-six to forty-five, a
Binnit-liboon, or camel's colt of two years ;
and upon any number from forty-six to
sixty, a Hikka, or four-year old female
camel ; and upon any number from sixty-
one to seventy- five, a Fazeeyat, or five-year
old female camel ; and for any number from
seventy-six to ninety, the Zakat is two
camel's colts of two years ; and on any
number from ninety-one to OIK, hundred and
twenty, two Hikkas. These proportions of
Zakat upon camels are what were written by
the Prophet in his letters and instructions to
his public officers and Aumeels. And when
the number of camels exceeds one hundred
and twenty, the Zakat is calculated by the
aforesaid rule ; that is to say, where the
whole number is one hundred and twenty-
five (for instance), the Zakat is one goat for
the odd five, and two Hikkas for the one
hundred and twenty ; and if the excess
number be ten, two goats; and if it be fifteen,
three goats ; and if it be twenty, four goats ;
and if it be twenty-five, a yearling camel's
colt ; and if the whole number of camels be
one hundred and fifty, the Zakat is three
Hikkas ; and if the number exceed one
hundred and fifty by five, it is then one goat
and three Hikkas, that is to say, three
Hikka upon the hundred and fifty, and a
goat upon the odd five ; and upon one hun-
dred and sixty camels, the Zakat is three
Hikkas and two goats ; and upon one
hundred and seventy, three Hikkas and four
goats ; and upon one hundred and seventy-
five, three Hikkas and one yearling colt ; and
upon any number from one huivlred and
eighty-six to one hundred and ninety-five
the Zakat is three Hikkas and a two-year
old colt ; rfnd upon any number from one
hundred and ninety-six to two hundred, the
Zakat- is' fcmr Hikkas ; and in this manner is
the Zakat to be calculated upon every fifty
camels exceeding one hundred and fifty. —
This arrangement is according to our doctors.
Shafei alleges that when the number ex-
ceeds the hundred and twenty by one only,
the Zakat is three two-year old colts ; and if
if amount to one hundred and thirty, it is
one Hikka and two two-year old colts ; after
which the Zakat is calculated at a two-year
old colt upon every forcy camels, and a
Hikka upon every fifty : the Prophet, upon
a particular occasion, having written to one
of his Aumeels to this effect, without makins
any mention of a goat upon the odd five, and
so forth. But our doctors, in support of
their opinion, as above, cite the letters of the
Prophet to Omar, where he says, "upon
every five camels the Zakat is one goat."
Female camels only ^awful in the pay-
ment of Zakat. — AND it is to be obse-ved
that, in the payment of the Zakat of camels,
females alone are lawful, because males are
held to be lawful only in regard to their
BOOK I.— CHAP. II ]
ZAKAT.
value,* such being recorded both in the
sacred writings and in the traditions.
Camel* of all descriptions included.—
CAMELS of,every description, whether Bac-
trian, Arabian, or others, are all included in
these rules of Zakat, as the term camel
[Shutr] is common to all.
Sect.II.—Of the Zakat of Horned Cattle.
One yearling due upon thirty kine, &c. —
No Zakat is due upon fewer than thirty
kine; and upon thirty kine, which feed on pas-
ture for the greater part of the year, there is
due at the end of the year a Zakat of one
Tubbee, that is, a follower, or yearling calf,
male or female ; and upon forty there is
due one Misna, or calf of two years, male
or female, on the authority of the Prophet ;
and where the number exceeds forty, the
Zakat (according to HANEEFA) is to be calcu-
lated agreeably to this rule, so far as sixty ;
that is to say, if there be one animal more
than the forty, there is an additional Zakat
of the fortieth part of a Misna ; and if two,
of the twentieth part of a Misna ; and so on
to the number sixty. — What is here ad-
vanced accords with the Mabsoot ; and the
ground upon which it proceeds is that, in the
sacred writings, the Zakat is particularly
specified for any number between thirty and
forty, and also for those of sixty and above,
but none for the numbers between forty and
sixty, Hasan states the doctrine of Haneefa
to be in this case, that, on the numbers from
forty to forty- nine, no excess Zakat whatever
is due ; and that upon fifty kine the Zakat
is one Misna, and the fourth of a Misna, or
the third of a Tubbee ; because upon every
Akid, or drove of even number, in a Nisab
of cattle, such as thirty, forty, or fifty head
Zakat is due, but not upon any intermediate
number. — The two disciples say that no
Zakat whatever is due upon any odd number
between forty and fifty; and there 'is also one
tradition of the opinion of Han*efa to this
effect ; and the reason they allege is, that the
Prophet said to Maaz. "Take not anything
fromanOwkas of kine," and he explained
an Owkas to mean any number between
forty and fifty. And upon sixty kine, the
Zakat is two yearling calves, male or female :
and upon seventy, one Misna and one Tubbee
and upon eighty, two Misnas : and upon
ninety, three Tubbees : and upon one hun-
dred, two Tubbees and one Misna: and thus
on every ten head, a Misna and a Tubbee
alternately, the Prophet having ordained that
the Zakat upon thirty kine should be a
Tubbee ; and that upon forty a Misna : —
thus, upon one hundred and ten kine, the
Zakat is two Misnas and one Tubbee ; and
upon one hundred and twenty, four Tubbees.
THE usual method, however, of calculating
the Zakat upon large herds of cattle, is by
*That is to say, the price of a male is
held to be lawful in Zakat, but not the
animal
dividing them into thirties or forties, im-
posing upon every thirty one Tubbee; or upon
every forty one Misna.
Buffaloes aie included with other horned
cattle. — IT is to be observed that buffaloes are
included with kine in the laws of Zakat,
these being also considered as a species of
black cattle ; but yet, in our country,* the
buffalo is not regarded as of the black cattle
species ; whence it is that if a person were
to make a vow, saying, "I will not eat of the
flesh of black cattle," and were afterwards
to eat buffalo beef, he would not be forsworn
Sect. HI.— Of the Zakat of Goats.
One goat due upon forty #oat5, &c.— No
Zakat is due upon fewer than forty goats ;
and upon forty goats, which feed for the
greater part of the year upon pastures, there
is due, at the expiration of the year, a Zakat
of one goat ; and this Zakat suffices for any
number from forty to one hundred and
twenty : and if .he number exceed one hun-
dred and twenty, a Zakat of two goats is due
from one Hundred and twenty-one to two
hundred : and if it exceed two hundred, .a,
Zakat of three goats is due from two hundred
and one to three hundred and ninety-nine :
and if it amount to four hundred, the Zakat
is four goats : and beyond four hundred the
Zakat is one goat for every hundred : the
Prophet haying thus ordained, and all the
doctors uniting in this opinion. It is also to
be observed, that the same rules of Zakat
are applicable to sheep as to goats, the term
Ghannem, in the tradition equally implying
both species.
Kids ot lambs are not acceptable payment
unless they be above a year old. — IN the
Zakat of goats or sheep, Sinnees are accept-
able payment, but not Juzzas. This is the
Zahir-Rawayet. Sinnees are kids which
have entered on the second year ; and Juzzas
are such as have not yet completed their
first year. — The two disciples have said that
the Zakat may be paid with the Juzzas of
sheep ; and there is one opinion of Haneefa
recorded to this effect ; and the reasons are
twofold ; FIRST the Prophet has said, "The
Zakat upon them consists of Juzzas and
Sinnees ; SECONDLY, sacrifice is fulfilled
by the immolation of a juzza, and therefore
Zakat may be also discharged by it. The
ground upon which the Zahir-Rawayet pro-
ceeds is also twofold ; FIRST, a saying of
Alee, "In Zakat nothing is acceptable short
of a Sinnee;" — SECONDLY, in the Zakat of
goats it is incumbent to give those of a
middling-size, and the juzzas ofsheep are
not of that standard, being small ; whence it
is that the Juzzas of goats also are not ac-
ceptable in Zakat. With respect to the first
reason urged by the two disciples, it may-Ii;
replied, that by the term Juzza, as men-
tioned in the , tradition, is to be understooc
the Juzzas of camels, that is, yearling colts
*Meaning Persia or Hiniostan.
ZAKAT
VOL, I.
and what they say of sacrifice is no rule, as
that of a Juzza is approved (not by analogy,
but) from the express words of the sacred
text.
But males and females are equally ac-
ceptable.— IN paying the Zakat of goats or
sheep, males and females are equally accept*
able ; the term Shat, in the traditions ap-
plying indiscriminately to both genders.
Sect. IV. —Of the Zakat of Horses.
One Deenar per head due upw horses, or
five Deenars per cent on the total value.-— •
WHEN horses and mares are kept indiscrimi-
nately together, feeding for the greater part
of the year on pasture, it is at the option
of the proprietor either to give a Zakat of
one Deenar per head for the whole, or t«
appreciate the whole, and give five Deenars
per cent upon the total value: and this last is
the mode adopted by Ziffer. The two disciples
maintain that no Zakat whatever is due upon
horses, the Prophet having ordained that
Mussulmans should not be subject to ZAKAT
for their horses or slaves. Harreefa in sup-
port of his doctrine, as above, states an ordi-
nance issued by the Prophet, in which he
directed that the Zakat upon ordinary horses
should be one Deenar, or ten Dirms, per
head. And with respect to the ordinance
above quoted by the two disciples, that ap-
plies solely to war-horses, and not to ordi-
nary cattle.
Zakat not due upon droves consisting en-
tirely either of males or of females.— No
Zakat whatever is clue upon a Nisab of
horses consisting entirely of males, because
in that there can be no increase byr breeding ;
and, in like manner, there is no Zakat upon
a Nisab consisting entirely of mares, for the
same reason. — This is one tradition from
Haneefa. There is another* tradition from
him, however, which says that a Zakat is
due upon mares although there be no horses
among them, as horses can be occasionally
borrowed by the proprietor for the purpose
of producing, whence inciease may be had :
but this is impossible with respect to droves
consisting entirely of houses.
No Zakat due upon asses or mules, unless
as articles of commerce. — THERE is no Zakat
due upon asies or mules, the Prophet having
said, "With respect to Zakat upon asses
and mules, I have received no revelation."
But yet, if these animals be as articles of
merchandise, a Zakat is due upon them, be-
cause, in the present times, Zakat is im-
posed upon the property involved in them
the same as upon any othercarticle8 of
traffic.
Sect. V.— Of the Zakat of Kids, and Calves,
and Camels' Colts.
No Zakat due upon the young of herds or
flocks until a year old. — No Zakat whatever
is due (according to Haneefa) upon the
young of goftts, k'ne, or camels, which are
under on^?ear '» that is to say, if a man
were to purchase twenty -five camels' colts
(for instance) or forty kids, or thirty calves,
and one complete year should pass from the
period of possession, still no Zakat is due ;
nor does any become due until the expira-
tion of the term of a year afte» they shall
have been grown up.
One camel's colt due on 25, &c. — ABOO
YOOSAF holds that Zakat is not due upon
fewer than forty kids, or thirty calves or
twenty-five camels' colts : and upon twenty-
five camels' colts the Zakat is one colt : and
there is no further Zakat due till the number
amounts to seventy-six, when the Zakat is
two colts ; because upon seventy-six Misnas
a Zakat is due of two Binnit-liboons ; and
there is no further Zakat till the number
amounts to one hundred and forty- five when
it is three colts ; because upon one hundred
and forty- five Misnas the Zakat is two
Hikkas and one Binnit-makhass. There are
other traditions of the opinion of Aboo
Yoosaf herein ; but the above, as being a
posterior record, supersedes them.
Case of the payment of Zakat by substitu-
tion.— Ira person owe, as Zakat, a Misna,
and it should hanpen that he is not possessed
of one, having no cattle in his flocks but
%what are either under or over that descrip-
tion, the officer who collects the Zakat is at
liberty either, in the former case to take an
animal of the under rate, and the difference
in money, — or, in the latter, to take one of a
superior sort, paying the difference of value
between that and a Misna to the proprietor.
It is to be observed that, in the latter case,
no constraint is to be put upon the collector,
who is at liberty to insist upon either the
actual thing due (to wit, a Misna), or the
value of one in money, because the accep-
tance of an animal of the superior sort, on
the terms above stated, wears the aspect of
traffic ; his acceptance of it, therefore, can-
not be compelled, insomuch that if the pro-
prietor were tojofive him no obstruction in
taking it/ yet he is not considered as being
seized of i{ ;«but the collector may be com-
pelled to accept of an animal of an inferior
sort, and the difference in money, insomuch
that if the proprietor merely give no obstruc-
tion to the officer, in thus taking the animal
and the difference, he (the officer) is con-
sidered as being seized of the same ; because
here the tr?nsaction does not bear the aspect
of purchase and sale, as the proprietor pays
the inferior animal in part of the Misna, and
consequently the difference along with it.
Substitution of the value lawful. — IF a
proprietor, in Zakat, should, in lieu of the
actual thing due, pay the value in money, it
is approved, according to our doctors ; and
the same holds good in expiation, or in the
payment of Sadka-fittir, or Tythe, or the
fulfilment of a vow. Shafei maintains that
this is unlawful, because it is not lawful to
exchange, for a substitute, anything specified
in the sacred writings ; as in sacrifice (for in-
stance) where a substitution of value for the
victim is illegal. The argument of our doc-
tors is, that God has himself ordained Zakat,
and has directed the same to be distributed
BOOK I.— CHAP. II.]
ZAKAT,
in alms to the poor, which plainly indicates
that the intent of the institution is merely
that the poor should derive a subsistence
from it, so as that their wants may be there-
by relieved ; and to effect this the value will
answer equally well with the specific animal,
wherefore the substitution of the value in
payment of Zakat is legal, the same as in
payment of Jazzeeyat, or capitation-tax :
but this reasoning does not apply to sacrifice
as that is an act of piety, to the fulfilment of
which the shedding of the blood of the victim
is essential, wherefore no conclusion can be
drawn from this instance, as there is no
analogy between the two cases.
Labouring cattle exempt from Zakat. —
CAMELS and oxen kept for the purpose of
labour, such as carrying burthens, drawing
the plough and so forth, arc not subject to
Zakat ; n:ither is any Zakat due upon them
where they are fed one half of the year or
more upon forage. Malik controverts this
doctrine ; but the arguments of our doctors
herein are threefold ; FIRST, the Prophet has
expressly ordained that these two species of
cattle should be exempted from Zakat under
such circumstances ; SECONDLY, the cause of
the obligation of Zakat consists in the posses-
sion of increasing property and the increase
of cattle can be conceived only under two
circumstances, that is, their being either kept
in pastuies,* or for the purpose of traffick,
neither of which is the case with the cattle
now under consideration ; THIRDLY, in case
where the cattle are fed upon forage, the
keeping of them is attended with great
expense, a circumstance which more than
counterbalances any advantage to be derived
from their breeding m such a situation, and
therefore virtually prevents increase, al-
though it may not actually do so.
Must be paid in animals of a medium
Value. — THE officer, in collecting Zakat, is
not at liberty either to insist upon tl^ best
or to accept of the worst sort of the.propcrty
collected upon, but must take what is of a
medium standard, because the Prophet has so
ordained it ; and also, because, in confining
the Zakat to property of a medium value,
regard is hail at once to the interest of both
the parties concerned, to wit, the poor and
the proprietor.
Law respecting property acquired in the
interim between the payments. — WHOEVER is
possessed of a Nisab property, and obtains an
addition of the same sort of species within
thp year, must add it to the Nisab, and pay
Zakat upon the whole. Shafei objects to
this, maintaining that the supervenient
acquisition should not be added to the first
Nisab, because the property of which that
consists is original and independent with re-
spect to propriety, and is therefore so with
Meaning, that where the cattle are
suffered to go at large, as in pastures, the
males have free access to the females, which
produces breed.
respect to Zakat likewise : contrary to acqui-
sition by breed or profit obtained within the
year, that being a dependant only of the ori«
ginal property, and, as such, not to be con-
founded with|it. To this our doctors reply, that
the reason for supervenient acquisition, by
brood or profit, being added to the Nisab is
homogeneity in the subject of it; since* where
the original and supervenient property are of
the same species, it is not easy to discriminate
precisely between them, and consequently
difficult to ascertain the Hawlan-Hawl with
respect to any species of profitable acquisi-
tion arising from original property ; and as
the Hawlan-Hawl is regarded only for the
sake of convenience, it {therefore appears that
homogeneity in the subject is ^a sufficient
reason for the supervenient acquisition being
added to the orginal property ; and this
reason exists in the present case.
Rules respecting the Afoo. — THE two
Sheikhs hold Zakat to be due upon the Nisab
only, and not upon the Afoo ;* but Mo-
hammed and Ziffer maintain it to be due
upon both the Nisab and the Afop, that is,
upon the whole : the result of which diffe-
rence in opinion is that, if the Afoo were to
perish, and the Nisab to remain, then,
according to the two Sheikhs, the whole
Zakat that had been before obligatory still
remains due ; but, according to Mohammed
and Ziffer, an adequate proportion of Zakat
drops : and, in support of this latter opinion,
Mohammed and Ziffer argue that Zakat is
due as an acknowledgment for the blessings
of Providence, and the Afoo is, a blessing the
same as the Wisab ; that is to say, they are
both equally blessings, wherefore Zakat is
equally due upon both. The argument upon
which *he Sheikhs support their opinion is
twofold : FIRST, the Prophet has expressly
said. "The ZAKAT upon five camels is one
o;oat, and ZAKAT is due upon any fur-
ther number till it amount to ten ;" and in
like manner the Prophet has ordained the
Zakat upon every Nisab, and forbidden it
upon the Afoo ; SECONDLY, the Afoo is a de-
pendant of the Nisab, whence, if a part of
the whole Nisab and Afoo were to perish, the
loss would be first calculated upon the Afoo,
as being the dependant part ; as in a contract
of Mozari bat, where any accidental loss is
first calculated upon the profit, and not upon
the capital: and on this ground it is that
Hancefa accounts the loss upon the Afoo to
the extent thereof, and beyond that upon
the Nisab property of the first (or highest)
denomination, and beyond that upon the
Nisab of the n?,xt lower denomination, and
so on to the last (or lowest) denomination of
Nisab ; because the Nisab of the highest de-
nomination is the principal, to which all the
J Afoo literally means exempt % In the
Zakat of cattle it is used to express "any in-
termediate or odd number be twee* one
Nisab and another, as between twenty-five
and thirty-six camels, for instance.
ZAKAT
[VOL. I.
inferior Nisabs are dependants ; and accord-
ing to Aboo Yoosaf , the loss is calculated
first upon the Afoo, and beyond that upon
all the degrees or descriptions of Nisab col-
Case of Zakat being levied by the Rebels.or
Schismaticks.— *!F the rebels or schisma ticks
overcome any particular tribe of Mussul-
mans, and take from them the Zakat of their
cattle, when these rebels are driven away,
the rightful Imam must not impose another
Zakat upon that tribe, because it appears
from the above circumstances that the Imam
has not protected them, and the right of im-
posing Zakat appertains to the Imam, in
virtue of the protection he affords ; the
learned however have decreed, upon this case,
that the tribe in question should repeat their
Zakat, and pay it a second time, but not
their Tribute, because the latter is declared,
in the sacred writings, to be applicable to the
use of the warriors who fight their enemies;
and hence rebels may be considered as an
object of its application, they also answering
this description ; whereas the only object of
the applicatio \ of Zakat is the poor, and
rebels do not bestow what they may levy
upon the tribe, under that denomination, to
the use of the poor ; wherefore it is neces-
sary that the tribe should again pay Zakat,
so as that it may be applied to its proper
object ; but not their Tribute. Some of our
doctors say, that if the aforesaid tribe, at
the period of paying Zakat to the rebels,
intend in so doing to give them alms, in this
case Zakat drops with respect to that tribe,
and there is no necessity for th* ir afterwards
repeating it : and the giving of Zakat to any
tyrant or plunderer whatever is capable of
this construction, because persons of this
description, whatever wealth they may be
apparently possessed of are yet actually poor,
on account of the retribution, which lies
against them hereafter : but the former
doctrine (that the tribe should repeat their
Zakat) is preferable to this, because here the
Zakat is rendered and applied, a certiori
How far the. Toglib tribe are subject to
Zakat, — THE Zakat of cattle is not incum-
bent upon an infant of the tribe of Toglib ;f
and whatever is incumbent upon the men of
that race is so upon the women also, because
* This and the next following case are
merely local in their application, and allude
to the state of ArabJa, shortly after the estab-
lishment Qf Islamism. The schismatic ks
were those who refused to submit to the law
of the Prophet ; whilst others (like the tribe
of Toglib, mentioned in the next case) sub-
mitted and paid tribute.
t One of the Arabian tribes, who refused
to embrace the faith, but agreed to pay tri-
bute to the Prophet. The tribe itself is sup-
posed to.be lonk since extinct ; but the laws
to wh^cn the people of it were subject are
applicable, in general, to all infidel tribu-
taries.
peace was made with them upon those terms,
"that they should pay, of al) public im-
posts, double what as paid by Mussul-
mans ;" now the Mussulman women are
subject to Zakat. and it follows that the
women of the Toglib race are so in a double
proportion ; but on Zakat whatever is re-
quired of infant Mussulmans, wherefore the
infants of the aforesaid tribe are not subject
to it.
An accidental destruction of the property
induces an exemption from Zakat. — IF the
property be destroyed, without being con-
sumed by the proprietor after Zakat has
become due (that is to say, after the comple-
tion of Hawlan-Hawl), the Zakat upon it
drops. Shafei has said that if the property
be destroyed after the proprietor has been
enabled to pay the Zakat upon it, either by
the claimant making his demand of Zakat,
or by the proprietor rinding a claimant,
although such claimant should not have
demanded it, in this case the proprietor is
responsible for the Zakat, because it was
clue from him, and he did notpay it, although
it was in his power to have done so ; more-
over, if he should not pay the Zakat upon
the requisition of the claimant, this circum-
stance stands as a destruction of it on his
part. The argument of our doctors is, that
the Zakat due is a portion or part of the
Nisab ; and, as its destruction is involved in
that of the Nisab, it drops of course, the
same as where a slave commits a Janayat
f offence against the person], in which case
it is incumbent upon the proprietor to make
over that slave to the Walee-Janayat, or
person entitled to the composition ; but, if
the slave should die or be lost in the interim,
the proprietor is no longer responsible for the
transfer of him, and that consequently drops;
and, with respect to the second argument of
Shafei, it may be replied, that no person can
be conji iderea as the claimant of Zakat except
a pauper whom the proprietor may have spe-
cified as the object of its application, and the
case does not suppose the requisition to be
made by such an one But if the collector
demand the Zakat, and the proprietor
neglect payment, and the Nisab afterwards
perish, there are various opinions among the
Haneefite doctors, some alleging that the
proprietor of the destroyed Nisab. in that
case, still remains responsible for the Zakat
due upon it whilst others maintain that,
in this instance also, he is not responsible,
because the Nisab does not here appear to
have been destroyed by him.
A partial destruction includes a propor-
tionable exemption — IF, after Hawlan-Hawl,
a portion of a Nisab (such as a third for in-
stance) should be destroyed, the claim of
Zakat is proportionably destroyed, in the
same manner as where the whole Nisab is
destroyed ; in which cas$ the whole Zakat
drops.
Zakat may be paid in advance. — IF the pro-
prietor of a Nisab should pay the Zakat upon
it, before Hawlan-Hawl, it is lawful, because
BOOK I.—- CHAP. III.]
ZAKAT.
r he has here paid it during the existence of
the creative principle of obligation to Zakat,
which is understood in his possession of a
Nisab ; this payment, therefore, is approved,
the same as a discharge of a debt, under the
existence of its cause ; as where a Mohrim,
for instance, pays expiation for wounding
game whilst animal is yet alive. This
doctrine is controverted by Malik.
IF the proprietor of a single Nisab should,
before Hawlan-Hawl, make payment of
Zakat upon the same for a certain number of
years in advance, or should pay a Zakat
upon a certain number of additional Nisabs,
it is approved, because the first Nisab is the
original with respect to the cause of the obli-
gation of Zakat, and anything beyond that
is as a dependant
CHAPTER HI.
OF ZAKAT FROVf PERSONAL EFFECTS
Sect I —Of the Zakat of Silver.
No Zfik-it dne on Jess than JMO dirmi. — No
Zakat i* due on less than two hundred
Dirms,* because the Prophet his ordained
that there shall be no Zakat upon fewer than
fiv? Awkiyat.f nnd an Awkiyat is valued at
forty Difms.
And upon 200 at the rate nf two and an
ha'f per cent — THE Zikat Nisah of silver is
two hundred Dirms ; and if a man becomes
possessed of two hundred Dirnis. and the
Hawlan Hawl be completed, the Zakaf due
upon it is five Dirms, because th" Prophet
wrote to Maz?:. finyirg. "TTnon two hundred
DIRMS take a ZAKAT of five DTRMS ; and
upon twentv MISKALS of tr ^M, half a Mis-
KAL "
And fit the sn*ne rate upon every forty
ihove two hundred — No Z^kat is due upon ,
nnv excess above the two hundred I}irms,
till siirh excess amount to forty. ur»nn which
the Zakat is one Dirm : and iinoif every
succeeding fortv the same Zakat is due. but
not on fewer than forty. This is according
fo Haneefa The two disciples have said
that a proportionate ZaVit fa Hue on what-
ever excess may occur over and above two
hundred Dirms ; and SHafei coincides in
this opinion, because in the traditions of
Mee it is related that the Prophet has «o
•urdained it ; and also, because Zikat is
•endured as a return of gratitude for the
")lessin^s of Providence ; anH the reason
vhy it i<? exnresserl as a condition, in the
Beginning of this book, that the property.
in order to cause, an obligation of Zakat,
imount to a Nisab, is that the proprietor
*A silver coin, value about two pence
iterling.
fAn ounce of silver ; or a silver coin of
•hat weight, value between six and seven
J
may thence appear to be in easy circum-
stances ; but where, from his being pos-
sessed of a Nisab, this appears to be already
the case, it is not requisite that any excess
amount to a Nisab ; and hence Zakat is
due upon such excess proportionably, what-
ever its amounts may be.
OBJECTION!. — This would lead to a con-
clusion that, in the Zakat of cattle, the
same is due upon any excess under a Nisab ;
whereas the rule is otherwise, no Zakat
whatever being due upon such excess, since
that is considered as Afoo, or exempt.
REPLY. — Such is the conclusion from
analogy ; but the excess in cattle is made
Afoo, because, if a proportionate Zakat
were to be levied upon it, this would neces-
sarily induce a copartnership in the subject,
by the proprietor admitting the claimant of
Zakat to a share in it : — for instance, the
Zakat upon twenty-five camels is one year-
ling colt ; now, if Zakat were due upon
excess camels, and the drove consist of
twenty-six there would be a Zakat upon
this on^ excess, camel of the twenty-fifth
part of a yearling colt, which is not payable
in any vay than by admitting the claimant
to a partnership in such colt ; and this
partnership, being compulsive, is illegal;
but plate or cash not being liable to the
same objection, a Zakat is due, propor-
tionably, upon any excess whatever over
two hundred Dirms.
Rules respecting the calculation nf a Nisab
nf silver.— IT is to be observed, that the
Nisab of silver of two hundred Dirms is
calculated by the Wazn-sebbayat, or sep-
timal weight ijvhich is in the proportion of
ten Dirms to seyen Miskals), as this was
the weight used in the tribunal of Omar,
and that of the Dirm is thence established.
THOSE Dirms in which silver predomi-
nates are to be accounted as silver ; and
the laws respecting silver apply to 'them,
although they should contain some allov I
and the same rule holds with all articles
whatever falling under the denomination of
plate such as cups, goblets, anrl so forth ;
but Dirnrvs, in which the alloy predominates,
are not to be accounted as silver, hut onlv
as trailing property, estimable bv its real
value, to which aline regard is to be had :
and accordingly, if the value of them
amount to a Nisab they are suhiect to
Zakat, provided there be an intention of
trafficking in them ; as is the condition with
respect to all other chatties. In all plate,
therefore, in which the -alloy prevail*, re-
spect is to be had to the intention of traffick-
ing in it. exceVting where the silver con-
tained in it amounts to a Nisab, in which
case the intention of trade In not a condition,
nor is any regard paid to the estimated
value, because in actual silver no respect is
had to either of these. The above case is
thus stated ; becjfcise money always con«
tains a small portion of alloy.tas ptile silver
is unfit for coinage, since, without. hein<y
hardened by an addition of some baser
10
ZAKAT
[VOL. I.
metal, it cannot retain the mint impression ;
but the alloy is geneially in the smaller
proportion ; regard therefore is had to ex-
cess ; that is to say, if the proportion of
silver be the greater it is accounted as silver
but not if the alloy be in greater proportion
(that is, in a proportion above a moiety of
the whole weight).
Sect. II. Of the Zakat of Gold.
No Zakat due upon less than 20 Miskals ;
and upon 2o at the rate of two and an half
per cent— THERE is no Zakat on fewer
than twenty Miskals of gold, this sum being
the smallest that constitutes a Nisab in that
metal ; and the Zakat upon twenty Miskals
of gold is one half Miskal, when the Hawlan-
Hawl therein becomes established, on the
authority of the tradition before quoted —
By the Miskal* here mentioned, is to be
understood that which weighs in th* pro-
portion of seven Miskals to ten Dirms ;
and the Miskal consists of twenty Kerat,f
and the Kerat of five grains
And at the same rate upon every four
above twenty. — WHEN the 'quantity of gold
exceeds twenty Miskals, on every four miskals
of such excess a Zakat of two Kerats is due,
because the Zakat due is fortieth of the
whole, and two Kerats are the fortieth of
four Miskal* and upon any excess short of
four Miskals no Zakat is due, according to
Haneefa. The two disciples hold that on
every excess there is a proportionable Zakat,
the same as mentined in the preceding
section ; and the foundation of their diffe-
rence in opinion is also the same here as was
there recited, to wit, Haneefa holds that
broken numbers are free of impost, whereas
the two disciples maintain the contrary
opinion The ground upon which Haneefa
proceeds, in the rule here cited, is this :
the legal value of a Deenar is ten Dirms,
and a Deenar and Miskal are of the same
weight ; the value of four Miskals in gold
is therefore forty Dirms ; and consequently
no Zakat is due upon fewer than four
Miskals, since these stand the same as forty
Dirms: and it has been already shown that
nothing short of forty Dirms is subject to
Zakat, on account of the tradition of Amroo
Bin Khurrm, as before recited.
General rule — ZAKAT is due upon gold
and silver bullion, which is termed Tebbur :
and in like manner upon ornaments or
utensils of gold or silver, whether the use
thereof be allowable (such as rings, and so
forth) or otherwise.! — Shafei maintains there
*A dram and a half ; also u coin of that
weight.
t A Carat ; the twenty- fourth part of an
ounce.
JThis alludes to prohibitions against the
use of the precious metals in certain articles
of personal ornament an*l household furni-
ture, wfeich have been at various times
issued by the Prophet and his followers as
checks upon luxury (See Abominations.)
is no Zakat upon the gold or silver orna-
ments of women, nor upon rings worn by
men, the use of which is allowable, and
which are therefore the same in this respect
as clothing or articles of • apparel — The
argument of our doctors is, that the cause
of the obligation to Zakat still continues in
j the present case : — moreover, articles of
' gold and silver do, in their own nature,
afford an argument of increase in the sub-
ject, since these metals are brought into use
principally for the purpose of facilitating
exchanges by traffick, which affords an
argument of increase ; a-nd it is the virtual
and not the actual increase in any subject
that creates the obligation to Zakat upon it ;
contrary to the case of articles of apnarelt,
which afford no argument or probability of
increase.
Sect. Ill Of the Zakat of personal
Chattel Property *
Zakat due upon all merchandise — ZAKAT
is due upon articles of merchandise, of
whatever description, where the v.ilue
amounts to a Nisab either of gold or silver,
because the Prophet ordained that articles
of merchandise should be appraised, and
that a Zakat be paid on the same, in the
proportion of five Dirms upon every two
hundred,! as the proprietor has prepared
and keeps them with a view to increase, so
that they resemble cold and lilver, which
the law holds to be kept for the same
purpose ; and, as Zakat is due upon the
latter, i is in the like manner due unon the
! former : but the intention of trade in these
articles is made a condition, in order that it
may be ascertained that they are kept with
a view to increase.
Mode of ascertaining the Nisab of mer-
chandise. — MOHAMMED says that, in estimat-
ing the value of articles of merchandise
with a view to the imposition of Zakat upon
them, they .should he resolved into such
Nisal-jo as may be most advantageous to the
poor ; t|ius if, in valuing an article Hy Dirms,
it would amount to a Nisab of silver, and in
valuing the same by Deenars, it would not
amount to a Nisab of gold, it must be esti-
mated by Dirms ; and, vice versa, if its value
should appear to amount to a Nisab of gold,
it is to he estimated by Deenars — The com-
*In the original, personal chattels are
expressed by the terms Rakht and Mata, of
which it is not easy to give any literal trans-
lation ; they express, in general, all articles
which appertain to personal estate or effects
[Mall : articles of gold and silver, it is
true, do also' fall under this general descrip-
t;on of Rakht and Mata ; but they are intro-
duced tinker a different head, as the laws of
Zakat, with respect *o them, .are of a pecu-
liar nature, and such as <Jo not affect or
apply to other articles of personal property.
fTo wit, at the rare of two and an half
per cent. N
BOOK I.— CHAP. IV.]
ZAKAT.
pilcr of the Hedtya observes that there is
one opinion recorded from Haneefa to the
same effect. Mohammed again, in the Mab-
soot, has said tnat the proprietor of the arti-
cle has it in his option to estimate it at what-
ever species of Nisab he pleases, because
gold and silver are standards, and in esti-
mating the value of effects are both equally
proper.— It is recorded as an ooinion of Aboo
Yoosaf, than an article should be estimated
by that with which it was purchased : thus,
if it has been purchased with Dirms, it is to
he appraised in Dirms ; and if with Deenars
it is to be appraised in Deenars : and if it
should have been purchased with any other
than either of these, it is to be estimated in
money of the most general currency. — It is
on the other hand recorded, as an opinion of
Mohammed, that vhatevcr the purchase may
have been made with, the estimate is to be
in current money, as above, in the same
manner as that of property forcibly seized,
which is thus estimated in all cases.
Property not exempted by an intervening
defect in it.—lF a Misabbe complete in the
beginning of the year, and also at the end,
Zakat does not drop on account of its having
been defective at any time within that period-
because it is difficult to ascertain its com-
pleteness through the intermediate space;
moreover, in the commencement of the year
its completeness is requisite, in order to th'
establishment of the cause of obligation, and
so also the close of the year, in order to
Zakat becoming due ; but it is not so within
the interval.
Other chattel nroporfvmav bf unitfd with
money or bullion to form a Nisab.— THE
value of personal effects, or other article,
may be united with sold or silver ; that is to
say, if (for instanre) the proprietor should
have effects estimated at the value of one
hundred Dirms, and also one hundred £>irrm
in money .the value of th<> effects, as a'bove,
must be added to the one hundred Oftms, so
as that the whole may make one Nisah : and
Xakat is due thereon, because the obligation
to Zakat, in such prooerty, is occasioned by
the circumstance of it* beinfr kent with a
view to traffic*, although the shape in which
it is so kept he different with respect to earn
ot the two descrintions of it, tr^ck in chat-
tels berncr established by the act of the indi-
vidual but that in money by the construction
of the law.
And also silver with goM.— GoLpanH silver
may m the same manner be united, both
beinijr in effect of one nature, as standards of
estimation, and the possession of each equally
causing the obligation to Zakat.
GOLD and silver may be united, according
to Haneefa, in respect to their value;* but,
arcordmcr to the two disciples, in rwect to
their parts : and t^e consequence of this dif-
t0 s?y< may bc both ^solved into
k ,u°tby the rcsP^ctive weight of
but by a ereneral valuation n
ference of opinion is, that if a man were
possessed (for instance) of one hundred
Dirms in silver, and five Miskals of gold (the
value of which would amount to one hundred
Dirms), this person would be subject to Zakat
according to Haneefa, but not so according
to the disciples ; for these latter sty that, in
ascertaining the Zakat of qold^ and silver,
regard is to be had to the quantity only, and
not to the value ; whence it is that Zakat is
not due upon a vessel of silver, where the
weight is short of two hundred Dirms, al-
though the value should be to that amount,
or beyond it: Aboo Haneefa, on the other
hand, contends that cold and silver are
united with each other on account of their
v»omo?eneity, which is established between
them in respect to their value, but not in re-
spect to their substance.
CHAPTER IV.
•
OF THE LAWS RESPECTING THOSE WHO COME
BEFORE THE COLLECTOR.
Declarations rfioectin* property, when
miflf UP/WI oath, to be credited. — IF a person
come with hii property* before the collector
IT! say, "ft is so many months since this
property has come into my possession, and a
veir has not vet elapsed ;" or, "I am in-
oVhted so and so" and make oath of the
same, the collector is to credit him, and
must not exact anvthincr, because this person
*tand* as a H^nclant denvinor his obligation
to Zakat : and the declaration if a defendant,
when supported bv his oath, must be ere-
^ited. So al«»o, if a nerson were to declare
that he had atreadv paid the Zakat upon such
property to a former collector, his declara-
tion must be credited, because the collector,
in taVHg Zakat, act* m»relv as a Trustee,
and the Zakat comes to and remains with
him as a denosit : and the declaration of the
above nerson amounts onlv to his having de-
noqited the trust in its proner place, and this
is to be cr^rliteH, provided there should have
Keen another collector there within the year ;
hut if. on thp contrary, there should have
heen no other collector on that station within
th(» current y?*rt the affirmation and oath are
not to bc credited, since, in this case, the
faUohood i« manifest. And, in like manner,
if the nroprietor were to declare that he had
alr^dv en id the Zakat unon such property
in his own city, by having there bestowed
the same nr»on*the poor, his declaration must
he credited, because a proprietor, whilst in
hi«* own Hty, is entrusted with the oayment
and distribution of the Zakat upon his oro-
perty, and he continues to be so until he
comes forth and brings his property before
the collector, when«the authority for lewinf
•Meaning merchandise, but not 8attle ;
and the word bears the same sense througk-
ZAKAT.
(VOL. I.
Ztkat rests with the latter, as the property ' to exact from him what is usually exacted
and the proprietor do both then come within ' -r -'---- --** j -._•--•-.
his jurisdiction.* — In short, in all these four
instances, the declaration of the proprietor
is to be credited. And in the same manner
the declaration of a proprietor, respecting
Zakat upon cattle, is to be credited in the
three first instances, but it is not so in the
fourth, although he should confirm his at
testationby an oath. Shafei maintains that
it is to be credited here also, as the pro-
prietor appears, by the tenor of his declara-
tion, to have rendered the right duly to the
claimant. — In opposition to this, our doctors
argue that the right of exacting the Zakat
upon cattle appertains solely to the Sultan,
and the pr6prietor is not at liberty to pre-
clude the Sultan's right ; contrary to the
case of property of other nature, such as is
termed, in the language of the law, Batena
[internal, or domestic], the rendering of the
Zakat upon which is committed to the pro-
prietor.—It is to be observed that some have
said, respecting cattle, that the Zakat which
was* paid by the proprietor himself in the
first instance is the true obligatory Zakat,
and that whatever may be afterwards ex-
acted of him under that denomination, is
consequently an oppression ; whilst others
consequently an uppicaaiui* , wmioi, v^ni^io . ana noining L
maintiin that this latter is to be considered I object of taxati
as the obligatory Zakat, and the former to
be held as an act Nifl, or gratuitous ; and
this last doctrine is approved.— Now a ques-
tion here arises, as the assertion of the pro-
prietor is to be credited, whether he ought to
produce his writing of discharge [voucher]
or not ?— -Mohammed, in the Jkma Sagheer,
has not required this as a necessary condi-
tion ; but in the Mabsoot he has made it a
condition ; and this latter opinion (according
of aliens, without paying any regard to his
declarations in those points in which the
declarations of a Mussulman or Zimmee are
to be credited, although he should swear to
the same, excepting where he declares, con-
cerning his female slaves, that those slaves
are his Am-Walids ;• for, in all other species
of property, his affirmation is not worthy of
attention, because the impost which is thus
levied upon him is not in fact Z akatvt but
rather a contribution exacted as a return for
the protection he receives, and which is re-
quisite for the safeguard of whatever he may
possess ; it is therefore proper to take from
him the impost usually levied upon aliens,
except where he declares, as above, with
respect to his female slaves, that they are his
Am-Walids, which declaration must be at-
tended to and credited ; because, if an alien
were to declare, concerning any other per-
sons who accompany him, that "they are his
children," his declaration is approved ; and
so, in like manner, with respect to his female
slaves, as the rights of the Am-Walid are
derived from the establishment of the child's
descent, and consequently the female slav«
do not appear to be transferable property ;
and nothing but transferable property is an
Proportion levied upon merchandise. —
FROM a Mussulman is taken the fourth of
the tithe of his property; and from a Zimmee
the half of the tithe ; and from an alien the
tithe ; Omar having instructed his collectors
to this effect.
Zakat to be levied on the property ofalienst
to the value of fifty Dtrmv, or upward*. — IF
an alien should come before the collector with
property to the amount only of fifty Dirms,
to a tradition of Hoosn) is that of Abpo | nothing whatsoever is to be exacted" of him,
Haneefa. The principle of this doctrine is, | except \
that as the proprietor pleads a discharge,
and as he possesses a voucher of such dis-
r. where aliens exact contribution upon
an equally srnall property of Mussulmans ;
in whi/A case a similar impost must be laid
charge, he ought consequently to produce it; | upon thi,s amount, the property of an alien,
whilst the principle of the doctrine main- ' * -..-.» /• i- .__ • 1..
tamed in the Zahir-Rawayet is that as one
writing resembles another writing, they are
not admitted as proofs.
Declarations of Z \mmees to bs credited. —
IN whatever instance the declaration of a
Mussulman, with respect to Zakat, is to be
credited, that of a Zimmee f must be so like-
wise, because a Zimmee is subject to double
the impost of a Mussulman : and hence all
the conditions which are to be regarded, with
respect to the property of the latter, must be
equally so with respect to that of the former.
But not those of A/tens.— If an alien ap-
pear before the collector of the Sultan with
articles of merchandise, it behoves that officer
,*This comment upon thgtlaw (as in many
other instances) c has reference to some local
customs or circumstances which cannot ' now
be ascertained.
•£An infidel subject of the Mussulman go-
vernment.
because what is taken from aliens is merely
in the way of reciprocity ; contrary to the
case of Mussulmans or Zimmees, as what is
levied upon them is in fact Zakat, either
single or twofold, whence it is indispensable
that the property with them amount to a
Nisab. — This is the doctrine of the Jama
Sagheer. In the Mabsoot, under the title
Zakat, it is written that if the property of
an alien should be small (that is, short of a
Nisab), nothing whatever is to be exacted of
him, let the custom of aliens, in this respect,
be what it may, because a proportion of pro-
perty not amounting to Nisab is invariably
to be considered as Afoo, or exempt ; and
also, because a trifle of this sort is not sup-
•Slaves who have borne children to him.
f Because, as being an act of piety, an
infidel is held to be incapable of paying
Zakat ; wherefore it cannot be considered in
that sense, although it be exacted under that
denomination
BOOK I. CHAP. IV.]
fcAKAT.
IS
posed to stand in need of the State's protec-
tion, as travellers must necessarily carry
with them small sums for the purpose of
expenses, and robbers do not pay any atten-
tion to such trifles, not considering them ob-
jects of their pursuit.
Proportion to be levied upon the property
of aliens. — Iran alien come before the col-
lector with two hundred Dirms, and it be
uncertain what tax foreigners levy upon a
similar property of Mussulmans, in this case
tithe is to be taken ; and if it be known that
foreign states exact only a twentieth or a
fortieth, a similar proportion is to be taken;
but if it be known that they take the whole,
yet the Mussulman collector must not act
accordingly, because this is an act of rapine.
And if it be known that they take nothing of
the Mussulmans, it is then proper that no-
thing be taken from them, in order that the
Mussulman merchants, travelling into foreign
countries, may remain free of impost ; and
also, because where foreign states observe
kindness towards Mussulmans, and exact
nothing of them, it is requisite that nothing
be exacted of them in return, as it behoves
the Mussulmans to preserve a character of
benevolence towards all men.
Must not be exacted repeatedly. — IF an
alien come before the collector, and the
latter exact the tithe of him, and he should
again pass near the station of the collector,
yet nothing more is to be exacted till the
completion of the Hawlan-Hawl, because, if
the tithe were to be repeatedly levied within
the year, the property would be annihilated,
and the impost is laid for the purpose of
protecting the property; moreover, the pro-
tection which is first granted continues until
the beginning of a new year, when the Aman,
or protection, commences de novo, because it
is not permitted to an alien to remain in a
Mussulman territory beyond the space of a
year. But the tax may be aqain Demanded
of him at the expiration of the second year,
as this does not tend to annihilate his pro-
perty.— What is here advanced proceeds upon
a supposition that the alien has not returned
into his own country within the period of
the year, after this payment of the tithe, as
aforesaid; but if he should return thither, it is
to be again exacted of him upon his re-enter-
ing the Mussulman territory, even though he
were to go there on the very day of payment,
and to come again into the Mussulman terri-
tory on the same day, because every time he
thus returns into the Mussulman territory,
he returns under the virtue of a new protec-
tion ; moreover, the repetition of exaction
uponhisreturn cannot be considered as tend-
ing to annihilate his property, since on every
return hi is supposed to acquire a profit.
takat-tithe to be levied on wine.— If a
Zimmee or infidel subject, pass the station
of a collector with wine and pork, the col-
lector is to levy a tithe upon the former arti-
cle, but not upon the latter. Bv levying a
tithe upon the wine, is to be understood (not
upon the actmal article, but) upon the esti-
mated value of the article. The distinction
here made between wine and pork, is taken
from the Zahir-Rawayet. — Shafei says, that
nothing whatever should be levied on either
p^;k or wine, neither being legally subjects of
estimation. ZifTer, on the other hand, argues
that it should be levied equally upon both,
as both do actually constitute property among
Zimmees. Aboo Yoosaf also says that the
tax should be levied uponboth, pr' viewed that
they be found together upon the Zinimee ;
but possibly he is here to be understood as
making the pork an appendage to the wine,
whence it is that he adds "If the Zirnmee
were to come before the collector with either
wine or pork, singly, the tenth would be
levied on the former but not upon the
latter."— The reasons upon which the Zahir-
Rawavet proceeds, in this case, are twofold ;
FIRST, the estimated value of a thing which
falls under the description of Zooatal-Keem
stands as the ident-cal thing itself, and pork
is of this class.; whereas the value of an
article belonging to the class of Zooatal Imfel
does not stand in place of the identical
article*?, and wine is of this description ;
SECONDLY, the right of exacting the tenth is
vested in the collector in consequence of the
protection afforded by the state ; and a Mus-
sulman has a right to take measures for the
preservation of his wine, for the purpose of
making vinegar of the same, whence it is
also lawful for him to protect the wine of a
Zimmfe ; whereas he is not permitted to take
any of his pork, insomuch that if a Zimmee,
being possessed of pork, were to be converted
to the faith, it would be incumbent on him
to destroy it or throw it away ; and a Mus-
sulman not being allowed to take care of his
own pork, it follows that he is not competent
to the protection of the pirk of others ; and
hence the state not being considered as
affirdins protection to the pork of a Zimmee,
no tax can be levied upon it.
IF a boy or a womin of the Toghleb tribe
pass the station of a collector, with property,
nothing is to be taken from the former, but
he must exact from the latter the usual pro-
portion of oersons of that tribe, according to
what is said concerning the Zakat of cattle.
IF a person come to ths collector with
on<» hundred Dirms, declaring that he has
another hundred at home, and that the Haw-
lan-Hawl has elapsed, yet the collector is not
at liberty to take Zakat either upon those
hundred or upon the other ; because the one
does not come under his protection, and the
other r, short cf a Nisab,
No Zakat to be levied on Bazat or Mozari-
bat property — IF a person come to the col-
lector with two hundred Dirms, which are
with him as a Bazat, the collector must not
impose any Zakat upon it,— because this per-
son is not empower JL\ by the actual proprietor
to pay Zakat ; and so also, \f tha^property
were in his hands in the way of Mozaribat.-
This is the doctrine of the two disuples ;
and Haneefa has also subscribed to it; and
the reason upon 'vhich it is founded in that
14
ZAKAT.
I.
the Mozarib is neither the actual proprietor
nor the representative of the proprietor, with
respect to the payment of Zakat : wherefore
Zakat is not to be required, except where the
Mozarib, by the nature of the contract, de-
rives such a proportion of profit from the
capital stock entrusted to him as amounts
to a Nisab ; in which case a proportionable
Zakat must be levied, as he is the actual pro-
prietor of such proportion.
Mazoon slaves subject to it. — IF a Mazoon
slave, not indebted to any person, come be-
fore the collector with two hundred Dirms,
the Zakat mustbe levied.— Aboo Yoosaf says,
that it is not known whether Haneefa ever
retracted this opinion, and delivered another
(that the collector should not levy Zakat upon
a Mazoon) or not ; but from his subscribing
to the opinion of the two disciples in the
preceding case (to wit, that no Zakat is to be
levied upon a Mozarib), it may be presumed
that he has also agreed that none is to be
levied upon a Mazoon, as he is not the pro-
prietor, but his master, the1 former having
only a power of transaction, with respect to
the 'property in question, so that he stands in
the same predicament with a Mozarib. —
Some have said, that between a Mazoon and
a Mezarib there is this difference, that the
former transacts with the property on his
own account, and hence is subject to its obli-
gations ; for, as he cannot have recourse to
his master, but may be sold, in order to the
fulfilment of such of its obligations as he is
legally liable to, it follows that he does stand
in need of protection for it upon his own
account ; contrary to a MozaribT for he man-
ages the Mozaribat stock in the manner of
an agent, and hence whatever may attach to
him in the obligations thereof he takes again
from the proprietor, wherefore the owner of
the property is the person who requires pro-
tection for it : and there thus appearing an
essential difference between a Mazoon and
a Mozarib, no inference can be drawn of
Haneefa1 s opinion respecting the former from
what he has conceded concerning the latter.
Unless accompanied by their owner. — IT
is to be observed that if the master of the
Mazoon accompany h»m, the collector must
take the Zakat (not from the Mazoon, but)
from the master, he being the actual pro-
prietor ; the Zakat, therefore, is to be taken
from him, except where it appears that the
slave is indebted to such an amount as com-
prehends the property in question; in which
case no Zakat whatever can be required of
the master, since (according to<Haneefa) the
master, in this circumstance has, in fact, no
actual property in the Mazoon's hands : —
and (according to the two disciples) the right
of another is connected with the property,
namely, the debt — and consequently no Zakat
is due upon it, they holding that debt upon
a Property forbids the exaction of Zakat.
Ira merchant, Keing in a country where the
Schismaticks prevail, go to a collector of the
SchismaSicks, and there pay the Zakat upon
his<property, and afterwards come before a
collect tor of the Orthodox, the latter may
again exact Zakat of him, because in going
before a collector of the Schismaticks, and
there paying Zakat, he was in fault.
CHAPTER V.
OF MINES AND BURIED TREASURES.
Distinctions. — THERE are three legal terms
which particularly belong to these subjects,
and which are employed for the use of dis-
tinction;Madin, Kanz, and Rikaz: by Madin
is understood the place in which the ore or
metal is naturally produced ; by Kanz, trea-
sure.or other property, buried in the ground;*
and Rikaz applies equalfv to either, to Madin
literally, and to Kanz metaphorically.
Mines subject to a Zakat of one-fifth. — IF
there be discovered, in Kherajee or Ashooree
lands (that is, lands subject to tithe or
tribute), a mine of gold, silver, iron, lead or
copper, it is subject to a Zakat of one-fifth,
according to our doctors ; and this Zakat is
termed Khamg,f — Shafei has asserted that
nothing whatever is due upon a mine, because
it is free to the first finder indifferently, and
is therefore the same a* game ; but yet if,
the metal be produced from the nnine, it is
subject to Zakat independent of Hawlan-
Hawl, that having been constituted as a con-
dition of Zakat merely to afford time for in-
crease, whereas here the identical subject
itself (the metal) is increase of property ;
wherefore the lapse of Hawlan-HawI is not in
this instance required. The arguments of
our doctors, on this subject, are twofold ; — -
FIRST, the ordinance of the Prophet, who
directed that upon Rikaz there should be
imposed a fifth ; and the term Rikaz applies
to mines, as was already demonstrated : —
SECONiy.Y, £hfc mine, as being discovered in
tithe of tribute lands, must at one period have
been prOpertv of the infidels, and after-
wards have fallen into poseession of the Mus-
sulmans by conquest, wherefore the whole
falls under the description of Ghaneemat. or
plunder ; and one-fifth is due upon plunder :
— contrary to the case of game, the property
in which cannot be traced to any antecedent
proprietor.
OBJECTION. — If the mine be thus resolved
into plunder, it should follow that, as such
the products of it is the common property of
all the w?rriors.
REPLY. — The property of the warriors is
•This is a common practice in all parts of
Asia. Treasures are hidden in the ground
on the commencement of a war, or other
troubles ; and it frequently happens that, the
depositors perishing, the treasure remains
concealed, perhaps, for manv years, till it be
discovered by accident, and at a time when
no legal claimant can be found.
tLit<5rally, a fifth. It is elsewhere trans-
lated double tithe.
BOOK I.-CHAP. V.]
ZAKAT.
established in the mine constructively, in
virtue of the establishment of their property
in the surface of the territory : but the dii-
coverer of the mine is the actual acquirer of
it ; wherefore the property of the warriors is
established in one-fifth, their right being
only constructive; and that of the discover is
established in the remaining four-fifths, as
his right is actual ; whence it is that thote
four-fifths are reserved to him.
Case of a mint within a house. IP a person
discover a mine within the precincts of his
own habitation, nothing is due upon it, ac-
cording to Haneefa. The two disciples hold
that a fifth is due upon that also, in con-
formity to the traditionary ordinance already
quoted, because that applies equally to the
present case. Haneefa argues upon this, that
a mine is a constituent part of the land in
which it lies, as being supposed to have been
originally created with it, and nothing being
due upon the ground generally, i* follows
that nothing is due upon anv particular por-
tion of it (such as the mine, for instance),
because a part does nof differ from the whole:
contrary to the case of a Kan?, which is no
constituent nart of the soil, as not having
been oricrinnllv created with it, but deposited
there bv some person.
Or in land* which are private firopertv —
TF the said mine be discovered, not actually
in the house of the' finder, but in lands, suh-
iVt either tr> the tribute or tithe, which are
his own especial and exclusive property, in
this case^there are two opinions recorded of
Hanecfa's doctrine ; one, that no Zakar what
ever is due. anv more than if rhr mine had
been discovered within the house of the
finder ; another, that a fifth is Hue unon it :
the former of these opinions is mentioned in
the Mahsoot. and thp latter in the Tama Ras-
heer : and the principle upon which the latter
opinion proceeds is, that between a house and
lands there is a manif^t rlistinttion, because
the ground on which a house stanrf* fc not
supposed to be any wav proH»icfM*» of the
fruits of the earth (whence it is that no fqy
of anv kind is levied upon it, insomuch that,
if n date-tree were hv accident to arow within'
x dwelling, and to nrodt?re fruit, vet nothi-r
is due upon the fruit), whereas Innd*. on *hr
contrarv, as being Productive, are not thus I
exempted from tithe and tribute, and mn- '
seqtientlv a fifth is due upon all mines which !
are found in uVm. !
And of buried treasure*— TF a p^on ^nrl
* *£a.nz' or deposit, of buried treasure a
fifth is due upon it according fo th<- o
of an the doctors, in confnrmitv to the
tionarv ordinance already quoted, the e
SIOP there used fPiVa/f apnlvm* to
It is to be observed, however, that ite
treasure in question be coin, bparfnp the im-
pression of Musmlman monev (such a« the
words of the CreeH*\ the Kan* stands as
•MeSmy the Kulma; or MWulman Con-
fession of faith, "There is no God, but one
Uod, and Mohammed is thePronhet of God "
a Lookta, or trove-property, the laws con-
cerning which are explained elsewhere - —
yet, if it bear the impression of infidel coin-
age (such as the image of a gaint or idol),
a fifth is due upon it in all cases,— that is
to say, whether a person may have found
the same in his own grounds, or in those
of another, or in common lands which are
not the property of any person ; and the
fifth is thus due upon the authority of the
traditionary ordinance to which we have iust
referred.— It is here proper to remark, that
if the treasure be found in common land,
four-fifths of it appertain to the finder, as
having recovered it, because the other war-
riors had no information concerning it, ind
of course no share in the discovery ; and con-
sequently he has an exclusive right to it : —
and the same rule obtains if it be found in
appropriated land, whether such be his own
property, or belonging to another (according
to Aboo Yoosaf), because the claim is estab-
lished in virtue of salvage, or recovery, and
the treasure has been recovered by the finder.
Mohammed and Haneefa maintain, on the
contrarv, that the treasure is the property of
him upon whom the Imam had beitowed the
lands, originally, at the period of subjuga-
tion, who is termed the Mokhuttut-le-
hoo, or first grantee, upon the principle that
whoever has the first exclusive property
in a soil is the true proprietor of whatsoever
may be contained in it, although he should
not have obtained visible possession thereof,
the same as where a person catches a fish
with a peart in its maw, in which case he
becomes the proprietor of the pearl, although
he has not Actually laid his hands upon it,
nor knows of its being in the fish's belly.*
And it is further to be observed, that if the
first qrantee should have sold his lands, yet
he Hoes not forfeit his right to any Kanz, or
buried treasure, which may be afterwards dis-
covered there, as that does not form a part
of the soil, like mines, which as being a con-
stituent portion of it, upon a transfer by
snip become the property of the purchaser.
And if the first grantee be unknown, in this
cas-?, according to the opinion of the learned,
the four-fifths go to him who was the first
known proprietor from the period of the
establishment of the Mussulman faith, that
is to sav, him bevond whom no antecedent
proprietor can he discovered — And if the
treasure should consist of coin, the impres-
sion of which is so far effaced as to render it
doubtful whether it be infidel or Mussulman
*This is a case of some curiosity, and
affords an instance (amone a multitude of
others) of points of law adduced in elucida-
tion of passages to which thev do not appear
to have an immediate reference.— From the
above it appears, that if a man were to catch
a fish with a iewel in its belly, and wereto
sHl the fish (not knowing whit it contained).
he would have a right to recover the jewel of
the purchaser.
16
ZAKAT.
[VoL. I.
money, in this case according to the Zahir-
Rawayet) it is to be considered as of the for-
mer class: some however, have observed that,
in modern times, it is held as Mussulman
coinage.
Of mines or buried treasure found in a
foreign country. — IP a Mussulman go under
protection into a foreign country, and there
find a Rikaz within the house of an infidel,
whether it be a Madin or a Kanz, let him
deliver the same up to the proprietor, in
order that treachery and breach of faith may
not be induced ; because whatsoever is in that
country belongs of riqht to the people of it :
but if he were to find the Rikaz in the open
country or desert, it belongs to him, no per-
son having any exclusive riuht in it so
as to make his appropriation of it an act of
treachery and here the fifth would not be
due ; as treasure, thus found, docs not bear
the construction of plunder, the person who
finds it standing as a thief, and not as a
warrior.
Precious stones not subject to impost. — No
fifth is due upon turquoises, such as are
found in mountainous places ; because a tur-
quoise is a stone ; and the Prophet has said,
"Upon stones there shall be no KHAMS."
Quicksilver subject to impost of a fifth,
but not pearls or amber. — Upon quicksilver
there is clue a fifth, according to Hancefa, in
his last opinion recorded upon this subject :
contrary to the opinion of Aboo Yoosaf. —
Upon pearls and amber there is no fifth due,
according to Hanecfa and Mohammed. -Ahoo
Yoosaf maintains that upon those, as well
as upon all gems procured from the sea, there
is a fifth ; because Omar usf jl to levy a
fifth upon rmber. — Haneefa and Mohammed
argue, that the depths of the sea do not
come under the description of parts subju-
gated by conquest ; and hence anything
procured thence cannot be defined plunder
although it shouM consist of gold or silver ;
and the case of Omar levying a fifth upon
amber existed only where that article was
cast up by the sea upon th? shores ; and
here also they coincide that the fifth may be
levied.
IF a penon find, in common ground, a
deposit of chattel property, such as vessels
or cloths, the same is the property of the
finder ; and there is a fifth due upon it, be-
cause this comes untk-r the description of
plunder, the same as gold or silver.
CHAPTER VI. f
OF ZAKAT UPON THE FRUITS OF THE EARTH.
A tithe due upon the product of lands
watered by natural means. — UPON every-
thing produced from the ground there is due
a ''tenth, or tithe, which Is termed Ashar ;
whether the soil* be watered by the annual
overflow of great rivers (such as the Oxus
and ShVhoon). or by periodical rains; except-
ing the articles of wood, bamboos, and grass
which are not subject to tithe — This is accord-
ing to Haneefa. The two disciples say that
tithe is not due except upon such things as
are permanently productive,* which are sub-
ject thereto, provided the product amount to
five Wusks, or sixty Saas ; and they further
hold that herbs are not subject to tithe. From
this it appears that the difference of opinion
between Haneefa and the two disciples exists
with respect to two points in particular ; — •
FIRST, the specification of the quantity as a
condition ; SECONDLY, that of permanency in
the subject. The arguement of the two disci-
ples, with respect to the former of these, is
twofukl ; — FIRST, the Prophet has ordained
that there should be no Zakat on less than
five Wusks : SECONDLY, tithe being as alms,
to render it obligatory it is requisite that
some Nisab be ascertained and established,
so as to confine the contribution to the rich. —
The argument of Haneefa is that the Pro-
phet ordained that an ASHAR should be held
due upon everything produced from the
ground, which ordinance is general in its
application, and without any specification of
quantity ; and, with respect to the ordinance
quoted by the two disciples, it is to be taken
as applying solely to articles of commerce ;
that is to say that "there is a ZAKAT upon
those articles, as MERCHANDISC, where the
quantity amounts to five WUSKS-;" because,
in the time of the Prophet, fruits were sold
by the Wusk, and the value of a Wusk was
estimated at forty Dirms, so that the value
of five Wusks was two hundred Dirms, the
amount of a Nisab in estimated property : —
and, with respect to their second argument,
the obligation to titho upon the fruits of the
earth is connected with what it yields only,
without respect to the proprietor (whence
it is that a tithe is due upon the product of
Wokf-Iands), how, therefore, should any re-
gard be had to the description of the pro-
prietor/as beincr rich? And hence also it is that
Hawlan-Hawl is not requisite in the present
case, that, having been established for the
purpose of ascertaining increase ; and the
fruit of the earth does itself come under this
description — The argument of the two disci-
ples, with respect to the second point is, that
the Prophet has ordained that, "upon vege-
tables (that is, herbs) no alms are duo ;"
and by alms is here to be understood tithes ;
as Zakat is not forbidden here, since it is due
provided the property amount to a Nisab. —
In reply to the*e observations, the arguments
of Haneefa are twofold ; — FIRST, the tradi-
tion before quoted ; — and, with respect to the
ordinance adduced by the two disciples, it is
to be observed, that by the term Sadka
[alms] there mentioned, is to be understood
such alms as are taken by the collector, but
not that contribution which falls under the
denomination of Ashar ; and in this Haneefa
also agrees, that the collector is not to take
*Such as fruit-trees.
BOOK I.— CHAP. VI.]
ZAKAT.
17
tithe from those articles ; — SECONDLY, articles
of product are often cultivated which are
not of a permanent nature, such as melons
and cucumbers ; and these are the increase
of the earth : and the cause of obligation to
the payment of Zakat upon Ian d is increase ;
whence it is that the land is subject to tri-
bute, and therefore tithe is also due : but,
with respect to the articles of wood, bam-
boos, and grass, the ground is not tilled or
prepared for the cultivation of them ; nay
it is usual to clear them away; yet, if a
person were to till the ground with a view
to the culture of such articles, his land
would be subject to tithe.
And an half tithe upon the product of
lands watered by artificial means. — LAND
watered by means of buckets,or machinery, or
watering camels, are subject to half tithe,* —
according to Haiieefa and the two disciples :
— the latter, however, coincide in this, under
the restriction, conditional, that the product
be of a permanent nature, and that the
quantity of product amount to five Wusk^s ;
whereas Haneefa does not specify any such
condition. — The reason why such lands are
made subject to half tithe only is, that the
expense of tillage greatly exceeds that of
lands watered by rains, or by the periodical
overflow of great rivers.
Rule respecting lands which partake of
both descriptions. — WITH respect to lands
watered a part of the year by rivers and a
part by labour, in regulating their propor-
tion of import, regard" is to' be had to the
greater portion of the year ; that is to say,
if the land be such as is watered by rivers
for the greater part of the year, the impost
is a tithe ; but, if it be watered for the
greater part of the year by labour, it is only
half tithe, or a twentieth.
ABOO YOOSAF has said that, upon every
article the amount of which is not estimated
by Wusks (such as saffron and cotton), tithe
is due, provided its value be equal totjiat of
five Wiuks of an article of the lovuesj value
so estimable (^uch as millet in the present
tunes) ; because articles, the quantity of
which the law does not hold to be estimable
by Wusks, can have their Nisab ascertained
only by estimation of the value ; as is the
ca-e with articles of merchandise. — Moham-
med, on the other hand, alleges that tithe
is due upon those articles, provided their
quantity amount to the number five of the
highest standard of ascertainment of quan-
tity with respect to each ; for instance, cot-
ton is weighed by Mans and Ham Is each
Haml containing three Mans ; a Nisab of
cotton therefore consists of five Hamls ;
saffron, on the other hand, is weiehed by
Dirms Astars, Rutls, and Mans fan d the
latter being the greatest of these, a Nisab of
saffron, consequently, consists of five Mans
weight.-~The reason upon which Mohammed
proceeds herein i^ that the Wusk is con-
stituted the standard of estimation of Nisab
*To wit, a twentieth of the whole product.
in grain & c. only on account of its being
the largest standard by which their quan-
tities can be ascertained ; and the same
principle operates with respect to all other
articles.
A tithe due upon honey : — TITHE is due
upon honey where it is collected in tithe-
lands. Shafei maintains that nothing is due
upon honey, because that is an animal pro-
duction, the same as silk, which being tithe-
free, honey is so likewise. — The arguments
of our doctors are twofold : FIRST, the Pro-
phet ordained that honey should be subject
to tithe ; SECONDLY, bees collect their honey
from blossoms and fruits, which articles
being subject to tithe, it follows that honey,
which is extracted from those, must be so
likewise : contrary to the case of silk worms,
because those feed upon leaves of trees,
which are not subject to tithe. Haneefa
holds tithe to be due upon honey, whether
the quantity be great or small ; he not re-
garding Nisab as essential in this article. —
Aboo Yoosaf has reported it as an opinion
of Haneefa, that the Nisab of honey is to
be ascertained by estimate, according to his
general tenet upon the subject of Zakat ;
and he further says, that nothing is due upon
honey, unless the quantity amount to ten
Kirbs (a Kirb being fifty Mans), because
this was the rule by which the trible of Syara
paid tithe on their honey to the Prophet,
Again, it is related as an opinion of Aboo
Yoosaf, that a Nisab of honey consists of
five Mans. According to Mohammed the
Nisab in honey is five Sirks (a Sirk con-
taining thirty-six Rutls), because the Sirk
is the largest standard of quantity in honey,
as the Wusk is in grain. And the same of
sugar-cane ; that is to say, according to Mo-
hammed, tithe is due upon sugar-cane where
the quantity of sugar produced from it
amounts to live Sirks.
And upon wild honey and fruits :--HoNEY
and fruits, collected in the wilderness, are
subjects of tithe. This is the doctrine of the
Zahir-Rawayet. — It is related as an opinion
of Aboo " Yoosaf, that nothing whatever is
due upon such articles, because the occasion
of obligation to Zakat is the land being of a
productive nature, which is not the case in
this instance.- The principle upon which the
Zahir-Rawayet proceeds herein is, that all
that is required to constitute land being pro-
ductive, is the circumstance of its affording
produce of any sort ; and produce does ap-
pear in the articles above mentioned.
And upon all the product of tithe lands,
indiscriminately : — TITHE is due upon all the
produce of tithe-lands indiscriminately ; nor
is any deduction to be made on account of
the expense of men or cattle employed in
tilling those lands, because the Prophet has
ordained that dues should be different in
proportion to the c^fference of expense, an4
also that lands watered by rain shall J^e sub-
ject to tithe and those watered by labour to
half-tithe ; wherefore the deduction «f ex-
pense is needless.
18
ZAKAT.
[VOL. I,
And double tithe upon those lands tuhen
held by Togltbees. — UPON tithe lands, pos-
sessed by persons of the TOQLIB tribe, a two-
fold Ashar, or fifth, must be levied ; and in
this all the doctors agree. —It is recorded,
however, as an opinion of Mohammed, that
upon tithe-lands which may have been pur-
chased by a Toglibee of a Mussulsman, a
single tithe only should be levied ; he hold-
ing that the imposition upon lands does not
suffer any alteration in consequence of a |
transition of the property. I
Cases of transition of property in land !
subject to double tithe. — IF a Zimmee, or in- i
fidel subject, purchase land of a Toglibee, j
from which double tithe had used to be col- i
lected, the Zimmee must also pay double [
tithe upon it. In this all our doctors coin- !
cide, because it is lawful to require twice as |
much of a Zimmee as of a Mussulman, — ,
whence it is that, if such an one were to '
come before the collector with merchandise, |
twice as much would be exacted of him as
of a Mussulman. And the same rule obtains !
(that is to say, the same proportion of tithe
continues to be imposed upon those lands)
where a Mussulman purchases them of a j
Toglibee ; or where a Toglibee, being the !
proprietor, becomes a Mussulman. Haneefa '
holds this opinion in all cases, whether the i
land had originally belonged to a Toglibee, j
or the Toglibee had purchased them of a \
Mussulman,— for in either case the rule of i
double impost continues, with respect to |
them, where they are purchased by a Mussul- ;
man, — because he holds double impost upon
those lands to have been already irreversibly
established,* and, consequent^ that this
incumbrance on the lands devolves to the j
Mussulman purchaser along with the pro- i
perty, in the same manner as obtains in the !
case of a sale of tribute-lands. Aboo Yoosaf
maintains that, in the case here recited, a
single tithe only is to be collected from the ,
Mussulman proprietor ; nor will the lands, j
whilst in his possession, be subject to any ;
further impost, since the only principle upon j
which double tithe had been exacted of the i
Toglibee was the infidelity of the proprietor; !
ancfthis, upon the devolving of the property '
to a Mussulman, is done away, Aboo Yoo. af,
in the Kaclooree, has further said that (ac-
cording to the Rawayct-Sahceh) the opinion
of Mohammed is the same as that here re-
cited. Our author, however, remarks that
it is most certain that Mohammed coincides |
entirely with Haneefa in his general priaci- j
pie, that the impost upon the land continues '
as before ; but he [Mohammed] carries this
still farther ; for, as where a Mussulman pm-
chascs lands, subject to double impost, of a
Toglibee, the same continues upon him, so
if a Toglibee were to purchase lands of a
Mussulman, subject only to single impost,
•By original compacts between the Mus-
sulmans, and Toglibees. This is expressed at
large under the head of Seyir.
he will not have to pay any more than the
said single impost, since a change in the
property makes no alteration with respect to
those rules to which the lands are subject.
Land devolving from a Mussulman to a
I Zimmee becomes subject to tribute. — IF a
j Mussulman sell his lands to a C hristian, who
| is a Zimmee and not a Toglibee, and the
Christian aforesaid have seizin of those lands,
Haneefa holds that tribute is to be collected
from the same, the payment of tribute being
a consequence of infidelity. According to
Aboo Yoosaf, the double tithe collected there-
from is to be expended upon the objects of
the expenditure of tribute, which is a mode
of adjustment easier than that of thus ex-
changing tithe for tribute. Mohammed holds
that the lands remain subject to tithe as
before ; and he morever maintains that the
tithe, collected from these lands, is to be ap-
plied to the purposes of Zakat. — It is to be
observed that, if a Mussulman were to take
those lands of a Christian in right of Shaffa,*
or if the property in them were to revert to
the seller, being a Mussulman, on account of
the sale having been invalid, in either case
the lands remain subject to tithe, as before ;
in the first instance, because the Mussulman,
as Shafee,f must effect his purpose (of ob-
taining the lands in right of Shaffa) by
means of a contract of sale with the proprie-
tor, wherefore the transaction here, in fact,
amounts to his purchasing the lands ; and,
in the second isntance, because, by the pro-
perty in the land reverting to the Mussul-
man proprietor, on account of an invalidity
in the sale, the case remains the same as if
no transfer by sale had ever been made ;
moreover the Mussulman's right is in no re-
spect affected by such invalidity, since it is
proper that that transaction be altogether
disregarded ; whence the case remains the
same as if no sale had ever taken place ; and
for all these* reasons the land will continue
subject to tithe as before.
Caset of a Mussalman. — IF a Mussulman
convert the ground of his habitation into a
garden, the same having been his original
property (that is to say, he being the first
grantee), he owes tithe upon it where he
waters it with tithe-water, or tribute where
he waters it with tribute-water, because this
land is not, in its original description, either
tithe-land or tribute-land, and in such ground
the mode of watering is the standard of the
expense of cultivation.
Case of a Majoos. — A MAJOOS! does not
owe either tithe or tribute for his habitation,
because Omar exempted dwellings from all
impost. But, if the Majoos were to convert
the ground of his habitation into a garden,
*Neighbourhood, or conjunction of pro-
perty, which gives a right of pre-emption.
•fThe person in whon* the right of pre-
emption lies.
J Meaning a worshipper of fire ; —a Magus
jaian.
BOOK I.— CHAP. VII.]
ZAKAT.
19
he owes tribute upon the same, although he
should water it with tithe -water, as he cannot
lie under any obligation to pay tithe, because
that bears the sense of an oblation and act of
piety/ of which an infidel is held to be incap-
able ; he is appointed, therefore, to pay tri-
bute, which is conformable to his situation,
as being a sort of infliction. Our author re-
marks that analogy (from the opinion of the
two disciple), would suggest that the Majoos
owes tithe where the land is cultivated with
tithe-water ; single tithe, according to Mo-
hammed ; and double, according to Aboo
Yoosaf : — the reasons for this have been re-
lated before.
Definition of tithe- water and of tribute-
water. — RAIN-WATER, and the water of wells
and fountains, and of lakes which are not
under the particular authority of any indivi-
dual, is what is termed tithe-water ; and the
water of the artificial canals and aqueducts,
constructed by the kings of Ajim (such as
the river of Yezdejird), is tribute-water.
THE river of Kharzim, called the Jyhoon
[Oxus is tithe-water, according to Moham-
med ; and so likewise is the Shyhoon, and
also the Dijlet [Tigris] and the Firat [Euph-
rates], because thoce rivers arc not under the
authority of any person whatever, nor is any
one entitled to an exclusive privilege with
respect to them, wherefore they are the same
as the open sea. Abop Yoosaf considers the
waters of all those rivers as tribute- water,
because bridges of boats are occasionally
thrown over them, which is an act of seizin,
evincing that those who do so are the guar-
dians of the stream ; and hence the water of
those rivers must necessarily be deemed
tribute-water.
Impost upon land the property of Toglib
women or infants. — THE lands of infants or
women of the Toglib tribe are subject to the
same laws as those of the men of that tribe :
that is to say, upon their tithe-Iandi is im-
posed double tithe, and upon thei& tribute-
land single tribute ; because peace was made
with them on the terms of double contribu-
tion to purposes of charity, but not to the
service of the state : moreover, the lands of
Mussulman infants or women are subject to
a single tithe, and therefore the same is to
be levied twofold upon the lands of Toglib
women and children.
UPON fountains of pitch or bitumen, or
wells of sulphur, nothing is due where they
are found in tithe- lands, because those pro-
ductions do not come under the description
of growing out of the earth [vegetables], but
are rather the same as the water of fountains,
which sprung out of its bosom, and are not
subject to any impost. The proprietor of
such placed, however, is subject to tribute
where they exist in tribute-lands ; but this
is to be understood only provided the con-
tiguous soil be Capable of cultivation, because
the imposition of tribute depends upon the
proprietor of the land being able to cultivate
the same.
CHAPTER VII.
OF THB DISBURSEMENT OF ZAKAT, AND OF
THE PERSONS TO WHOSE USB IT IS TO BE
APPLIED.
Persons to whose use Zakat is to be applied.
— THE objects of the disbursement or Zakat
are of eight different descriptions : FIRST,
Fakeers; — SECONDLY, Miskeens;* — THIRDLY,
the collector of Zakat, (provided he be not a
Hashimeef); — FOURTHLY, Mokatibs, (upon
whom Zakat is bestowed, in order to enable
them, by fulfilling their contract of Kitabat,
to procure their freedom); — FIFTHLY, debtors
not possessed of property amounting to a
Nisab;— SIXTHLY, Fee Sabeel Oola [in the
service of GoclJ]; — SEVENTHLY, Ibnus Sa-
beel, or travellers; —and EIGHTHLY, Mowlk-
futal-kaloob,§ And those eight descriptions
are the original objects of the expenditure of
Zakat, being particularly specified as such in
the KORAN; and there are, therefore, no other
proper or legal objects of its application.
With respect tft the last, however (Mowle-
futal-kaloob], the law has ceased to operate,
since the time of the Prophet, because he
used to bestow Zakat upon them as a bribe
or gratuity to prevent them from molesting
the Mussulmans, and also to secure their
occasional assistance ; but when God gave
strength to the faith, and to its followers,
and rendered the Mussulmans independent
of such assistance, the occasion of bestowing
this gratuity upon them no longer remained ;
and all the doctors unite in this opinion.
Definition of the terms Fakeer and Mil-
keen. -By tte term Fakeers is to be under-
stood persons possessed of property, the whole
of which, however, amounts to somewhat less
than a Nisab. By Miskeens is understood
persons who have no property whatever. The
comment upon the terms Fakeer and Miskeen
is recorded from Aboo Haneefa. Some, how-
ever, hold the reverse description to be true.
Allowance to the collector.~Tn* Imam is
to allow the officer employed in the collection
of Zakat as much out of it as is in propor-
tion to his labour : as much, therefore, is to
be allowed as may suffice for himself and his
assistants ; and his allowance is not fixed to
an eighth. Shafei argues that Zakat, being
appropriated to eight different objects, be-
*Fakeer and Miskeen both apply to per-
sons in want; the distinction between these
two terms is fully explained in the definition
of them a little lower down.
f A descendant from the tribe of the Pro-
phet.
JThe meaning of this phrase is more par-
ticularly described in another part of this
chapter.
§The translator is not able to find any
UiiUlllal ^ »*»••/»«**» w* vnv. %.i*.«»w» v, »••••»- -- -- r
bable that some tribe of these is alluded to
in this place.
20
ZAKAT.
[Vox,. I.
comes thus divided into eight equal lots, of
which one is the right of the collector, who
is consequently entitled to an eighth of the
whole. Our doctors argue that, as Zakat is
paid to the collector, not as alms, but in the
manner of a reward for service performed,
it follows that the proportion paid him must
be whatever may suffice for that purpose ;
and hence it is that the collector is entitled
to pay himself out of the collections of Zakat
although he should be rich.*
Definition of other terms.- BY the phra-»e
Feear-Rikab, mentioned in the KORAN
(where it treats of the objects of expenditure
of Zakat), is to be understood Mokatibs: this
definition is taken from Seyid Ben Jeeroo.
And by the term Gharumcen, in the same
passage, are meant debtors : Shafei says that
it means persons who have involved them-
selves in composing the differences of others.
By the phrase Fee Sabeel Oola, in the same
passage, is to be understood (according to
Aboo Yoosaf) a person who, by proverty of
estate, is incapacitated andr» cut off from
taking a part in the wars of the faith ; that
is, in the Jihad Farz. Mohammed, on the
contrary, argues that the phrase here men-
tioned applies to a person who, by poverty,
is incapacitated from performing pilgrimage:
the latter description, however, is necessarily
implied and understood in the former ;
whence the phrase in question may be said
to apply to both. It is to be observed that
(according to our doctors) no portion of Zakat
is to be paid to such warriors as are in a state
of affluence, none being objects of its appli-
cation but those who are poor.,,
BY the term Ibnus Sabeel [travellers] is to
be understood persons, in a strange place,
having left their property at home, and who
are consequently destitute of means of sup-
port- - ,
THE seven descriptions of persons here
specified are the proper objects of the ap-
plication of Zakat ; and a proprietor (who
chooses to disbtuse his Zakat himself, and
not to pay it to the collector) is at liberty
either to distribute it, in equal shares, among
se-ven persons of those different descriptions,
or to pay the whole to one of them.-— This is
the opinion of our doctors.— Shafei has said
that a proprietor is not at liberty himself to
disburse the Zakat upon his own property in
any other way than bestowing a part upon
three individuals of each several desciiption.
The arguments on both sides here turn 011
some peculiarities in the Arabic language.
Our doctors take their opinion from Amroo
Bin Abbas. *
Zakat not to be bestowed upon Zimmees.
— IT is not lawful to bestow Zakat upon a
Zimmee, or inlidel subject, because the Pro-
phet directed Maaz, saying, "Take ZAKAT
*An objection and reply are here omitted,
as they turn solely upon points of verbal
criticism, and consequently do not ' admit of
an intelligible translation.
from the rich Mussulmans, and bestow it upon
the poor Mussulmans/ ' — But although infidel
subjects are not entitled to share in Zakat,
yet other alms may be bestowed upon them
in the manner of Sadka, or almsgift. — Shafei
says that they aie prohibited from partaking
of these also, as well as of Zakat : but our
doctors ground their opinion on this point
upon a precept of the Prophet, who has or-
dained that alms should be bestowed upon
persons of every religion indiscriminately ;
and our doctors also allege, that if it were
not on account of the directions to Maaz, be-
fore quoted, they should deem the bestowing
of Zakat upon Zimmees to be legal.
Cases which do not constitute a payment of
Zahat.—If a person employ the Zakat upon
his property in the erection of a mosque, or
the burial of the dead, yet his Zakat is not
considered as being thereby discharged, be-
cause, in the payment of Zakat, it is estab-
lished as a principle that it shall be made
over to the person or persons entitled to it ;
and such delivery does not appear in this
case.
IF Zakat be employed in discharging the
debts of a defunct, this is not considered as a
payment of Zakat, because delivery docs not
appear in this instance.
Ira person employ the Zakat upon his pro-
perty in the purchase of a slave, for the pur-
pose of granting him his freedom, this is not
a discharge of Zakat. Imam Malik main-
tains that this art amounts to a due discharge
of Zakat ; because he alleges that the phrase
Feear-Rikdb, which occuis in the KORAN, ap-
plies to a slave thus bought and liberated ;
but our doctors argue that the emancipation
of a slave amounts simply to a dereliction of
property, and docs not in any respect bear
the construction of delivery or transfer of
possession.
Persons wh^ are not the proper objects of
its application. — IT is not lawful to bestow
any part of Zakat upon the rich, the Prophet
having Aeclaied that "alms are not lawful
to the wealthy." — Shafei extends the use of
Zakat to warriors, although they should be
rich; but the precept here quoted is in proof
against him.
IT is not lawful for an owner of property to
pay the Zakat upon it to his father, grand-
father, or great-grandfather ; nor to his
son, grandson, or great-grandson ; because
the use of property between him and those
persons is conjunct, —that is to say, each of
those relatives is entitled to the use of the
other's property ; and hence transfer of pro-
perty, in its full sense, does not exist in these
cases.
IT is not lawful for a proprietoi to pay the
Zakat upon his property to his wife, because
the use of property is common between the
husband and wife, according to general cus-
tom ; nor is it lawful for a .fvife to pay the
Zakat upon her property to her husband
(according to Haneefa), for the same reason.
The two disciples have said that it is lawful
to give Zakat to the husband, because the
BOOK I.— CHAP. VII.]
ZAKAT.
21
wife of Abd-'Oola-bin-Masood asked the
Prophet whether she should give Sadka to
her husband ? — to which he replied, — "You
have two duties, one, that of SADKA, the
other, that of RELATIONSHIP." — But to this
our doctors reply, from Haneefa, that by the
term Sadka, mentioned in this tradition,
is to be understood the Sadka Nifl, or volun-
tary alms.*
IT is not lawful for a proprietor to bestow
the Zakat of his property upon his own Mo-
katib, or Am Wai id, or Modabbir, because
in none of these cases is there a transfer of
property, since that which falls to a slave
becomes the property of his master ; — -and a
master has, in like manner, a superior right
in the property of his Mokatib, whence the I
master's transfer of property to him cannot
be established.
IT is not lawful for a proprietor to bestow
the Zakat of his property upon his slave,
whom he may have partially emancipated,
(according to Haneefa) because such a slave
is held by him to stand as a Mokatib; but the
two disciples maintain that the bestowiru? of
Zakat upon such a slave is legal, because j
they hold this slave to be a debtor to his j
master, t |
IT is not lawful to bestow Zakat upon the j
slave of a rich man, because, if it be made j
over to the slave, it becomes the property of
his master, and the master being rich, the
delivery of Zakat to him is illegal. And, in
like manner, it is illegal to bestow Zakat
upon the child of a rich person, being an in-
fant, since the child is supposed to be rich in
the property of the father ; contrary to the
case of the child of a rich person, being an
adult, who is poor, he not being accounted
rich in the property of his father, although
his subsistence be a debt upon his parents :
and also contrary to the case of the wife of a
rich person, because she, if she be poor, is
not accounted rich in the property pf the
husband, or in proportion to, or on account
of, the subsistence she enjoys from hifn.
IT is not lawful to bestow any part of
Zakat upon persons of the tribe of Hashim ;
the Prophet having said, "O, descendants of
Hashim ! of a truth GOD hath rendered un-
lawful to you the GHOOSALA [water dirted by
ablution of men, and also their CHIRK [fifth,]
and in lieu thereof he hath ordained to you
a fifth of the fifth of all plunder :" and by
the term Ghoosala is here to be understood
the Zakat upon property, which is not lawful
to Hashimees : contrary to Sadka Nil! : and
by the term Chirk is to be understood the
same. By the tribe of Hashim are here to
be understood the families of Alee, and
*In opposition to Zakat, which comes un-
der the description of Sadka Farz, or obliga-
tory alms ; and consequently what is quoted
above by the two disciples does not in any
respect apply to the present case.
fThat is for the remainder of his bondage.
Tor a full explanation of this, see Ittak.
Abbas, and Jafir, and Akleel, and Haris-
Ibnal-Mootlib ; all these deriving their de-
scent from Hashim the son of Minaf. But
by the same Hashim, in the words of the
Prophet before quoted, is to be particularly
understood Hashim the great-grandfather
of the Prophet, who also gives a name to a
tribe.*
Zakat is dischargd by the erroneous appli-
cation of it to an improper person.— If
a person were to bestow Zakat upon another,
erroneousuly supposing him to be a proper
object of its application, and should after-
wards discover him to be rich, or a Hashimee,
or an infidel, — or, if he should give Zakat to
a person in the dark, and afterwards discover
that person to be his father, or his son, — in
these cases Zakat is considered to be fully
discharged, and no longer to remain due. —
This is according to Haneefa and Moham-
med.— Aboo Yoo^af has said that, in the
cases here recited, Zakat is still held to re-
main due, because it was in the power of
that person to inquire into, and discover the
particulars concerning him upon whom he
bestowed Zakat previous to making it over
to him ; and such being the case, where he is
guilty of an evident neglect, his act is null,
and consequently the Zakat is still a debt
upon him ; the same as where there are seve-
ral vessels of water, some clean and others
unclean, — or several garments, some pure
and others defiled, -in which case, if a per-
son, after due deliberation, .select one of the
pots of water, and. pcj form his ablution with
it, or put on one of the garments, and say
his prayers, anjd he should afterwards appear
to have committed an error, a repetition of
the prayer or ablution is held to be incum-
bent upon him.- Haneefa and Mohammed
support their opinion, in this case, upon a
decision recorded of the Prophet in a similar
instance ; and they moreover argue, that a
knowledge of the situation and circum-
stances of men is only to be formed from con-
jecture and cannot be easily obtained to a
degree of decisive certainty, wherefore the
matter is to )>e taken according to the donor* s
conception of it ; the same as in a case of
prayer, where if a man, intending to turn
his face towards the Kaba, were to look in
another direction, and pray and his mistake
afterwards appear, a repetition of the prayer
is not incumbent upon him. It is recorded
as an opinion of iiantefa, that Zakat is to
be held discharged if thus bestowed by mis-
take, upon a rich person, but not if bestowed
upon a Hashimee, a parent, or a child ; but
the Zahir-Rau#yet accords with what was
before advanced. — What is here mentioned
proceeds upon a supposition that the Zakat
has been bestowed after due deliberation, in
consequence of the donor conceiving that
the receiver is» a pioper object of its applica-
•What follows of this passage relates
merely to the Arabian tribes, and is there-
fore quite useless.
ZAKAT.
[Vot. L
tion ; but he should not have deliberated,
or if, after deliberation, a doubt still remain,
the Zakat is not discharged, unless it after-
wards appear that the receiver was a proper
object of its application.
Unless that person be the slave or Makatib
of the donor.— Ir a person bestow Zakat
upon another, and afterwards discover that
this other is his own slave or Mokatib, this
is not held to be a discharge of his Zakat,
because, in this case, there is no transfer of
property (according to what has been already
remarked), and the discharge of Zakat rests
upon a complete transfer of it, as was for-
merly explained.
IT is not thought proper to bestow Zakat
upon a person possessed of a complete Nisab
in any property whatever, such an one being
considered as coming under the description
of Ghannee [rich], became this is the law
term for any one possessed of a Nisab ; but
the condition on which any person is
accounted a Ghannee is, that the Nisab
which constitutes his property be exclusive
of all demands or incumbrances (such as
debts, and so forth) ; and on this precise
quantity of absolute property no Zakat is
legally due from the proprietor, the increase
thereof (understood in the lapse of Hawlan-
Hawl) being a condition of the obligation to
Zakat.
Other persons upon whom Zakat may be
lawfully bestowed.— IT is lawful to bestow
Zakat upon a person possessed of less than a
Nisah, although he be sound in body and
capable of labour, because such an one
comes under the description of a Fakeer,
who is one of the specified objects of its
application, and also, because actual neces-
sity in the sit nation or circumstances of the
object is difficult to he ascertained, and
therefore the rule is restricted to that
description which affonls argument of such
necessity ; and a deficiency in worldly
property, to the amount of a Nisab, affords
such argument of necessity with respect to
the proprietor.
IF a person were to bestow to. the amount
of two hundred Dirms, or upwards of the
Zakat of his property, upon one individual,
such a procedure is abominable, but yet is
legal— Ziffer has said that this is illegal;
because in the act of bestowing that quantity
of Zakat, the person who receives it becomes
a Ghannee,* which would induce the idea
of Zakat being bestowed upon a Ghanee ;
but to this our doctors reply, that the
opulence of the person in question is an
effect of the gift of Zakat to feim, and there-
fore he does not come within the description
of a Ghannee until after it has been bestowed,
yeti where discharge of Zakat tends to
bring' any one within the description of
Ghannee, it is abominable, the same as
prayer when performed^near any filth.
"Laterally, a rich person, in opposition to
<Fakeer, a poor person.
ABOO HANEEFA has said, "I regard it as
most laudable to bestow upon a FAKEER,
ZAKAT to such an amount as may preclude
him from the necessity of begging for that
day."
Zakat of one city not transferable to
another except in certain case: — THE trans-
fer of Zakat from one city to another is
abominable, it being rather indispensable
that the Zakat of every city be bestowed
upon the claimants of that city ; and also,
because in this a regard is had to the rights
or Jowar [neighbourhood] : — and hence, it
is abominable in men to transfer the Zakat
; upon their property from their own city to
i another, except either for the use of their
I relations, or for the purpose of assisting those
! who may be in greater necessity than the
j inhabitants of their own city ; because in the
| one case exists the peculiar duty of con-
| sanguinity, and in the other the application of
i relief where it is most required. — But
j although the transfer of Zakat from one
city to another, excepting for the purposes
here mentioned, be accounted abominable,
yet it amounts to a valid discharge of Zakat
because the term Fakeer, mentioned in the
sacred writings as one of the proper objects
of the application of Zakat, is not local but
general .
CHAPTER VIII.
OF SADKA-FITTIR
Definition of the term. — BY Sadka-fittir is
understood the alms bestowed upon the poor
on the Yd-al Fittir, or festival of breaking
Lent.
Obligation of Sadka-fittir,— Sadka-fittir
is incumbent upon all free Mussulmans
possessed 6f property to the amount of a
NisaT) clear of incumbrance. The obligation
to Sadka-fittir is founded on a precept of the
Prophet, who, in a discourse upon the
festival of breaking Lent, said, "Let every
person, whether INFANT or ADULT bestow
[upon the poor] half a SAA of wheat, or
one SAA of millet or of barley," This
saying is recorded by Salba-Adwee, but
being of the class of Hidees Ahad,* it
establishes only a moral but not a religious
obligation.
Condi tionsof the obligation. — FREEDOM is
made a condition, in order that the assign-
ment [of the Saduka] mav be complete : and
Islam, or profession of the faith, is also
made a condition, in order that this dona-
tion may bear the construction of an obligation
and act of piety, of which infidels are held
incapable : and the possession of a Nisab is
*The singular traditions :—- that is, those
which are not included among the approved
traditions, and therefore are not supposed to
be possessed of the same authority.
BOOK I.-CHAP. VIII.]
ZAKAT.
23
also made a condition, the Prophet having
declared "Aims are not expected to be
bestowed but from the ability of the RICH."
Shafei has said that the Sadka-fittir is
incumbent upon every person who possesses
property to the amount or value of one
day's subsistence for himself and family ;
but the above precept of the Prophet is in
proof against him. — It is to be observed that
wealth is determined at the rate of a Nisab,
because that is the standard by which the
law measures it ; but this, with the reserve
of its being exclusive of all incumbrances,
as whatever may be so occupied is accounted
non-existent ; but increase in it is not a
condition. — There are three things connected
with the possession of a Nisab, such as here
described ; FIRST, prohibition against the
acceptance of alms ; SECONDLY, obligation
to perform sacrifice ; and THIRDLY, obliga-
tion to bestow Sadka-fittir.
Persons upon whom, or in whose behalf, it
is incumbent. — THE Sadka-fittir is incum-
bent upon every individual respectively. F.bn
Amir having recorded that the Prophet has
constituted Sadka-fittir an absolute injunc-
tion [Farz] upon all mankind and both
sexes, indiscriminately.
IT is incumbent upon a man to discharge
the Sadka-fittir in behalf of his children,
being infants, because he is their guardian,
and their proivision is a Tdebt upon him ;
wherefore the accomplishment of their duties
of Sadka must also rest upon him, this being
considered as a part of their provision. And,
in the same manner, a man must discharge
the Sadka-fittir in behalf of his male and
female slaves, he being their guardian, and
their subsistence depending upon him. What
is here advanced proceeds entirely upon a
supposition that the slaves are not held by
the proprietor merely in the way of traffick ;
and also that his children are not possessed
of any independent property ; for, if the
children be possessed of propertj', theii Sad-
ka-fittir is to be discharged out of that, ac-
cording to the two Sheicks. MohaYnmed
contradicts their opinion in this instance.
The argument of the two Sheicks is that
the lawgiver has considered Sadka-fittir the
same as Nifka,* and therefore it is to be
held as such.
Persons upon whom, orinwhosebehalf.it
is not incumbent. — THE Sadka-fittir is not
incumbent upon a man in behalf of his wife
because his power of guardianship and pro-
vision, with respect to her, is incomplete,
since a husband is not guardian over his wife
any farther than respects the rights of mar-
riage, nor does the provision for her rest
upon him any further than with respect to
food, clothing, and lodging, which are termed
Rawatib [necessaries], any thing beyond
which he is not accountable for. — And, in
the same manner, it is not incumbent upon
*The subsistence due to a wife, parent,
child, and other relations.
a man to disburse the Sadka-fittir for his
children, being adults, although these form
a part of hi* family, because he is not in-
vested with any authority of guardianship
over them. — But yet if a man was to dis-
burse the Sadka-fittir on behalf of his wife,
or adult children, without their desire, it is
lawful, on a principle of benevolence, their
consent being by custom understood.
IT is not incumbent upon men to pay the
Sadka-fittir for their Mokatibs • neither is it
incumbent on a Mokatib to pay it on his own
account, such an one coming under the de-
scription of a Fakeer.
Exception. — IT is incumbent on men to
pay Sadka-fittir on behalf of their Modabbirs
and Am-Walids, as being invested with
complete authority over them.
Not incumbent on behalf of slaves kept as
articles o/ traffic. — IT is not incumbent
upon men to pay Sadka-fittir on behalf of
their male and female slaves designed for
sale as merchandise. Shafei alleges that the
Sadka-fittir is obligatory upon such slaves,
and that the proprietor is to pay it for
them ; and that the Zakat upon them is due
from the proprietor. In short, Shafei holds
that Sadka-fittir is due from the slave, and
Zakat from their proprietor, on two distinct
and separate accounts ; and consequently,
that this does not induce the idea of a repe-
tition of Sadka upon one and the same pro-
perty ; but with our doctors the obligation
to Sudka-fittcr, on behalf of slaves, is held
to rest upon their owner, the same as Zakat ;
and consequently, if the payment of the
former were incumbent, it would admit the
idea of two Sa^jkas upon one property within
the year, which is illegal.
Nor on behalf of a partnership slave. —
No Sadka-fittir is incumbent upon any of
the proprietors on account of a partnership
slave, because none of them, individually, is
invested with complete authority over him,
nor obliged to furnish his entire provision.
And, in the same manner, no Sadka-fitter is
incumbent upon any of the proprietors, on
account of two or more partnership slaves,
according to Haneefa. — The two disciples
have said that, in this case, Sadka-fittir is
incumbent upon the proprietor ; but in such
a degree only, with respect to their shares,
as may amount to a complete slave or slaves,
and not to any fractional part or portion of
them : for instance, if there were five slaves
held in partnership by two men, each part-
ner would have to pay Sadka-fittir for two
slaves, and not for two and a half. — Some,
however, have said that the "two disciples
agree with Hanfcefa in their doctrine upon
this point, because the share of each partner,
individually, cannot be collected into any
particular slave or slaves, until a partition
take place of the partnership stock, and con-
sequently none of them appertains to either
partner in particular.
Incumbent on behalf of ivfidtl slavis.—-
IT is incumbent upon Mussulmans to pay the
Sadka-fittir for their infidel slaves, on the
24
ZAKAT.
[VOL. I.
authority of the tradition of Salba-Adwee,
already quoted, because there the term slaves
is used generally, and is not restrictively
applied to Mussulman slaves : more over in
the traditions of Abbas, it appears that the
Prophet said "Render SADKA-FITTIR on be-
half of every freeman, and also of every
slave, be that slave a CHRISTIAN, a JEW,
or a PAGAN :" and further, it is incum-
bent, because the occasion of the obligation
is here established, and the proprietor [of
the slave] is capable of taking upon him the
responsibility for such obligations. Shafei
maintains that, in this instance, no SacJka-
fittir is due, because the obligation to Sadka-
fittir rests upon a slave himself, and not
upon his owner ; and the former (in the case
here supposed) is incapable of such obliga-
tion, as being an infidel.
But not on behalf of a slave the property
of an infidel. — IF the slave be a Mussulman,
and his master an infidel, in this case no
Sadka-fittir whatever is due for such slave,
according to all the doctors ; according to
our doctors, evidently, because they hold the
obligation of Sadka-fittir, with respect to
the slave, to rest upon the master, and here
the master is an infidel ; and, according to
Shafei, because he holds the obligation to
rest upon the slave himself, to be discharged
by his master ; and the master, in the pre-
sent case, is incapable of discharging it, as
being an infidel.
Case of a slave told with a reserve of op-
tion . — JF a slave be sold with a reserve of
option to one of the parties, the seller or the
purchaser, determinable on the ensuing fes-
tival of Fittir, in this case t^e Sadka fittir,
on behalf of that slave, is incumbent upon
the party to whom he may ultimately belong.
— Ziffer alleges that the discharge of the
Sadka-fittir rests with the party in whose
behalf reserve of option was made a con-
dition, because the authority over that slave
is in fact vested in him. Shafei maintains i
that it rests with him who has possession in j
the interim, whom he holds to be the pur- j
chaser, on this ground, that the furnishing |
Sadka-fittir is one of the rules of possession*, j
the same as furnishing subsistence. — Our i
doctors argue that the possession of the j
slave in the present case, is a matter which '
remains in suspense, since, if he to whom i
the option was reserved choose to dissolve the I
sale, the propertv in the slave reverts to the ,
seller ; but, on the other hand, if he confirm
the sale and render it valid, the slave be-
comes the property of the purchaser from
the period of the original engagement ; and
the possession thus remaining in suspense,
that which depends upon such possession
must remain suspended also : contrary to the
case of Nifka, which is requisite from day
to day, to supply the wants of nature, and
is consequently incapable of such suspen-
$ion. And if this slav£ be an article of
traffick, ,*he same difference of opinion holds
with respect to the Zakat upon him.
Section. — Of tht measure of Sadka- fittir
and of the Time of its Obligation and its
Discharge.
Proportion of Sudka- fittir and the articles
in which it may be discharged — THE measure
of Sadka-fittir in wheat, or flour or bran,
or in dried fruits, is an half Saa ; and in
dates or barley it is one Saa. The two dis-
ciples say that dried fruits are the same as
barley in this respect ; and there is also one
tradition of the opinion of Haneefa to the
same effect. — The former is the doctrine re-
corded in the Jama Sagheer. Shafei says
that the measure of a Sadka-fittir, in all the
articles here specified, is one Sea ; because
Aboo Seyid Kadooree remarks that this was
the customary Sadka-fittir in all articles in
the time of the Prophet. — Our doctors sup-
port what was before advanced on the
authority of the tradition of Salba Adwee,
already repeatedly quoted ; and the doctrine
of the whole of the companions (such as the
Kholfa Rashidine* and others), is consonant
to that of pur doctors : the tradition, also,
of Aboo Seyid, cited by Shafei, implies no
more than that, in the time of the Prophet,
people were accustomed in giving something
over what was obligatory. — The two disciples
allege (in support of their opinion, that
dried fruits are the same as barley) that
Khurma [dried dates] is one species of dried
fruits ; and they being considered the same
as barley, it follows that all dried fruits, as
being of one general description, should be
subject to the same rule. The argument of
Haneefa is, that dried fruits and barley are
of a corresponding nature, because as the
poor eat the flour of wheat with its bran, so
do they dried fruit with its core or stone :
contrary to dates, which are the same as
barley, in as much as the stones of the one
and the bran of the other are thrown away.
— Barley-meal is the same as barley ; but it
is best that, in discharging the Sadka-fittir
in th<i , flour or bran of either barley or wheat,
attention J:>e paid to the value ; that is to say
if, for* instance, the value of half a Sia of
flour be equal to that of the same quantity
of wheat, it will suffice to give half a Saa of
flour, but otherwise not ; and the same with
respect to barley -meal. — This is not noticed
in the Jama Sagheer, because the value of
meal or flour does not commonly fall short
of that of the grain, but rather generally
exceeds it.
IN discharging the Sadka-fittir with bread
regard is to be had to the value only ; this is
approved doctrine.
The half Saa now mentioned is to be ascer-
tained by weight, according to Haneefa ;
but the two disciples hold that it is to be
ascertained by measure.
In discharging the Sadka-fittir, flour is
preferable to wheat, and money is preferable
to flour according to what is recorded from
Aboo Yousaf ; because m^ney satisfies the
"The immediate successors of theProphet.
BOOK II.— CHAP. 1.]
MARRIAGE.
25
wants most amply, and flour most readily :
contrary to wheat, which, after it is be-
stowed, requires to be made flour before it is
fit for use. — It is recorded, as an opinion of
Aboo Bikr Ayamush, that wheat is prefer-
able either to flour or money, because this is
universally admitted to be a proper article
in which to discharge the Sadka fittir,
whereas concerning money and flour there
are various opinions.
THE Saa, according to Aboo Haneefa and
Mohammed, consists of eight Ratls* of the
Ratls of Irak. — Aboo Yoosaf has said that it
is only five Ratls and one third ; and this
is a'so the doctrine of vShafei : the Prophet
having said "Our SAA is smaller than that
of others." — The arguementof the Tirrafmet,
in this case, is. that it is recorded by the
Prophet, that he performed the Woozo by
the Mid (which is two Ratls), and the Ghosl
by the Saa (which is eight Raits) ; and the
Saa of Omar was the same : moreover, this
Saa is small compared with that of Hashi-
mee, which was the Saa in common use,
wherefore it is lawful to regard that men-
tioned in the tradition above quoted as the
standard in Sadka- tittir.
Time of the commencement of the obliga-
tion. THE obligation to the performance of
the Sadka fittir commences with the dawn of
the morntng of the festival of Fittir ; that
is to say, the arr.val of that specified period
is a condition of its obligation. Shafei
alleges that the obligation commences with
the sunset of the last day of Ramzan :— and
the result of this difference of opinion is,
that if (for instance) an infidel were to be
converted, and to become a Mussulman,— -or,
if a child were to be born,— on the eve of the
festival of Fittir, theSadka- fittir would b-due
on account of the convert of the child, accord-
ingtoiourdoctors; but, according to Shafei, it
would not be due : and, on the other hand,
if a man's child, or male or f«male slave,
were to die on the last night of Raihzan
Sadka- fittir is incumbent upon him or/ their
account, according to Shafei ; but it would
not be so, according to our doctors —The
argument of Shafei, in this case, is that the
Sadka-fittir is essentially connected with,
and bears relation to Fittir [the act of break-
ing of fast], as the connection of the terms
evinces ; and the sunset of the last day of
Ramzan is the time of Fittir, because the
fast may be then broken. —To this our
doctors, reply, by admitting that the Sadka-
httir is certainly connected with the act of
fittir, but the Fittir has reference to the
day, and not to the night, whence it is that
this period is expressed by the words Yawm-
al-fittir [day of breaking fast], and not by
the words Lail-al.fittir [night of breaking
fast] ; and hence it follows that the obliga-
tion to the performance of Sadka- ffttir if
connected with the morning of the festival
of Fittir, and not with the eve thereof.
IT is most laudable that men discharge their
Sadka-fittir on the day of the festival of
Fittir, before they proceed to the mosque to
perform the prayers of that festival, because
the Prophet did thus; and also, because the
precept regarding Sadka- fittir was issued
with a view that this donation might relieve
the wants of the poor, and thereby enable
them to enjoy the festival, and to unite in
the duties of it with a cheerful mind ; and
the design is best answered by the donation
being made before prayer.
IF tha Sadka-fittir be discharged previous
to the day of the festival of Fittir, it is
lawful ; because the discharge of an obliga-
tion, at any time after the establishment of
the cause of the obligation, is legal, in the
same manner as that of Zakat previous to
the lapse of Hawlan-Hawl,
IF a person were not to discharge the
Sadka-fittir withip the day of the festival
of Fittir, yet the obligation still continues,
and it is proper that it be made good after-
wards, because the obligation of it is imposed
with a view to the relief of the poor, which
object still remains; contrary to sacrifice,
the obligation to which, if it be neglected on
the Yawm-al Nihr [the day of sacrifice, beim*
the tenth of the month Zce-al Hidjce], drops
altogether ; — this being merely an act of
piety, in which the wants or rights of others
are no way concerned.
•A Ratl is abouf fourteen ounces.
tLiterally, the two extremes, as bein« the
oldest and youngest of the three orthodox
doctors ; namely, Hanneefa and Mohammed
BOOK II.
OF NIKKAH, OR MARRIAGE.
Definition of the term. — NIKKAH, in its
primitive sense, m?ans carnal conjunction.
Some have said that it signifies conjunction
generally. In the language of the law it
implies a particular contract used for the
purpose rf legalizing generation.
Chap. I. — Introductory.
Chap. II . — Of Guardianship and Equa-
lity.
Chap, III.— Of the Mihr. or Dower.
Chap IV.— Of the Marriage of Slaves
Chap. V.— Of the Marriage cf Infidels.
Chap. VI.— Of Kissm, or Partition.
CHAPTER I.
Forms under which marriage may be con-
tracted.— MARRIARE is contracted, — that is
to say, is effected and legally confirmed, — by
means of declaration and consent, both ex»
pressed in the preterite, because although the
use of preterite be to relate that which is
past, yet it has been adopted, in the kyv, in
a creative sense, to answer the necessity of
26
MARRIAGE.
VOL. l.
the case.*— Decoration, in the law, signifies
the speeeh which first proceeds from one of
two contracting parties, and consent the
gpeech which proceeds from the cither in re-
ply to the declaration.
MARRIAGE may also be contracted by the
parties expressing themselves, one in the
imperative, and the other in the preterite ;
as if a man were to say to another "Contract
your daughter in marriage to me,"— and he
were to reply. "I have contracted1' [my
daughter to you] — because his words "Con-
tract your daughter to me" are expressive
of a commission of agency, empowering to
contract in marriage ; and one person may
be authorized to act on both sides in mar-
riage (as shall be hereafter explained) ; where-
fore the reply of the father, "I have con-
tracted," stands in the place both of de-
claration and consent, — as if he had said "I
have contracted, and I have consented "
MARRIAGE may also be contracted by the
use ofthe wordNfKKAH, or marriage,-— as if
a woman were to say to a man "I have mar-
ried myself to you for such a sum of money ,"f
and the man were to reply "I have con-
sented :" and, in like manner, by the word
Tazweej, or contracting in marriage as if a
woman were to say to a man "I have con-
tracted myself in marriage unto you," and
so forth :— and so also, by the word Hibba,
or gift, t as if she were to sav "I have be-
stowed myself upon you :" and likewise, by
the word Tamleek, or consignment, — as if
she were to say "I have consigned myself
over to you :" and so also, by the word
Sadka, or alms-gift, as if she were to say "I
have given myself as an aim*, unto you." —
Shafei is of opinion that marriage cannot be
contracted except by the words Nikkah and
Tazweej, because the term Tamleek (for in-
stance) does not bear the construction of ma-
trimony either in a literal or metaphorical
sense ;— evidently not in a literal sense, this
term never being used to express marriage ;
nor in a metaphorical sense, because a me-
taphor is to be understood in a particular
sense only from the propriety of its applica-
tion, which is not the case here, the terms
Nikkah or Tazweej implying conjunction !
(as was before observed), and between the
possessor and the possession no conjunction
whatever exists The argument of our doc-
tors, in this case, is that consignment ope-
rates as the principle of a right to a carnal
conjunction in the subject of it, in virtue
of a right in the person (as in the case of
female slaves) ; and the right to carnal con-
junction is also established 4 by matrimony ;
wherefore, as marriage and consignment thus
*Because the present and future being
expressed, ici the Arabic language, under
one from, a contract expressed in the present
fyould be equivocal.
•f Meaning her dower.
J This, and the two following terms, are
such'asara used where the woman does not
itimihtc any dower. '
appear to be both principles operating to the
same end, the latter may be metaphorically
taken for the former.
MARRiAGKmay be contracted by the use of
the term Beeya, or sale ; as if a woman were
to say to a man "I have sold myself into
your hands/' and this is approved, because
sale operates as the principle of a right in
the person; and a right in the parson is the
principle of a right to carnal conjunction,
whence the proprety of the metaphorical ap-
plication of sale to metrimony.
ACCORDING to the Rawayet-Saheeh , mar-
riage cannot be contracted by the use of the
term Ijara, or hire — (as if a woman were to
say "I have hired myself to you for so
much ;") — nor by Ibahit, or permission ;
nor by Ihlah, or rendering lawful ; nor by
Areet or loan ; none of these operating as
the principle of a right to a carnal conjunc-
tion— Neither can marriage be contracted by
the use of the term Waseeyatc or bequest ;
because bequest does not convey any right
of possession until after the testator's death :
— and as a contract of marriage in express
terms, referring the execution of it to a period
subsequent to the decease of either of the par-
ties would be null, so also, in the present
case, a fortiori.
Must be contracted in the presence of
witnesses* — MARRIAGE, where both the par-
ties are Mussulmans, cannot be contracted
but in the presence of two male witnesses,
or of one man and two women, who are sane,
adult, and Mussulmans, whether they be of
established integrity of character or other-
wise, or may ever have suffered punishment
as slanderers — The compiler of this work ob-
serves that evidence is an essential condition
of marriage, the Prophet having declared
"no marriage is good without evidence;"
and this precept is a proof against Malik,
who maintains that in marriage notoriety
only is a condition, and not positive evidence.
(Qualification of a witness' — IT is necessary
that «the witnesses be free, the evidence of
slaves being in no case valid, because such
are not competent to act in any respect
sui juris ; and it is also requisite that they
be of sound mind and mature age, because
minors or idiots are in capable of acting for
themselves ; and it is likewise necessary
that they be Mussuluman* ; the evidence of
infidels not being legal with respect to Mus-
sulmans.
Persons may witness a marriage, whote
testimony would not be received in other
cases. — THE sex of the witnesses is not an
essential condition of their competency, in-
so much that marriage may be lawfully con-
tracted in the presence of one man and two
women : — neither is the integrity of the wit-
nesses an essential condition, insomuch that
(according to our doctors) a marriage is valid
if contracted in the presence of tuo Fasiks
or unjust persons.* — Shfifei maintains that
*The word Fasik which throughout this
work is used in contradistinction to Adil, has
BOOK II.— CHAP. I.]
MARRIAGE
the integrity of the witnesses is an essential
condition, because evidence is entitled to re-
verence and respect, the Prophet having said
"pay reverence to witnesses ;" and Fasiks
are not proper objects of such reverence, but
rather the reverse. — To this our doctors re-
ply that Fasiks are competent to act for them-
selves, and of course competency in evidence
must also appertain to them, since they are
not incapaitated from acting with respect
to others ; a Fasik, moreover, is capable of
holding the office of a Sultan or an Imam,
whence it follows that he is also capable of
becoming a Kazee, or a witness. — A person
who has suffered punishment for slander, as
being still possessed of general competency,
is also capable of bearing witness, so far as
merely respects declaration and consent in
matrimony, but no farther, there being a
positive prohibition to the reception of such
a person's evidence, which, however, admits
of exception in the present case, like that of
blind persons, or of the children of the parties,
whose evidence, although not admissible in
any other case, is yet allowed in marriage.
Infidels may witness the marriage of an
infidel woman — IF a Mussulman marry a
female infidel subject in the presence of two
male infidel subjects it is lawful, according to
Aboo Yobsaf and Hineefa. Mohammad and
Ziffer maintain that it is not lawful because
their testimony, with respect to declaration
and consent in marriage, amounts to evidence
and the evidence of infidels regarding Mus-
sulmans is illegal ; whence it is the same in
fact as if they had not heard the declaration
and consent of the parties. The argument
of the two elders, in reply to this objection,
is, that evidence is required in matrimony,
not with any view to the ascertainment of a
point of property (such as dower), but
merely in order to establish the husband's
right of cohabitation, which is*in thi« case
the object. *
The negotiator o/ the contract may also, in
certain cases, be a witness to it. — IF a man
desire another to contract his daughter
(being an infant) in marriage to a third
person, and the other should accordingly
contract his daughter, upon the spot, to the
third person, in the presence of the person
so desiring, and the act be witnessed by only
one person besides these two, the marriage is
lawful ; because, in this case, the father, as
being upon the spot, is considered as the
actual contractor of the marriage [on behalf
of his daughter] ; wherefore the second
person stands merely as the negotiator of the
contract, and of course, not appearing as a
party in it, is a competent witness with the
therefore been rendered, in the translation,
unjust, which is indeed the most common
acceptation of the v*>rld ; it must, however,
be understood to relate to a person who neg-
lects decorum in his behaviour and dress, and
such other inferior points, rather than to one
who is actually known to be dishonest.
other. But, if the father of tht infant afore-
said should go away, and be not actually
prejcnt at the execution of the contract, the
marriage would be null ; because the father,
as not being present, cannot be considered
as the contractor, that appellation properly
applying to the other — who appears to act*
in his absence, aa his matrimonial agent
on his daughter's behalf ; consequently here
would be only one competent witness present,
and one evidence is not sufficient ; whence
the manage would be illegal." — And the rule
is the same where a father matches his
daughter (being an adult), at her desire, in
the presence of one other witness ; that is to
say, if the daughter be herself present at
the execution of the contract it is legal,
otherwise not.
Section — Of th* prohibited degrees ; that
is to say, of Woman whom it is lawful to
marry, and of those with whom Marriage
is unlawful.
It is unlawful to marry a mother, or a
grandmother. — A MAN may not marry his
; mother, nor his paternal or maternal grand-
j mother ; because the word of GOD in the
KORAN says, "YouR AMS (that is, your
mothers) AND YOUR DAUGHTERS ARE FOR-
BIDDEN TO YOU ;" and the primitive sense
of the term AM [mother] being origin or
root, the grandmothers are comprehended in
this prohibition. The illegality of such a
connexion is, moreover, supported upon the
I united opinion of all our doctors.
I A daughtereor a grand-daughter. — A MAN
may not marry his daughter, on the autho-
rity of the text above quoted, nor his grand-
daughter, nor any of his direct desendants.
A sister, a niece, or an aunt.— ;N EITHER
may a man marry his sister, nor his sister's
daughter, nor his brother's daughter, nor
his paternal aunt, nor his maternal aunt ;
the prohibition of such in marriage being
included in the text already quoted.
ALL the degrees of aunts are also included
in this prohibition ; to wit, maternal and
paternal aunts, as well as the aunts of the
father, and the aunts of the mother, both
paternal and maternal: — so also the daugh-
ters of all the brothers ; that is to say, of
the fu'l brother, and of the paternal* brother
and of the maternal brother ; and, in like
manner, the daughters of all sisters, to wit,
of the full sisters, and of the paternal sisters,
and of the maternal sisters ; because the terms
Amma, Khala, Okh, and Okht, which occur
in the passage <ff the KORAN already cited,
apply to all those degrees of kinded.
Or a mother-in-law — IT is not lawful for
a man to marry his wife's mother, whether,
he may have consummated his marriage
with her daughter or not, the Almighty
* By the terms maternal or rJaternal
applied to brothers and sisters, is to be
understood half-brothers or half-sisters* by
the father's or mother's side.
28
MARRIAGE.
[VOL. I
having prohibited such a connexion in gene-
ral terms, without any regard to that cir-
cumstance.
Or * ttep-daughter.— NEITHER is it lawful
for a man to marry the daughter of his wife;
but this only, provided he have already
consummated his marriage with the latter,
because the sacred text restricts the illegality
of this union to that circumstance, where-
fore marriage with the daughter of the wife
is illegal, where carnal connexion has taken
place with the .latter, whether the daughter
be an inmate of the husband's Hsram, or
not. It is here to be observed, that the text
in the sacred writings which says "YouR
WOMEN WHO RESIDE IK YOUR Harams,
BEING THE DAUGHTERS OF YOUR WIVES
WITH WHOM YOU HAVE HELD COHABI- •
TATION, ARE UNLAWFUL TO YOU," has j
merely reference to custom, and does not |
imply that the residence of the daughter I
in tht man's Haram along with her mother |
is unlawful ; for it is usual, when a man
marries a woman who has /i daughter by a
former husband, that the latter accompanies
her mother to his house, and is thence con-
sidered as one of his Haram.*
Or a step-mother, or step-grand mother. —
IT is unlawful for a man to marry the wife
of his father, or of his grandfather, God
having so commanded, saying "MARRY NOT
THE WIVES OF YOUR PROGENITORS."
Or o daughter-in-law, or grand- daughter-
in-law. — NEITNER is it lawful for a man to
marry the wife of his son. or of his grandson,
the Almighty having said ''WED NOT THE
WIVES OF YOUR SONS, OR YOUR^DAUGHTERS
WHO PROCEED FROM YOUR LOIN&:"
Or a nurse or a fatter- sitter, — IT is not
lawful for a man to marry his foster-mother,
or his foster-sister, the Almighty having
commanded, saying "MARRY NOT YOUR |
MOTHERS WHO HAVE SUCKLED YOU, OR
YOUR SISTERS BY FOSTERAGE j" and the
Prophet has also declared, "Every thing is
prohibited by reason of fosterage which is so
by reason of kindred."
Or two sisters — IT is not lawful to marry
and cohabit with two women being sisters,
neither is it lawful for a man to cohabit with
two sisters in virtue of a right of possession
[as being his slaves], because the Almighty
hai declared that such cohabitation with
sisters i§ unlawful.
Case of two listers.— IF a man marry the
sister of his female slave with whom he has
not cohabited, such marriage is approved,
the contract being, in this case, entered into
by parties competent in every4respect.— And
this marriage being legal and valid, the man
must not afterwards hold any carnal con-
nexion with his female slave, even though
he should never consummate his marriage
carnally with her sister, because a wtfe
c"*This observation is 'introduced merely
with a vfew to* explain an ambiguity in the
text referred to,
stands in law, ts Fcemina Fututa :~~
neither should the husband indulge in the
connubial enjoyment with this wife until he
shall previously have rendered her sister [the
slave] unlawful to him, and relinquished his
right of cohabitation with her, by some
means or other, such as emancipating her,
or marrying her to another man, in order to
avoid the construction of cohabitation with
sisters ; but having so done, he may after-
wards cohabit with his wife ; because the
no breach of the law would ensue, since a
female slave is not held in the law, merely
as such, to be a Foemina Fututa.
Another case o/ two sisters — IF a man
should happen to marry two sisters by two
contracts,* and it be not known with respect
to which marriage first took place, a sepa-
ration from both the sisters must ensue ;
because it is evident that his marriage with
one of the two is illegal, but it it impossi-
ble to ascertain with which, by reason of
ignorance of priority ; nor is it conceivable
that a judgment should be pronounced lega-
lizing the marriage of either, unspecified,
since the marriage of both remaining un-
ascertained, a rule to make the same valid
would be illegal as not leading to any good
or advantage ; for the adv ntage proposed
in matrimony is procreation, which is unat-
tainable without carnol connexion of the
parties ; and this connexion with a woman
unspecified is inadmissible: moreover, allow-
ing the marriage to be valid, it would be
injurious to both, as laying them under the
matrimonial reitraints without the advan-
tage of the connubial enjoyment, which
neither could legally possess ; for all which
reasons their separation is indispensable.
And in this case each sister is entitled to
receive an half dower, because, if either
could have been proved to be first married,
she would have had a claim to her full dower,
but ttye priofity of marriage of either remain-
ing unascertained, the dower is thus divided
betweeft them.— Some have said that this is
only where each of the sisters respectively
maintains the priority of her marriage with-
out either being able to adduce any proofs ;
but that where they both declare their
ignorance of such priority, nothing what-
ever is to be paid to either. ULtil such time
as both agree to receive an half dower,
as above, because that is due to them in
virtue of a priority unascertained, where-
fore it is necessary either that each should
respectively maintain her priority, or that
both should agree, as above, before any
decree for payment of an half dower to each
should be passed. — But if each sister main-
tain her priority, and both produce equal
"This doubtless supposes a case where a
man is contracted in marriage through the
agency of others empowered by him for thtt
purpose (as shall be shoffn in an ensuing
chapter), and who may engage in the contract
without his immediate knowledge *
BOOK IF.— CHAP. I.]
MARRIAGE
29
evidence in support of it, an half dower is
the right of each, according to all the doctors.
A man may not marry an aunt and niece.
— It is unlawful for a man to marry two
women, of whom one is the aunt or niece
of the other, the Prophet having declared a
precept, as recorded in the Zahir-Rawayet,
to this effect.
Or two women i elated within the prohibited
degiees. — IT is not lawful for a man to marry
two women within such degree of affinity as
would render a marriage between them
illegal, if one of them ware a man, — and
for the same reason, because this would
occasion a confusion of kindred.
A man may marry a woman and her step-
daughter.— But a man may marry two
women;, one of them being a widow; and
the other the daughter of that widow's
former husband by another wife, because
here exists no affinity, either by blood or
fosterage. — Ziffer objects to this, and main-
tains that the marriage would be illegal;
because, if the daughter were supposed a
man, a marriage between her and the widow
would be illegal, and these two consequently
stand in the same predicament, with respect
to each other, as those in the preceding case.
— To this our doctors reply that the illegality
there stated is supposed to exsist only in cases
where this supposition, if applied to either
of the women, would render their marriage
illegal; but that does not hold in the per-
sent instance, for if the widow were sup-
posed to be a man, she could lawfully marry
the daughter. — And it is moreover related,
in the Nakl Saheeh, that Abdoola the son of
Jafir married a wife and a daughter of Alee.
Cases which induce illeglity. — IF a man
commit whoredom* with a woman, her
mother and daughter are prohibited to him.
— Shafei maintains that they are not prohi-
bited; because whoredom does> not induce
Hoormat-Mooshahirat, or prohibition, from
affinity, as this law of prohibition is,ja pecu-
liar distinction bestowed upon the servants
of GOD through the divine favour, and
whoredom being a crime, cannot potsibly
induce that which is a favour of GOD. — To
this our doctors reply, that the carnal act
operates as a principle or cause of a mutual
participation of blood between the parties
concerned in it, in vitrue of the child which
is, or may be, the fruit thereof, that par-
taking of the father and the mother respec-
tively, in toto, for it is usually said "This
child is the offspring of such a man and of
such a woman;" and this participation
being thus established between the child
and each of the parents respectively, it is
virtually so between the parents themselves,
because although a portion of the child be a
part of the mother, yet it is attributed, in
toto, to the father, whence a part of the
mother is attribuied to him ; and vice versa;
and a mutual participation of blood being
thus established between the man and the
woman, it follows that the mother or th«
danghter of the latter stands as the actual
mother or daughter of the man, because the
former would be the grandmother of the child
produced by such act of whoredom; she it
therefore the root of the root of such off-
s -ring, and the offpring is the branch of a
branch from her ; and it is inconceivable that
the child should be a branch of a branch
from her, unless the fornicator were con-
sidered as a branch from her, and the grand-
mother the root of the fprni cator : and the
same reasoning applies with respect to the
daughter.
IF a woman touch a man in lust [i.e. manu
penem fricans, stuprum excitat], the mother
and daughter of that woman are thereby
prohibited to him. — Shafei says that they are
not prohibited. And the same difference of
opinion obtains in cases where a man touches
a woman in lust; or sees the pudendum of a
woman ; or where a woman sees the yard of
a man in lust': in all which instances our
doctors hold that the mother or daughter of
such woman are rendered unlawful to the
man ; but Shafei maintains a contrary senti-
ment, arguing that sec ing or touching do not
amount to the absolute act, insomuch that
the usual ceremonies required by the law after
the carnal act* are not here necessary. — To
this our doctors reply, that such acts as
those, being a cause of copulation, stand as
that constructively. — It is to be observed,
that by touching in lust, with respect to a
man, is meant producting a priapism with
the hand, ov increasing the turgidity of the
virile member, by the same means ahere
the priapism already exists. — This is an ap-
proved definition of that phrase, as to the
term lust, with respect to young men in full
vigour and equal to the performance of
coition ; but with respect to old men, and
Inneens (or persons naturally impotent), the
exciting of lust amounts only to causing the
heart to boat more quickly than usual; ot
| increasing that palpitation where it already
exists. — By the exciting of lust in women or
eunuchs is understood simply causing a
desire of coition, or increasing that desire
where it already exists. — These definitions
are recited at large in the Fatavee Alum-
gueeree. By seeing ihe pudendum of a
woman is understood; seejng the entrance
of the vagina, which is not supposed prac-
ticable unless she be in a reclining posture.
IF a man indulge in lewdness with a
woman until^he produce an emission, some
have said thai this occasions Hoormat-Moo-
sahirat, or prohibition from affinity, [ with
respect to the kindred of that woman ;] but
it is certain that this does not occasion pro-
hibition, because the man, by producing an
ex-vulval emiss'on, manifests that coition
was not his intention ; wherefore it does 'not
*Arab. Zinna, meaning either fornication
or adultery. — (Vide Sales'* Koran )
*Such as ablution, and so forth.
30
MARRIAGE,
[VOL I.
stand as such. And, in like manner, if a
man enter a woman in ano, some have said
that this occasions prohibition from affinity
as such an act amounts to touching in lust ;
but it is certain that this does not occasion
prohibition, because the carnal conjunction
of the sexes does not stand as procreation
on any other principle than as it may be the
occasion of offspring, which it cannot possibly
be from the performance of the act as above
described,
A man cannot marry the sister of hit re-
pudiated w\fe during her Edit, — IF a man
repudiate his wife, either by a complete or a
reversible divorce, it is not lawful for him to
marry her sister until the expiration of her
Edit,* — Shafei maintains that is lawful,
because by either of those forms of divorce
the former marriage was completely dis-
solved, insomuch, that if a man were to have
carnal knowledge of his repudiated wife
during her Edit, knowing the illegality of
the same; he would be liable to tire punish-
ment for whoredom. — To this our doctors
reply, that whatever the nature of the di-
vorce may have been, whether reversible or
complete, the marriage with the first sister
does still, in fact, continue during her Edit,
in virtue of the continuance of several of its
effects, such as maintenance, and custody,
any inability to marry another man ; neither
does it appear, in the book of divorce, that
and punishment for whoredom is specified in
the ease of the husband having carnal con-
nexion with his repudiated wife within the
term of her Edit ; although, according to the
book of punishments, he would incur it,
because by the act of divorce, the husband's
right of cohabitation is dissolved and conse-
quently any subsequent cohabitation with
her would bear the construction of whore-
dom ; but yet his other rights are not dis-
solved (as was above observed), wherefore, if
he were to marry the second sister before the
expiration of the former's Edit, it would
amount to a marriage with two sisters at
one time, which is forbidden.
Marriage with slaves — A MASTER may not
marry his female salve, nor a mistress her
bondsman, because marriage was instituted
with a view that the fruit might belong
equally to the father and the mother, and
mastership and servitude are contradictory
to each other, wherefore it is not admissible
that offspring should thus be divided be-
tween the master and the slave.
And with Kitabees.-— MARRIAGE with a
Kitabec woman is legal, according to the
word of GOD, "WOMEN ARE * LAWFUL TO
YOU, SUCH AS ARE Mahsanas OF THE SCRIP-
TURAL " SECTS :", (the term Mahsana does
not, in this passage, imply a Muslamite, but
The time of probationt which a divorced
woman u to wait before she can engage in
a second 'marriage, in order to determine
whether Aor not she be pregnant by the for-
mer. See Book IV. Chap II.
merely a woman of chaste reputation,*) —
Free Kitabee women, and those who are
slaves, are equal in point of matrimonial
legality, as shall be demonstrated hereafter.
And with Majoosees. — IT is unlawful to
marry a Majoosee woman, GOD having said
"YE MAY HOLD CORRESPONDECE WITH
Kitabees, BUT YE MUST NOT MARRY THEIR
DAUGHTERS, NOR PARTAKE OP THEIR SACRI-
FICES."
And with Pagans.— IT is unlawfui to
marry a Paeran woman, according to the
words of the KORAN, "MARRY NOT A
WOMAN OF the Polytheists UNTIL SHE
EMBRACE THE FAITH."
And with Sabeans.— A MUSSULMAN may
marry a woman of the Sabeans, she believ-
ing the scriptures, and professing faith in
the prophets ; but if she worship the stars,
and believe not in any of the divine scrip-
tural revelations, it is unlawful to marry her
—such being inolator*.— The diversity of
opinion which is recorded between Haneefa
and the two disciples, originates in their
different ideas with respect to the Sabeans ;
each arguing according to his own premises,
for Haneefa accounts the Sabeans to be
Kirabees ; whereas the two disciples con-
sider them as worshippers of the stars.
Marriage during pilgrimage.— I? is lawful
either for a man or a woman to marry during
the Ihramf of pilgrimage.— Shafei alleges
that it is unlawful, And the same diffe-
rence of opinion obtains in the case of a
Mohrimt contracting in marriage a woman
to whom he is guardian.— Shafei supports
his opinion upon a precept of the Prophet,
"MOHRIMS marry not, nor cause to marry.
—In opposition to this, however our doctors
produce the instance of the Prophet himself,
who married Meyemoona whilst he was a
Mohrim; and with respect to the traditionary
precent citecfrbv Shafei, as above, it is to be
regarded as solely applvim? to the act of
carnal conjunction, that is to say, the word
Nikkah$ in that sentence is to be construed
into Wuttee,n— asif he had said, "Let not
MOHRIMS hold carnal connexion, nor
MOHRIMAS admit men to such connexion —
This indeed is rather a weak comment, since
the word Nikkah has never been construed
into the admitting of man to the commission
of the carnal act : but the better principle
upon which to answer it is that from the
grammatical construction of the sentence, the
*This comment upon the text is meant as
an exception to the general definition of the
term Mahsana, as explained in the laws con-
cerning slander, Book VII. Chap. V.
fThe period of the pilgrims remaining at
Mecca.
JA pilgrim, whilst he remains at Mecca.
§Meaning conjunction in its primitive
sense, and marriage in its occasional sense.
llLiterally conjunction, but generally ap-
plied to the carnal act.
BOOK II.— CHAP. I.]
MARRIAGE.
31
words of the Prophet may be rendered into
merely a negative remark rather than a
positive prehibition,
Mossolmans may marry female slaves. —
IT is lawful for a Mussulman, who is free, to
marry a female slave, whether she be a
Muslima, or Kitabeea, although he be in
circumstance to marry a free woman — that
is to say, able to pay a dower, and afford an
adequate maintenance to such a woman. —
Shafei says that a man cannot lawfully
marry a Kitabee slave, he holding that it is
not lawful for a freeman to marry any slave
except of necessity, because by such an act
he incurs the consequence of subjecting a
portion of his body to bondage ; that is to
say, his seed (which is a portion of his body)
by entering the womb of a slave, is born in
bondage ; 'necessity, therefore, he holds can
alone legalize such a marriage, and conse-
quently, that ability to pay the dower and
maintenance of a free woman prohibits a
freeman from marrying a slave ; but from
this rule he excepts Muslima slaves — with
our daughters, on the other hand, marriage
with female slaves of every description is
legal, because the text of the KORAN, on
which the legality of marriage is founded,
extends to all descriptions of womei^ to
slaves as well as to those who are free :— and
with respect to what Shafei objects, that
"by such an act a man incurs the conse-
quence of subjecting a portion of his body
to bondage," it may be replied that by
marrying a slave, a man is only withheld
from producing free children ; but it is not
thence to be concluded that he, de facto, sub-
jects a portion of his body to slavery, free nor
otherwise ; and as a man is at liberty to ab-
stain from producing the child itself (either
by not manying, or by marrying a woman
who is barren), it follows that he is certainly
at liberty to abstain from producing it in a
state of freedom. '•»
A man already wedded to a fret woman
cannot marry a slave.— IT is unlawful for a
man already married to a free woman to
marry a slave, the Prophet having issued a
precept to this effect, " Do not marry a slave
upon [along with] a free woman. —Shafei
savs that the marriage of a slave upon a
free woman is lawful to a man who is a
slave ; and Malik likewise maintains that
it is lawful, provided it be w:th the tree
woman's consent.— The above precept, how-
ever, is an answer to both, as it is general
and unconditional —moreover, the legality
of marriage is a blessing, to males and fe-
males equally, but the enjoyment of it is by
bond ace restricted to one half, insomuch
that slaves can have only two wives, where-
as freeman may legaly have four (as will
be explained hereafter), and slavery operat-
ing thus restrictively upon males does so
equally upon femiles ;-upon the former it
operates by a rest-iction in point of member,
as above; but since, with respect to females,
this is impossible, it has its effect by a re-
striction in point of circumstances ; for in-
stance, by restricting the legality of the
marriage of female slaves to certain par-
ticular circumstances, as in the present case,
where it is admitted only under the circum-
stance of the man not having any free wives.
But a man wedded to a slave may marry
a free woman. — A MAN may lawfully marry
a free woman upon a slave, the Prophet hav-
ing so declared : — moreover, a woman who is
free is lawful under all circumstances, the
principle of restriction before mentioned not
operating with respect to such a woman.
IF a man marry a slave during the Edit of
complete divorce of another wife who is free,
it is null, according to Haneefa. — The two
disciples allege that it is valid, as under the
circumstances now recited it does not amount
to marrying a slave upon a tree woman ;
whence it is that if a man were to make a
vow that he would not marry another woman
upon his present wife, and he were after-
wards to divorce his wife, and to marry
another woman during her Edit, he would
i not forsworn. "The argument of Haneefa,
in this case, is that the marriage with the
free wife does still in some shape remain, on
account of the continuance of several of its
effects ; wherefore that with a slave during
the term of the free woman's Edit is not
admissible, on a principle of caution : con-
trary to the case of a vow, rs recited above,
because there the intention of the vower goes
onlv to express that he would not introduce
another wife to the prejudce of her right
of Kissm ; but her right of Kissm* is
annihilated by divorce.
pour wivh allowed to freemen.—!? is
lawful for a foreman to marry four wives,
whether free or slaves : but it is not lawful
for him to marry mare than four, because
GOD has commanded in the KORAN, saying
"YE MAY MARRY WHATSOEVER WOMEN ARE
AOKEEABLE TO YOU, TWO, THREE, OR FOUR,"
and the numbers being thus expressly men-
tioned, any beyond what is there specified
would be unlawful. — Shafei alleges a man
cannot lawfully marry more than one womai
of the description of slaves, from his tene*
as above recited, that, "the maraiage of free-
men with slave; is allowable only from ne-
cessity :" the text already quoted, is, who-
ever, in proof against him, since the term
Nissa [woman] applies equally to free women
and to slaves.
And two to slaves. — IT is unlawful for a
man who is a slave to marry more than two
women : Malik maintains that it is lawful
for a slave tp marry as many women as a
freeman, he holding it as a principle, that a
slave, with respect to marriage, is in every
particular the same as a free person, inso-
much that (according to him) a slave is au-
thorised to marry whithout his proprietors'
consent. — The argument of our doctors, in
"Impartiality in cohabitation with his
wives. See Chap. VI.
MARRIAGE.
[VOL. L
this case, is that slavery operates to the pri-
vation of one half of the natural privileges
and enjoyments and the legality of four
wives in marriage being of this description,
it follows that the privilege of a slave ex-
tends to the possession of two wives only, in
order that the dignity cf freedom may be
duly supported.
A man having the full number of wives
allowed, cannot marry during the Edit of
one of them. — IF a man, having four wives,
repudiate one of them, it is unlawful for
him to marry any other woman during the
term of that wife's lidit, whether the Divorce,
under which she stands repudiated, be re-
versible or complete. Shafei's doctrine dif-
fers from this. His reasoning, and the re-
ply to it, are the same as in the case of a man
marrying a sister of his wife during the term
of the latter's Edit.
A man may marry a woman pregnant by
whordeom. — A MAN may lawfully marry a
woman pregnant by whoredom, but he must
not cohabit with her until aftpr her delivery.
— This is the doctrine of Hancefa and Mo-
hammed.— Aboo Yoosaf says that a marriage j
made under such a circumstance is invalid: j
if, however, the descent of the Foetus be known j
and established, the marriage is null, accord- I
ing to all the doctors — The argument upon I
which Aboo Yoosaf supports his opinion as
above, is, that the illegality of the marriage,
in cases where the parentage of the Foetus
is established, originates purely in a prin-
ciple of tenderness towards the Foetus, and
a Foetus is an object of this tenderness, al-
though it be begot in adultery since it is in-
nocent of any offence ; whence ^rocurir^g the
abortion of it is illi gal ; marriage, therefore,
with a woman pregnant by adultery is invalid,
equally with one where the parentage of the
Fcetus is aesertained, and for the same reason.
Our doctors, upon this point, argue that the
woman is lawful in matrimony, on the au-
thority of the sacred writings, the KORAN
saying, "ALL WOMEN ARE LAWFUL TO YOU,
EXCEPTING THOSE WITHIN THE PROHIBITED
DEGREES :" and the prohibition of cohabita-
tion until after delivery, is merely on account
of the impropriety of sowing seed in a soil
already impregnated by another, a prohibi-
tion which occurs in the traditions. With
respect to what Aboo Yoosaf alleges, that
"the illegality of the marriage in case where
the parentage of the Fcetus is established
originates purely in a principle of tenderness
towards the Foetus," —it is a'together un-
founded, because the" nullity of the marriage
in that case originates in a regard for the
right, or the Foetus, but of the father.
But not a captive taken in that state. — IT
is unlawful to marry a woman taken in war,
being pregnant at the time of her capture,
because the parentage of her Foetus is ascer-
tayied.*
*As<*necessarily proceeding from some one
of *he encmy-
A man cannot contract his Am-Walid
(being pregnant) to another. — IF a man con-
tract his Am-Walid, who is pregnant by him.
to another man, it is null, because the Am-
Walid is accounted as the Firash of her
master, or partner of his bed, insomuch that
the parentage of her child is established by
the law in him, independent of any forma
claim or acknowledgment thereof on his part,
wherefore, if the marriage were valid, it would
induce the existence of a right to cohabita-
tion in two individuals with one and the
same woman, a right which is null, as it
would occasion a doubtful parentage.
OBJECTION. — The Am-Walid being de-
clared the Firash of her master, it would
appear that his marriage of her to another
would not be legal, although she were not
pregnant
REPLY. — The Firash right of a master in
his Am-Walid is of but weak consideration ;
whence it is, that if he were to deny her
child's descent from him, it would become
bastardized on the instant, without any as-
severation. His Firash right in her, there-
fore, not being of any account, independent
of pregnancy, is not prohibitory to her mar-
riage, unless as connected with that circum-
stance.
But he may so contract his enjoyed femal*
slave. — IF a man have carnal connexion with
his female slave, and afterwards contract her
in marriage to another man, it is lawful ; be-
cause an absolute slave is not accounted as a
Firash, or partner of her master's bed sinee,
if she were to produce a child, the parentage
would not be established in him unless he
were to claim it. — But yet it is advisable that
the master, previous to contracting her to
another person, suffer one term of her
courses to elapse, so as to guard against the
possibility of his seed mixing with that of
the other. — It is to be remarked, in this
place, t*hat the marriage of the slave, under
the circumstance now mentioned, being valid,
it is lawTul for her husband to have carnal
connexion with her immediately, and before
her purification from her first succeeding
courses, according to Haneefa and Aboo
Yoosaf. — Mohammed alleges, however, that
it will be laudable in the husband to abstain
from carnal connexion with her until one
complete term of her courses shall have
elapsed, because it is possible that there
may remain in her womb seed of her
master. — wherefore it is requisite that it be
purified of that seed, the same as in a case of
the purchase of female slave, — The argu-
ment of the two Elders, in this casz, is that
the institute of the law, legalizing her
marriage, is in itself a proof that her womb
is unoccupied, as the law does not admit
any marriage to be legal but under that sup-
position ; wherefore purification, in the pre-
sent instance, is not mac'e a rule, either
laudadle or injunctive : contrary to a case of
purchase, that of a female slave being held
lawful although she be pregnant.
IF a man marry a woman, knowing her to
BOOK II —CHAP. I.]
MARRIAGE.
S3
have been guilty of whoredom, he may
lawfully have carnal connexion with her
immediately, before her purification from
her courses, according to the two Elders :
but Mohammed deems it laudable that he
have no such connexion with her until after
her purification. — The reasoning of each
upon this point is to the same effect as in
the preceding cas*.
An usufructuary marriage is void. — A
NIKKAH MATAT, or usufructuary marriage,
where a man says to a woman "I will take
the use of you for such a time for so much,"
is void, all the companions having agreed in
the illegality of it. — It is related in the
Nakl Saheeh, that Ibn Abbas retracted from
his first opinion and embraced that of the
other companions : — for Ibn Abb is was first
of opinion that the usufruct here mentioned
is allowable ; but Ale.- informed him that
the Prophet had declared it unlawful, upon
which he retracted from his opinion of
usufruct being allowable : - and Ibn Abbas
having thus retracted, all the companions
appear to have agreed concerning its ille-
gality.
And so also a temporary marriage. — A
NIKKAH MOWOKKET, or temporary marriage,
— where a man marries a woman, under an
engagement often days (for instmce) in the
presence 'of two witnesses, —is null. Ziffer
asserts that such marriage is valid and bind-
ing, the condition expressed of a specified
period fur its continuance being of no effect ;
because a marriage is not to be held null on
account of a null or illegal condition therein
expessed. — The argument of our doctors is
that a temporary marriage is of the same
nature with a usufructuary marriage ; and
in all contracts regard is had to the sense
rather than to the latter, wherefore a tempo-
rary marriage, is null as well as a usufruc-
tuary marriage, whether the period specified
be short or long ; because the principje on
which a contract of marriage falls under the
description of Matat, or usufructuary* is its
containing a specification of time; and the
same is found in a Nikkah Mowokket, or
temporary marriage.
Case of a double marriage by one contract.
— IF a man marry two women by one con-
tract, one of whom is lawful to him, and
the other prohibited, his marriage with the
one who is lawful holds good, but that with
the other is void because in that only a cause
of nullity is found : contrary to where a man
puts together a freeman and a slave, and
sells them by one agreement, as such sale is
null with respect to both, because sale is
rendered nuU by an invalid condition, and
the consent to the contrict of sale is required
with respect to the free person, in order to
the legality of it with respect to the slave ;
this is therefore an invalid condition, as
shall be demonstrated in treating of slaves, —
It is to be observe!! that the whole of the
stipulated dower, in tru case now recited,
goes to her with respect to whom the
marriage is lawful, according to Haneefa. —
With the two disciples, on the contrary, the
dower is divided into the proper dower to
each*, and therefore she with respect to
whom the marriage is legal receives the
amount of her proper dower, and the re-
mainder drops in favour of the husband ; and
the same is recorded in the Mabsoot.
Case of marriage by a judicial decree.—
IF a woman sue a man on a plea of marriage,
declaring that such an one had married her,
and produce evidence in proof of her affirma-
tion, and the Kazee accordingly declare her
to be the wife of such a man, and it should
so happan that the man had never been
actually married to that woman, yet he may,
after this, lawfully reside with her ; — and
this is a sign of the authority of a judicial
decree (or order of the Kazce) in regard to
appearance ; and if the woman desire carnal
connexion, the man may lawfully hold such
connexion with her ; — and this is a sign of the
authority of a judicial decree, in reality, — The
authority of the judicial decree extending
j both to appearaace and reality is a tenet of
I Haneefa ; and is also found in a prior opinion
I of Aboo Yoosaf. — In a more recent opinion of
Aboo Yoosaf, and with Mohammad and Sha-
fei, it is not lawful for the man to have carnal
connextion with this woman, because the
Kazee has erred in his proof, as the witnesses
bore false testimony, and an error in the
proof destroys the authority of the decree
in regard to reality ; wherefore it is, in some
measure, the same as if the witnesses were
slaves or infidels, in which case the decree
would have no authority either in appear-
j ance or reality^; and so it would appear in
j the present instance likewise ; but here the
decree has authority in regard to appearance,
on account that the witnesses gave a true
testimony in appearance ; yet it has no
authority in reality, as their testimony is
false in point of fact ; whereas, where the
witnesses are slaves or infidels, the decree is
destitute of authority in appearance also, as
the proof remains unestablished even in
appearance, since the discovery of their being
slaves or infidels is practicable. — The argue-
ment of Haneefa is that the witnesses are,
held, with the Kazee, to bear true testimony
and this is proof, as it is impossible to ascer-
tain whether their testimony be actually
true : contrary to the state of bondage, or
the infidelity of witnesses, as those are
circumstances easily known and ascertained,
wherefore their evidence is not proof in any
way. -Now the decree being founded on the
proof, and the authority of the decree, in
respect to reality, being here possible, by
previously taking the marriage for granted,
as a matter of necessity, it follows that the
decree has authority in respect to reality, in
order that the contradiction between the two
may be obviated in every shape, — for if she
•That is to say, a dower suitable*oi pro-
portioned to the rank and circumstance of
each respectively.
34
MARRIAGE.
[Vet. I.
were not lawful to him in reality, it would
occasion a contradiction between the two,
instead of obviating a contradiction ; con-
trary to a case of property claimed generally
(that is to say, without any mention of the
, cause of propriety), such as if a man were
to claim a female slave generally, and bring
jfalse evidence, and the Kaxee decree the
slave to the plaintiff, and it afterwards
appear that the witness bore false testimony,
— for in this case the dccne has authority in
appearnce, but not in reality, because the
cause of propriety in the slave are several,
such as sale, purchase, gift, and inheritance,
and regard cannot legally be had to any one
of these as being prior to the other, since no
one of them has precedence of the others,
and to regard the whole of them as prior, is
impossible ; wherefore the decree cannot
possess any authority [in reality]. Observe
that the previously taking the marriage for
granted, as a matter of necessity, is on
account that a decree signifies the promul-
gation of a thing which is established, and
not the establishment of a thing which is not
established — for, if it were not previously
taken for granted, it would follow that a
decree signfies the establishment of a thing
which is uncstablished, wherefore the mar-
riage is necessarily first taken for granted ;
and this is possible in the case of a claim of
marriage, but not in a case of general
propriety, for the causes of propriety there
are multifarious, and no one of these has
priority over the other ; — in such a case,
therefore, the regarding of any one cause of
propriety as prior to the others is impossible.
CHAPTER II.
OP GUARDIANSHIP AND EQUALITY.
An adult female may engage in the contract
without her guardian's consent. — A WOMAN
wh j is an adult, and of sound mind, may be
married by virtue of her own consent, al-
though the contract may not have been made
or acceded to by her guardians ; and this,
whether she he a virgin or a Siyeeba. — This
is the opinion of Haneefa and Aboo Yoosaf,
as appears in the Zahir-Rawayet. — It is re-
corded, from Aboo Yoosaf, that her marriage
cannot be contracted except through her
guardian. Mohammed holds that the mar-
riage may be contracted, but yet its validity
is suspended upon the guardian's consent :
on the other hand, Malik and Shafei assert
that a woman can by no means contract her-
self in marriage to a man in any circum-
stance, whether with or without the consent
of her guardians : — neither is she competent
to contract her daughter 'or her slave, nor to
ict as a matrimonial agent for any one, so as
:o enter into a contract of marriage on be-
half" of her constituent ; because the end
>roposed in marriage, is the acquisition of.
those benefits which it produces such as pro-
creation, and so forth; and if the perfor-
mance of this contract were in any respect
committed to women, its end might be de-
feated, they being of weak reason, and open
to flattery and deceit. — Mohammad argues
that this apprehension is done away by the
permission of the guardian being made a
requisite condition. — The reasoning upon
which the Zahir-Rawayet proceeds in this
case is that, in marrying the woman has
performed an act affecting, herself only, and
to this she is fully competent, as being sane
and adult, and capable of distinguishing
good from evil, whence it is that she. is by
law capacitated to act for herself in all mat-
ters of property and likewise to choose a
husband ; neither does a woman require her
gurdian to match her for any other reason
than is she may, by that means, avoid the
imputation which might be thrown upon her
modesty if she were to perform this herself ,*
for all which reasons a woman contracting
herself in marriage is valid, independent of
her guardian, although it should be un-
equal match ; but yet, in the latter case, the
guardian is at liberty to dissolve the mar-
riage.
Unless the match be unequal. — IT is re-
corded as an opinion of Haneefa and Aboo
Yoosaf, that the marriage is illegal if there
be an inequality between the parties, — It is
also recorded that Mohammed afterwards
adopted the sentiments of the two elders
upon this point, and agreed with them, that
the marriage here treated of is lawful, and
that its validity is suspended upon the
approbation of the guardian.
An adult virgin cannot be married against
her will. — IT is not lawful fora guardian to
force into marriage an adult virgin against
her consent. — This is contrary to the doc-
trine of Skafei, who accounts an adult virgin
the'same as an infant, with respect to mar-
riast, since the former cannot be acquainted
with the nature of marriage any more than
the latter, as being equally uninformed with
respect to the matrimonial state, whence it
is that the father of such an one is em-
powered to make seizin of her dower without
her consent. — The argument of our doctors
i« that the woman, in this case, is free, and
a Mokkatiba (that is, subject to all the obli-
gatory observances of the law, such as fast-
ing, prayer, and so forth), wherefore no per-
son is endowed with any absolute authority
of guardianship over her ; contrary to the
case of infants, over whom others are neces-
sarily endowed with this authority, the
understanding of such being defective,
whereas that of an adult is held complete,
in consequence of her having attained to
years of discretion ; for, if it were otherwise,
she would not be subject to the obervances
of the law: from all v£hich it follows that
this woman is the same as an adult son ; and
that all her acts with respect to matrimony
are good and valid, the same as his with re-
spect to property ; neither is her father em-
BOOK II.— CHAP. II.]
MARRIAGE.
35
powered to make seizin of her dower without
her consent expressed of virtually under-
stood, as he is not at liberty to do so where
she has forbidden him.
Tokens of consent from a virgin. — WHEN-
EVER a guardian, being the person empowered
to engage in the contract, requires the con
sent of an adult virgin to a marriage, if she
smile or remain silent, this is a compliance ;
because the Prophet has said, "A virgin must
be consulted in every thing which regards
herself ; if she be silent it singifies
assent ;" and also because her assent is rather
to be supposed as she is ashamed to testify
her desire ; and laughter is a still more cer-
tain token of assent than silence ; contrary to
weeping, as this manifests abhorrence, since
tears are most commonly the effect of grief,
and not of joy, which is rarely the occasion
of them, and therefore not to be regarded.
— Some have said that if her laughter be in
the manner of jest or derision it is not a com-
pliance ; nor is her weeping a disappoval, if
it be not accompanied with noise or lamen-
tation.
BUT if a marriage be proposed to an adult
band to her is a requisite condition, but not
the specification of the dower. — It is to be
here observed that, if the person who con-
veys the intelligence to her be a Fazoolee
(that is, one who is neither an agent nor
guardian), number or integrity are conditions
essential to the effect; that is to say, the
information must be conveyed to her by two
persons, or at least by one person of known
good repute, according to Haneefa : but if
the informer be acting merely as a messenger
from the guardian, than neither number nor
integrity are conditions; according to ail the
doctors. There are many cases similar to
this with respect to the point at persent in
question, such as the recall of an ambassador,
and the revocation of the privileges of a
Mazoon.
Token of consent from a Siyeeba. — IF a
guaidian propose a marriage to a Siyeeba
(or woman with whom a man has had carnal
connexion), it is necessary that her compli-
ance be particularly expressed by words, such
as, "I consent Jo it," because the prophet
has said, "SIYEKBAS are to be consulted,"
and also because a Siyeeba, having had con-
virgin by any other than her guardians, or j nexion with man, haa not the same pretence
by a Walee Bayeed (or guardian of a more
distant degree than her father, brother, or
uncles), her silence or laucjhtcr are not suf-
ficent, until she shall from her lips pronounce
an explicit compliance, because here her
silence might be construed to arise from
shyness towards such a person as being a
slrantzer, and not from her consent to the
match ; and if it were even to be considered
as a token of approbation, yet, under such a
circumstance, it must be regarded as doubt-
ful ; but this is not the case if the person
who proposes the marriage be acting merely
as a messenger from her parent, or other im-
mediate guardian ; because to such an one
the same signs of assent or dissent suffice as
were specified in the preceding ^ase.— 7lt is
here to be observed that, in requiring* the
woman's consent as aforsaid. it is requisite
that the husband proposed to her be particu-
larly named and described, so as to enable
her to form some id«a of him, whereby to
ascertain her liking or dislike ; but it is un-
necessary to name or specify the dower ; and
this is approved, because marriage may be
effected independent of any dower, as that is
not essential to it.
IF a man contract an adult virgin in mar-
riage to another without her knowledge,
upon her receiving intelligence of it the
same tokens suffice, to singify her CDmpli-
ance or approval, as were specified in the
former case ; that is to say, if she laugh or
remain silent she consents, or if she weep
she disapproves, provided the person con-
tracting on her behalf be her guardian, and
as such empowered so to contract ; but if
the contract be cohered into by any other
than her guardian, her consent is not under-
stood until she shall have expressed the same
in terms ; and in this, as in the preceding
case, the naming and describing ofthehus-
i to silence or shyness as a virgin, ano! conse-
quently the silent siyrns before intimated are
not sufficient indications of her assent to the
proposed alliance.
Cases under which a woman is still con-
sidered as a virgin, in respect to the tokens
of consent — IF the signs of virginity in a girl
should happen to be effaced, either by leap-
ing or any other exertion, or by a wound, or
by frequent repetition of the menses, yet
she is still to be considered as a virgin that ;
is to say, her silence is a sufficient sign of
her acquiescence in a marriage proposed,
because she is still in reality a virgin, the
law accounting every woman such who has
not had carnal connexion with the other sex,
— and consequently subject to the same shy-
ness and reserve, from her not being accus-
tomed to male society. — And if the signs of
virginity be effaced even by formication, yet
she here also stands as a virgin, according
to Haneefa. Aboo Yoosaf, Mohammed, and
Shafei are of opinion that the silence of
such an one is not a sufficient token of con-
sent to a marriage proposed because she is
actually a Siyeeba, since she has actually
had connexion with man — Haneefa in this
case argues that people in general still sup-
pose her to be a virgin, and hence consider
her speaking as a breach of decorum, and
consequently she will refrain from speech ;
her silence, therefore, must be held sufficiant,
lest her delicacy b^ violated ; contrary to a
case where a woman has lost her virginity
either in an erroneous or an invalid mar-
riage, as such an one would not be held a
virgin with respect to the point in question,
the law having manifested her carnal cont
nexion, by instituting, in her case,% obser-
vance which are a consequence of it (such
as Edit and Dower), and by establishing the
parentage of her child, whereas it recom?
36
MARRIAGE.
VOL. I.
mends as laudable, the concealment of forni-
cation : this, however, is only where the case
is not of a very notorious nature ; for if a
woman be known to abandon herself to for-
nication publicly, her silence would not be
deemed sufficient.
Cast of allegtion and denial — IP a man
should say to a woman, "You have heard of
your being contracted to me by our friends,
and remained silent"; and she reply, "No,
1 refused you," or, "I dissented," her de-
claration is to be credited — Ziffer says that
the declaration of the husband is to be cre-
dited, on account that silence is the original
state of man, wherefore the person who ad-
heres to that is the defendant ; and the re-
pulsion of the marriage is supervenient,
wherefore the person who adheres to that is
the plaintiff ; the case is therefore the same
as where a person enters into a contract of
sale under a condition of option, and pleads
a rejection after the time of option has elapsed
and the other denies the rejection,— -for in
that case the declaration of the denier is to
be credited, as he adheres to what is original,
to wit, silence. Our doctors, on the other
hand, say that the husband, in the present
case, on account of his plea of silence, pleads
the obligation of the contract of marriage
and consequently of his being the proprietor
of the women's person;* and, that the wife
by pleading the rejection, sets aside the claim
of her husband, and must therefore be con-
sidered as the defendant, in the same manner
as when a depositee pleads the restoration of
a deposit, and the proprietor of the deposit
declares that he had not returned it to him ;
because, in such a case, the declaration of the
trustee would be credited, since he is in re-
ality the defendant, although in appearance
he be the plaintiff, for he frees himself from
responsibility, and the original state of man
is freedom, and an exemption from responsi-
bility: —it is otheiwise with respect to the
case of a condition of option in sale, because
the obligation of a sale is manifested after the
lapse of the time option, and therefore the
person who pleads the rejection is plaintiff
both in reality and in appearance. But here,
if the husband should produce evidence in
support of his silence, the marriage becomes
established: if, however, he have no evidence,
then an oath must not be imposed upon the
wife, according to Haneefa.— This is one out
of six cases in which an oath is incumbent
upon the defendant according to Haneefa,
in opposition to the opinion of the two dis-
ciples : as will be fully treated of under the
head of sales. »
Infants may be contracted by their guar-
dians. —TuE marriage of a boy or girl under-
age, by the authority of their paternal kin-
dred, is lawful, whether the girl be a virgin
or not, the Prophet having declared, "Mar-
*Arati : Booza, i.e Genitale Mulieris. The
phrase here adopted is to be thus understood
in.niar'riage and divorce, throughout.
riage is committed to the paternal kindred."
Malik alleges that this is a power the excecise
of which does not appertain to any of the
kindred except the father. — Shafei maintains
that it belongs only to her father or grand-
father: and he adds that this privilege does
not appertain to any guardian whatever with
respect to an infant Siyeeba, although he be
her father or her grantfather.— Malik argues
that power over freemen is estalished from
necessity ; but in the present instance no such
necessity exists, as infants are not subject
to any canal appetite : yet it is vested in a
father, on the authority of sacred writings
contrary to what analogy would suggest : —
but he also says that a grandfather, not be-
ing the same as a father, is not to be included
with him. Our doctors, on the other hand,
allege that the guardianship vested in a
father is in no respect contrary, but is rather
agreeable to analogy ; because marriage is a
point which involves in it many considera-
tions, both civil and religious ; and it is not
perfect unless the parties he equal in degree
according to the customary acceptation ; and
this equality is not always to be found; where-
fore authority is vested in the father to con-
tract his children during their minority, lest
an opportuniry of marrying them equally
might he lost. —Shafei argues, that entrust-
ing the power of contracting marriage to any
others than the father or grandfather would
be oppressive upon the child, since it is to be
supposed that no others are equally interested
in its welfare or happiness ; on which prin-
ciple it is that kindred of a more distant de-
gree arc not empowered to act with respect
to the property of infants, a matter of infi-
nitely less importance than their persons, and
consequently the acts of such, with respect to
the latter, are unlawful a fortori— Our doc-
tors argue, that affinity is a cause of affection
in other relations the same as in the parents,
and in whatever degree that may be defective,
a provision is made against any evil conse-
quence, by vesting in the child an option of
acquiescence in the match after puberty,
which acquiescence is necessary to constitute
its validity ; contrary to the case of acts with
respect to propety, because these are capable
of repetition, since they are done with a view
to the acquisition of gain, which cannot be
obtained but by such repetition ; and such
being the case, if any loss should happen in
the property, it^ is irretrievable ; wherefore
authority to act in respect to property is use-
less, unless it be absolute : and absolute au-
thority cannot be established where there, is
any defect. The argument of Shafei, in sup-
port of his second proposition (to wit "that
this privilege does not appertain to any quar-
dian whatever with respect to an infant
Siyeeba, although he be her father or grand-
father"), is, that her becoming a Siyeeba is
to be considered as endovung her with suffi-
cient understanding and capacity to act and
judge for herself, on account of her being
thus accustomed to male society, wherefore
the law operates upon this consideration
BOOK H.-CHAP. II.]
MARRIAGE.
37
without any regard to the absolute fact of her
being endowed with such a portion of under-
standing or not, as that is a matter which
does not readily admit of ascertainment. To
this our doctor rep'y, that the infant re-
quires a guardian whose tenderness and af-
fection must be necessarily admitted ; neither
can her acquaintance with the other sex be
considered as endowing her with any addi-
tional portion of understanding in regard to
mankind, without concupiscence, which, in
a child, does not exist. — It may also be far-
ther observed that the precept of the Prophet
already quoted is general and indiscriminate,
say, if a master marry his female slave to any
person, and afterwards ^ emancipate her, she
will have a right of option upon her emanci-
pation ; if she please the marriage continues,
but if she disapprove it is dissolved ; and the
decree of the Kasee is not essential to such
dissolution : but it is otherwise in the case of
option after maturity j because that option
is reserved with a view to guard against
injury to the other rights of the parties,
which mifjht occur in a variety of instances,
and which if admitted (as, if the marriage
were absolute, thev must be), would be cal-
culated to introduce many evils into the
married state, since the guardian might, for
and therefore includes all relations equally ; . „ „.._,._.
which makes it a sufficient answer to Malik ' instance, in executing the contract, agree to
and Shafei. | an inadequate dower, or to an unequal
RELATIONS stand in the same order in point [ match; and as the dissolution of the mar-
rieht thtis tenrls to affect other rights, a
decree of the Ka?ee is essential therein ; but,
in the cnse of the female slave, the right of
option after emancipfton is intended as a
sccuritv against an evident injury to herself
as the husbandVpower over her is extended,
and his authority, as well as her obligations,
in manv resnects enlarged, by her cmancina-
of authority to contract minors in marriage
as they do in point of inheritance ; but this
authority, in the more distant relatives, is
superseded by the existence of those of a
nearer degree.
Case in which the marriage of infants con-
tinues binding after pubertv — IF the mar-
riage of infants be contracted by the father or r . . ., e
grandfathers, no option after puberty remains i tion from slavery ; whence it is that this
to them ; because the determination of parents j right of option is restricted to female slaves
in this matter cannot be supected to origj- i only, «md does not extend to males, to whom
natc in sinister motives as their affection for \ the above principle would not apply ; and
their offspring is undoubted ; wherefore the i such being the ca^e, the dissolution of her
marriage is binding upon the parties, the ! marriage is to he recorded merely as the rc-
same as if they had themselves entered into
it after maturity. '
Case which admits an option of acquit- •
scence after puberty.— BUT if the contract |
should have been executed by the authority '
of others than their parents, each is rcspcc- i
tivcly at liberty, after they become of age, to
choose whether the marriage shall be con-
firmed or annulled. — This is according to
Haneefa and Mohammad. Aboo Yoosaf
movnl of a hardship from herself, in which
the decree of the Kazee is no wav necessary,
since nil persons are entitled to relieve them-
selves from evil .
Token of acquiescence nfter pubertv. — IF
the female, thus contracted durinc? infancy,
be of age when the marriage is first men-
tioned to her, and she upon that occasion
remain silent, her silence (according to
Haneefa and Mohammed), is to be con-
maintains that, in this case also, no option ! strucd into consent : but if she continue
remains to them, since he considers all guar-
dians to be the same as parents. ,To this
Haneefa and Mohammed reply, that the
more distant the guardians stand in their
ignorant of the contract, her rieht of option
is still reserved to her, until such time as she
is informed of it, and remain silent as above.
—Mohammed, in this case, makes it a condi-
affinity to the parties, the. less warm arc tion that the girl be duly informed of the
their affections supposed to be ; whence it is I rnarriaqe. because she cannot exert her right
to be apprehended that, in contracting the ! of option without a knowledge of the cir-
marriage, self interest, or some other sinister . ----- *L- *i:— ™.. -«•—* *u-
motive, might operate in their minds to the
disadvantage of the infant under their guar-
dianship, an evil which is provided against
by leaving an option to the infant after
maturity. — It is to be observed, however,
that this case, applying generally to all
except the father and grandfather, includes
the mother of the infant, and a1<»o the Ka?ec
bccause^thc former, as being a woman, is de-
ficient in judgment ; and the latter, as a
stranger, in affection ; and consequently a
neht of option must be reserved to the infant
after maturity.— It is also to be remarked
that, in dissolving* the marriage, decree of
the Kazee is a necessary condition in all
cases of option exerted after maturity ; con-
trary to the rule in the exertion of a similar
right of option after manumission ; that is to
cumstance, as the guardian may effect the
marriage altogether unknown to her, and it
may consequently happen that she never
hears of it, and of course she would remain
excused (as to her silence) on the ground of
ignorance ; but he does not make a know-
ledge of her right of option a condition, be-
cause that is an institute of the law, and
ignorance is ncYplea with respect to an insti-
tute of the law, with which it is supposed
that every person ought to be acquainted ;
the case is otherwise with a female slave,
who being employed in the service of her
master has no opportunity to obtain any
knowledge of the law, wherefore ig-ioranCe
of this point is a good plea in favour of the
continuance of her right of option.
Circumstances which annual the right of
option.— THE right of option in a virgin.
38
MARRIAGE.
[Vet. I.
after maturity, is done away by her silence ;
but the right of option of a man is not
done away by the same circumstance, nor
until he express his approbation by word or
by deed, such as presenting her *>"«•<»-
habiting with her, and so forth : and in like
manner the right of option of the female
after maturity (in a case where the husband
has enjoyed her before she attained to that
state), is not annulled until she express her
consent or disapprobation in terms (as if she
were to say "I approve," or "I . disap-
prove)", or until her consent be virtually
shown by her conduct, in admitting the
husband to carnal connexion, and so */>rtn-
Degree of the continuance of a right of
option after maturity.— THE option of ma-
turity of a virgin is not protracted to the end
of the assembly ;• but that of a Siyeeha, or a
vouth, is not annulled even by the nsme
from the assembly, because the option of
maturity is established by dissent, on account
of the apprehension of ihe ends of marriage
being defeated ; and whatever is established
bv dissent is annulled by assent, on account
of its advantage being obtained ; now the
silence of a virgin is assent, but not th<jt ot a
Siveeba or a youth : wherefore the option of
the former is annulled, but not that of the
two latter :—moreover, a Siyeeba's option of
maturitvt has not been established by the
act of her husband, as is evident ; and a
circumstance which is not established by the
act of the husband is not restricted to that
assembly, since that only which is delegated!
is so restricted, as shall be hereafter demon-
stratcd ; § contrary to the option of manumis-
sion, as that is not annulled by silence, hut
is protracted to the end of the assembly, and
annulled by the rising from the assembly,
because the option of manumission is estab-
lished by the act of the master, namely,
emancipation : and hence regard is had to
the Majlis in this case, as well as m that of
a woman endowed by her husband with an
option of divorce.
Separation in consequence o/option ts not
divorce. — A SEPARATION between a husband
and wife in consequence of option after ma-
turity is not divorce, from whatever side it
proceed, because it may with propriety
proceed from the wife, whereas divorce can-
not. And so also, separation in consequence
of option after manumission is not divorce,
for the same reason. m
Rule inheritance in the marriage of
infant*.— IF a girl who has been contracted
in marriage by her puardian, as already
stated, should die before she attain maturity,
•Arab, Majlis, meaning the place or com-
pany in which she may happen to be at the
time of her attaining maturity. It is treated
of at large elsewhere. Vide Index.
afBy option of maturity, and option ot
manumissjon, is meant, option of acquie-
scence after maturity, or after manumission.
JNamely, a power of divorce.
§See Book of Divorce, Chap. III.
her husband inherits of her : and, in like
manner, if a youth so contracted should
die before he attains maturity, his wife
inherits of him ;-^and so also, if either
should happen to die after maturity, with-
out a separation having taken place ; —
because the marriage contract was regular
and valid as origine, and would remain so,
until dissolved to the dissent of one or both
of the parties in the event of their arriving
at maturity ; but this being precluded by
the demise of one of them, the marriage con-
tinues good for ever ; and consequently all
the mutual privileges established in the
parties by the marriage are irreversibly con-
firmed by the decease of either of them: —
contrary to the case of a marriage contracted
by an unauthorized person, where, if either
of the parties were to die before assent being
duly expressed, the other would not inherit ;
because, in this case, the existence of the
marriage is suspended upon the consent of
the parties, and is consequently rendered
null by the demise of either previous to the
declaration of their will in it ; whereas, in
the other case, the decease of either party,
previous to maturity or separation, as afore-
said, does not annul, but rather confirms
their marriage.
Persons incapable of ncting as guardians
in marriage.— AUTHORITY to contract others
in marriage is not vested in a slave, an
infant, or a lunatic, because such persons,
being considered in law as incapable of
acting for themselves, are incompetent to
exercise any authority over others, a fortiori ;
moreover, this authority is established in
guardians and others out of tenderness to
persons who, from their situation, require
attention and care (such as infants and
lunatics ; but this would not be manifested
by, committing the execution of marriage,
on their behalf, to persons of the above
descriptions.*
A* infidel cannot be vested with this au-
thority tyith respect to a Mussulman, male
or female because the word of GOD says
"HE DOTH NOT AUMIT INFIDELS TO ANY
CLAIM UPON BELIEVERS ;" and, if this au-
thority were vested in in infidels, it would be
admitting them to such a claim, and hence
also it is. that the evidence of infidels re-
garding Mussulmans is not admitted ; and,
iipon the same principle, that Mussulmans
and infidels cannot inherit of cacli other.
AN infidel is vested with this authority
with respect to his children who are infidels,
the word of GOD saying, ''INFIDELS MAY
EXERCISE AUTHORITY OVER INFIDELS ;"
whence it is that the evidence of infidels
regarding infidels is admitted, and that in
heritance obtains among them.
Maternal relations may act in defect of
the paternal. — IN defect of paternal rela-
tions, authority to contract^ marriage apper-
tains to the maternal (if they be of the same
family or tribe), such as the mother, or mater-
nal uncle or aunt, and all others within the
prohibited degrees, according to Haneefa,
BOOK II.— CHAP. II.]
MARRIAGE.
upon a principle of benevolence. — Mohammed
alleges that this authority is not vested in
any except the paternal kindred ; and there is
also an opinion of Haneefa on record to this
effect. — Of Aboo Yoosaf two opinions have
been mentioned ; according to that most
generally received, he coincides with Mo-
hammed ; and their arguments on this sub-
ject are twofold : FIRST, the Prophet has
declared "Marriage is committed to the
paternal kindred" (as was before quoted) ;
SECONDLY, the only reason for instituting
this authority is that families mav be pre-
served from improper or unequal connexion ;
and this guard over the honour of a family
is committed to the paternal relatives, whose
peculiar province it is to take care that their
stock be not exposed to any mean or de-
basing admixture, so as to subject them to
shame. — The argument of Haneefa is, that
authority to contract marriage is instituted
out of a regard to the interest of the child,
which is fully manifested by committing it
to persons whose relation to the infant is so
near as to render them interested in its
welfare.
Or the Mawla of an infant female slave. —
IF the Mawla* of an infant female slave,
having emancipated her, should contract her
in marriage, it is lawful, although she have
relations within the prohibited degrees upon
the spot, provided there be not among them
anv relations of the paternal description,
because the Mawla stands as a paternal rela-
tion with respect to her.
Or the Magistrate in defect of a natural
guardian — WHERE persons are destitute
of any natural guardian, the authority of
contracting them in marriage is vested in
the Imam or the Kazee ; because the Prophet
has, in his precept??, declared, "Persons being
destitute of guardians have a guardian in
the Sultan." "
Or the nearest guardian present jn the
absence of others — IF the parents, tor other
first natural guardians of an infant, should
be removed to such a distance as is 'termed
Gheebat-Moonkatat, it is in that case lawful
for the guardian next in degree to contract
the infant in marriage. — Ziffer and Shafei
allege that it is not lawful, because this
authority is vested in the first guardian as a
right, in order that the family may be pre-
served from the shame occasioned by the
infant forming a degrading connextion ; and
this being a* positive right, cannot be an-
nulled by ihe absence of the party, as the
law does not admit absence to be destructive
of a right ; and hejice it is that if the absent
guardian were to contract the infant in
marriage on the spot where he may at that
period happen to be, it isf lawful ; moreover,
a relation of a more distant degree is not
vested with authority in the existence of a
nearer relative, since the more distant is
--------
•Meaning the emancipator. For a full
definition of this term, see the Emancipation
of Slaves
precluded by the nearer. — The argument of
our doctors is that authority to contract
minors in marriage is instituted out of
regard to their interest, as was already
noticed ; whence it is that this authority is
not admitted over any, excepting such as are
incapable of paying the necessary attention
to their own interest ; and the regard is
not manifested in committing the business
of marriage to the nearer guardian, who is
absent, as from the exertion of his prudence
or good sense no advantage can, in that
situation, be easily derived ; the authority,
therefore, in this case, devolves to the
guardian next in degree who is present : —
moreover, as, in case the first guardian were
to die, or to income, besanc the authority,
would devolve to the next in degree, so does
it likewise in the present case. And with
respect to what Ziffer and Shafei have ad-
vanced, that "If the absent guardian were
to contract the infant in marriage on the
spot where he may at that period happen to
be, it is lawful," — the assertion is not ad-
mitted : but eve'n granting this, it is still to
be observed, that although the more distant
guardian be further removed from the infant
in point of consanguinity, yet, being upon
the spot, he is enabled to transact for the
latter, with the advantage of immediate and
local knowledge ; and vice versa of the other
guardians Thus they stand upon an equal
footing with respect to authority ; and who-
ever of them may enter into a contract of
marriage on behalf of the infant, the same,
holds good, and is not liable to be set aside.
— By the absence termed Gheebat-Moonkatat
is to be understood the guardian being re-
moved to a city out of the track of the cara-
vans, or which is not visited by the caravan
more than once in every year : some, how-
ever, have defined it to signify any distance
amounting to three days' journey .
The guardianship over a lunatic woman
rests with her son. — IF a lunate woman
have two guardians, one her son and the
other her father, the authority of disposing
of her in marriage rests with the former and
not with the latter, according to Haneefa
and Aboo Yoosaf. Mohammed says that the
father is her guardian in this rrsoect, as
feeling a more lively interest in her than the
son> — The argument of the two Elders is
that a son is prior to all others of the parental
kindred ; and the right of guardianship goes
by this right of priority, in preference to
affection thus any paternal kinsman (such
as the son of the father's brother, for in-
stance), is in this respect prior to the mater-
nal grandfathlr, although the natural affec-
tion of the latter be admitted to be the
strongest.
Section. —OfKaf at, or Equality.
Definition of Kafat.— KAFAT, in its literal
I sense, means equality.— In the language of
! the law it •ignifies the ^^1
! with a woman, in the ."v^?fi
which shall be immediately specified
40
MARRIAGE.
[VOL. I.
Equality necessary in marriage. — In mar-
riage regard is had to equality, because the
Prophet has commanded, saying. "Take ye
care that none contract women in marriage
but their proper guardians, and that they be
not so contracted by with their equals ;
and also, because the desirable ends of mar-
riage, such as cohabitation, society, and
friendship, cannot be completely enjoyed
except by persons who are each other's
equals (according to the customary estima-
tion of equality), as a woman of high rank
and family would abhor society and cohabita-
tion with a mean man ; it is requisite, there-
fore, that regard be had to equality with
respect to the husband ; that is to say, that
the husband be the equal of his wife ; but it
is not necessary that the wife be the equal of
the husband, since men are not degraded by
cohabitation with women who are their in-
feriors.— It is proper to observe, in this place,
that one reason for attending to equality
in marriage is, that regard is had to that
circumstances in confirming a marriage and
establishing its validity ; for if a woman
should match herself to a man who is her
inferior, her guardians have a right to
separate them, so as to remove the dishonour
they might otherwise sustain by it.
In point of tribe or family — EQUALITY
is regarded with respect to lineage, this being
a source of distinction among mankind ; thus
it is said, Ma Kooraish is the equal of a
Kooraish throughout all their tribes ;" that
is to say, there is no pre-eminence among
them, between Hashmees and Niflees, Teye- j
mees or Adwees ; and in like manner they i
say, "an Arab is the equal of an Arab.1'-— i
This sentiment originates in a precept of the |
Prophet to this effect ; and hence it is evident j
that there is no pre-eminence considered j
among the Kooraish tribes : and with respect
to what Imam Mohammed has advanced,
that "pre-eminence is not regarded among
the KOORAISH tribes or families, excepting
where the same is notorious, such as the
house of the KHALIFS," his intention in
this exception was merely to show that re-
gard should be had to pre-eminence in that
particular house, out of respect to the Khila-
fet, and in order to suppress rebellion or dis-
affection ; and not to say that an original
equality does not exist throughout. The
Kooraishees are the descendants of Nazir, son
of Kanaan, as is universally known.— Ibn-
Hijr has said that the Kooraishees are de-
scended of Kihr the son of Malik. The term
Kooraish is a diminutive of Kursh, which
means a body of people, or ^congregation ;
and this appellation was originally applied
to them, because they were accustomed to
trade through different cities and countries,
and after being thus scattered, used to re-
assemble at Mecca. The Arabs are those
who derive their descent from a stock an-
terior to, Nazir, or (according to Ibn Hijr)
anterior to Kihr.
TKE Binno Bahala tribe are not the equals
'Arabs of any other description whatso-
ever, they being notorious throughout Arabia
for every species of vice ; and none of those
before mentioned esteem them as upon an
equality with themselves.
In point of religion. — MAWALEES, this is
to say, Ajims, who are neither Kooraishees
nor Arabs, are the equals of each other
throughout, regard not being had among
them to lineage, but to Islam. — Thus an
Ajim whose family have been Mussulmans
for two or more g nerations is the equal of
one descended of Mussulman ancestors ; —
but one who has himself embraced the faith,
or hj and his father only, is not the equal of
an Ajim whose father and grandfather were
Mussulmans ; because a family is r.ot estab-
lished under any particular denomination
(such as Mussulman, for instance), by a retro-
spect short of the grandfather.— This is the
doctrine of Haneefa and Muhammed. Aboo
Yoosaf says that an Ajim whose father is a
Mussulman is the equal of a woman whose
father and grandfather are Mussulmans.
AN Ajim who is the first of his family pro-
fessing the faith is not the equal of a woman
whose father is a Mussulman.
In point of freedom.— EQUALITY in point
of freedom is the same as in point of Islam,
in all the circumstances above recited, be-
cause bondage is an effect of infidelity, and
the properties of meanness and turpitude are
i therein found.
i In point of character.— REGARD is to be
had to equality in piety and virtue, accord-
ing to Hineefa and Aboo Yoosaf ; and this is
approved because virtue is one of the first
principles of superiority and a woman de-
rives a degree of scandal and shame from
the profligacy of her husband, beyond what
she sustains even from that of her kindred,
—Mohammad alleges that positive equality
in point of virtue is not to be regarded, as
that is connected with religion, to which
rules regarding mere worldly matters do not
apply, excepting where the party, by any
base or degarding misconduct such as a
man exposing himself naked and intoxicated
in the public street, and so forth), may have
incurred derision and contempt.
In point of fortune — EQUALITY is to be
regarded with respect to property, by which
is understood a man being possessed of a
sufficiency to discharge the dower and pro-
vide maintenance ; because if he is unable
to do both, or either of these, he is not the
equal of any woman; as the dower is a con-
sideration for the carnal use of the woman,
the payment of which is necessary of course ;
and upon the provision of a support to the
wife depends the permanency of the matri-
monial connextion ; and this is therefore in-
dispensable a fortiori —This, according to
some, is found in the ability to support a
wife for one month only ; but others say for
ayeu.r'u-By a -man P°»«r«ng sufficient to
enable him to discharge the dower, is under-
stood his ability to pay down that proportion
of it which it is customary to give immedi-
ately upon the marriage, and which is termed
BOOR 1L— CHAP. II.]
MARRIAGE.
41
Moajil, or prompt ; the remainder, termed
the Mowjil, or deferred, it is not usual to pay
until a future season ; and hence it is that
the ability to pay that part of the dower is
not made a condition. — Aboo Yoosaf teaches
that regard is to be had only to the man's
ability to support his wife, and not to the
discharge of the dower, because the latter is
of a nature to admit of delay in the pay-
ment, but not the former; and a man is
supposed to be sufficiently enabled to pay the
dower where his father is in good circumstan-
ces. According to the doctrine of Haneefa
and Mohammed, however, the fortune of the
man is to be considered in general (without
regard to any particular ability), insomuch
that a man who may even be qualified both
to pay the dower and to provide subsistence,
yet may not be held the equal of a woman
possessed of a large property; since men
consider wealth as conferring superiority,
and poverty as inducing contempt. Aboo
Yoosaf, on the other hand, maintains that
wealth is not to be regarded in this respect,
since it is not a thing of a stable or perma-
nent nature, as propercy may be acquired
in the morning and lost before night
And in point of profession. — EQUALITY is
to be regarded in trade or profession, accord-
ing to Aboo Yoosaf and Mohammed. — There
are two opinions recorded of Haneefa upon
this point ; and there is also an opinion re-
lated of Aboo Yoosaf ; that the profession is
not to be regarded, unless where it is of such
a degrading nature as to oppose an insur-
mountable objection ; such, for instance, as
barbers, weavers, tanners, or other workers
in leather, and scavengers, who are not the
equals of merchants, perfumers, druggists or
bankers. -—The principle upon which regard
is to be had to trade or professon is, that men
assume to themsehesa certain cpnsequence
from the respectability of their callings,
whereas a degree of contempt is annexted to
them on account of the meanness thereof r—
13ut a reason, on the other hand, why trade
or profession should not be regaded is, that
these are not absolute upon a man, since he
is at liberty to leave a mean profession for
one of a more honourable nature.
Case of a unman contracting herself on
an inadequate dower.— If a woman contract
herselt in marriage, consenting to receive a
dower of much smaller value than her proper
dower,* the guardians have a right to oppose
it, until her busband shall agree either to
give her a complete proper dower, or to
separate from him.— This is according to
Haneefa. —-The two disciples maintain that
the guardians are possessed of any such
authority ; and their argument is, that what-
ever the dower may be above ten Dirms is
tne right of the woman, and no person is to
be opposed in relinquishing that which is her
own as where a woman, for instance, chooses
to relinquish a part 8f the dower, after the
chapter.
d°w*ris
amount of it has been specifically stipulated.
— To this Haneefa replies, that the guardians
assume a certain degree of respect and con-
sideration from the magnitude of shame to
and its smallness is an occasion of shame to
them ; wherefore regard is had to that, as
well as to equality : contrary to the case of a
woman relinquishing her claim to any part
of her dower after it has been specifically
stipulated, because no disgrace falls upon the
guardians from such dereliction.
Case of a father contracting his infant child
on a disproportionate dower — IF a father
should contract in marriage his infant daugh-
ter, agreeing to a very inadequate dower; or,
if he should contract his i. fant son, engaging
for an extravagant dower, yet this is legal and
valid with respect to them. — This, however,
is not lawful to any excepting a father or
grandfather, according to all the doctors —
Tl e two disciples have said that diminution
or excess in the dower is illegal only where
it is very apparent; that is to say, a contract
of marriage, involving any very dispropor-
tionate excess or deficiency of dower, is not
held by them to be legal; because the autho-
rity of a father or grandfather to contract
ii.fants in marriage is founded upon the
supposition of their regard tor the interest
of those infants, and therefore where this
regard does not appear, the contract is null;
and in agreeing for a deficient dower on
behalf of a female infant; or for an excessive
one on behalf of a male, no regard to their
interest whatever is manifested.— Similar
to this is a case of purchase or sale ; that is
to say, if a guardian were, on behalf of an
infant, to sell a thing for less than its value,
or to buy a thing for more than it is worth,
at an excessive disproportion, such sale or
purchase would be invalid ; and so also in
marriage: — and hence it is that no person is
empowered, with respect to deficient or ex-
cessive dowers, excepting a father or grand-
father — To this Haneefa replies, that the
law here rescs solely upon whatever affords
an argument of tenderness for the infant,
and that is found in nearness of affinity ;
I snd in marriage there are many considers-
| tions of more weight and moment than the
i dower, whereas, in transactions which con*
cern property, that only is a consideration ;
and where that which is the end appears to
be defeated, their authority is done away. —
But with respect to other than the father and
grandfather, no regard is had to affinity as
an argument of tenderness in the persent case,
since that exists in them in smaller degree.
A father may contract his infant child to a
slave.— IF a man Contract his infant daughter
to a slave, or his infant son to a female slave,
it is lawful —The compiler of the Hedaya
observes that this is according to Haneefa,
who argues that the father's neglect of
equality in this instance must be fcupposdd
to arise from some other considerations of»
greater weight, wherefore the said contract
of marriage is lawful ; but i» it should ap-
pear that the parent has adpoted suth a
42
MARRIAGE.
[VOL. I.
match without any view to a particular
advantage, the contract is in that case null :
and the two Elders coincide with Haneefa
in this opinion. — According to the two dis-
ciples the contract is illegal, because it in-
volves a twofold disadvantage with respect
to the infant;— a want of equality in the
first instance; and secondly, a want of resi-
dence, as a slave cannot be or remain any-
where but with the owner's consent.
Section. — Of a Power of Agency to
contract Marriage.
Agents in marriage, and their powers. —
AGENTS in matrimony are persons employed
and authorized by the parties concerned to
enter into contracts of marriage on their be-
half ; and the power so delegated is termed
Wikalit-ba-Nikkah.
IT is lawful for a nephew to contract the
daughter of his uncle in marriage with him-
8Clf t — Ziffer alleges that this is unlawful.
IF a woman give authority to a man to
contract her in marriage with himself, and
he accordingly execute the contract in the
presence of two witnesses «it is lawful . Ziffer
and Shafei affirm that this is illegal, because
no person is competent to transfer and make
himself the proprietor of that which is trans-
ferred ; as in a case of sale, for instance,
where, if the proprietor constitute a person
his agent of sale with respect to any par-
ticular property, and the agent sell the same
to himself, both the agency and the sale are
void, no man being competent to act as the
transferrer of property, and to become him-
self the master of that property. — Shafei,
however, alleges that a guardian may law-
fully contract his word to f.himself on the
plea of necessity, since, if he were not al-
lowed this privilege, she might never be
married ; but a mere agent has no such plea
because in this case her guardian will con-
tract her.* — Our doctors, on the other hand,
argue that an agent in matrimony is merely
a negotiator, and the obligations of the con-
tract do not, in any respect, affect the con-
tractor of a marriage ; neither would any
objections which may arise apply to the
simple negotiation, but to the rights and
obligations which it involves: contrary to
the case of sale, as cited by Ziffer and Shafei,
because there the agent appears to be acting
not merely as a negotiator, but also as a
principal, in the contract of sale, and is con-
sequently affected by its obligations. It may
be remarked in this place, that as the con-
tractor of a marriage is merely a negotiator,
«o where a person becomes empowered to
contract on both sides, his single declaration
"I have contracted," comprahends both the
declaration and the acceptance, and conse-
?uently there is in this instance no occasion
or two separate sentences, t
* This proceeds upon a supposition that
tne guardian is not within the prohibited
degrees,'* and that no other proper person
•f See the beginning of this Book.
Cases of a contract executed by on un-
authorized person. — IF a man should contract
in marriage the slave of another without the
owner's consent , and validity of the deed is
suspended upon the will of the Owner; if he
approve, it is lawful ; if he disapprove, it is
null.
IN the same manner, if a man contract a
woman in marriage without her knowledge
in the presence of two witnesses, or if a
woman contract a man in marriage without
his consent, the validity is suspended upon
the same cirumstance. — This is an opinion
of our doctors ; because they hold that in a
case of a contract entered into by a Fazoolce
or unauthorized person, and to which there
exists any person who has a right assent,
the same stands as a complete contract, the
validity of which is suspended upon that
person's approbation. — Shafei maintains that
all acts whatever of a Fazoolee are null ;
because the use of a contract is for the pur-
pose of establishing its effect, like that of
sale, for instance, which is used for the pur-
pose of establishing a right of property, and
that of marriage for the purpose of estab-
lishing a right of enjoyment ; and Fazoolee
is incapable of establishing the effect, on
account of his want of authority ; wherefore
the act of the Fazoolee is nugatory. — The
argument of our doctors is, that the founda-
tion of the contract, namely, declaration and
acceptance, has proceeded from a competent
person (that is, from one who is sane and
adult), and has reference to its proper sub-
ject ; neither can any injury be sustained if
the contract be executed, inasmuch as there
exists, in respect to it, a person who has a
right of assent, and who, if he think proper,
will signify such assent, and give the con-
tract force, or, if otherwise, will reject it :
and in reply to what is urged by Shafei, we
observe that the effect of a contract is some-
times defeired to a period subsequent to the
time or date of the contract ; as in a contract
of sale under a condition of option, where
possession is deterred until such time as the
condition of option drops.
IF an urauthorized person say to two per-
sons, "Be ye witness that I have married
such a woman who is absent;" and after-
wards the woman should hear of it, and con-
sent, yet the marriage is void : but if, on the
unauthorized person speaking as above, a
third person were to say, "I have married
that woman to that man," and the woman on
hearing it should consent, the marriage is
lawful. And, in like manner, if a woman
should say "Be ye witness that I have con-
tracted myself to such a man who is absent,"
and the man should afterwards hear of it
and consent, the marriage would, notwith-
standing, be void ; but if, on the woman thus
spe&king, a bystander were to say, "Be ye
witness that I give consent on behalf of such
a person ;" and the man, on hearing of it,
should give his consent, the marriage is valid.
This is the doctrine of Haneefa. Aboo Yoo-
saf alleges that if a woman were to say, "I
BOOK II.— CHAP. II.]
MARRIAGE.
have contracted myself to such a man" (he
being absent), and the man, on afterwards
receiving intelligence of this, were to declare
his assent, the marriage is valid. In short,
according to Haneefa and Mohammed, one
person is not competent to act as a Fazoolee
in a contract of marriage, either on behalf of
both parties, or as a Fazoolee on one side,
and a principal on the other ; whereas Aboo
Yoosaf holds a contrary opinion. But, if
two unauthorized persons enter into a con-
tract of marriage on behalf of both parties, —
that is to say, one on the part of the man.
and the other on that of the woman, — or, if
the persons enter into such a contract, one as
a Fazoolee, and the other as a principal, — it
is lawful, with our doctors (Haneefa, Mo-
hammed, and Aboo Yoosaf). The argument
of Aboo Yoosaf, in the case before stated, is
that one person may in marriage stand as
two, and the declaration of that person may
be considered as two declarations* (whence
it is that if one person be authorized by both
parties, the marriage is effected by his single
declaration) ; and, in the case of an unautho-
rized person, the only difference is, that the
validity of the contract remains suspended
upon the ultimate consent of the parties, as
in a case of Khoola, where if a man were to
declare that ."he had repudiated his wife by
the form of Khoola f< r such a considera-
tion" (the wife being absent), and she were
afterwards to receive intelligence of this, and
to assent, the Khoola is lawful ; and so also,
in a case of divorce or of manumission, where
if a man we*e to declare that he had divorced
his wife for one thousand Dirms (she being
absent), and intelligence of this reach her,
and she consent,— or, a man declare that
"he has emancipated such an one, his slave,
for a recompense of one thousand Dirms"
(the slave being absent), and the latter,
hearing of this assent, the proceeding is law-
ful.— To this Haneefa and Mohammad rep^y
that, in the case before recited, the decl|ra-
tion of the unauthorized person, "I have con-
tracted such a woman to such a man," or,
"I have married such a woman," amounts
to a contract on one part only, which is not
valid, wherefore the legality of it is not sus-
pended upon the consent of the parties, as
its completion rests on the reply, which is
not approved unless it proceed from a person
present in the assembly or company where
the contract is maJe, and during the con-
tinuance of that company ; and, like a sale,
it is incapable of being protracted to any
person, on the contrary, acts on the autho-
rity of both parties, the contract is valid,
because here his declaration applies equally
to both ; and where the contract is entered
into by two unauthorised persons (acting
for, or, as it were, representing the respec-
•That is to say, "as the proposal and the
acceptance," or, in other words, "as the
declaration and the consent."
tive parties), it is complete, as it here possesses
all the eesential properties of contract ; and so
also in cases of Khoola or of divorce, or manu-
mission for a compensation (as cited by Aboo
Yoosaf), because in such instances the decla-
ration stands as a conditional vow on the
part of the husband or the master, so as to be
binding upon him, and from which he can-
not with propriety retract ; and hence the
engagement is completed solely by him.
Cases of the matrimonial agent exceeding
or acting contrary to his commission. — Ira
man commission another, as his agent, to pro-
cure him a wife, and the agent should con-
tract him to two women, by one declaration,*
his marriage is not valid with either, for,
being unlawful with both, on account of iu
contradicting the tenor of the commission
with whi:h he was charged, and unestab-
lished «vith either, on account of unspecified
priority, a separation ,from both must neces-
sarily ensue.
IF a person commission another, as his
agent, to contract "him in marriage to a
woman, and the agent should contract him
to a female slave the property of some third
person, it is valid (according to Haneefa),
because here the agent appears to have acted
in strict conformity with the tenor of his
commission, as the term woman is general,
applying equally to the whole sex, to slaves
as well as to others; nor can there be any
doubt, since the case supposes the slave to be
the property not of the agent, but of some
third person ; — neither is there any impro-
priety in it as the case supposes the autho-
rizer not to be previously marr ed to a free
woman. — The two disciples allege that a
marriage thus made by an agent is illegal,
unless it be contracted with a woman who is
the equal of the constituent ; because, by the
term woman, generally expressed, is to be
understood such as it is customary to wed, and
men commonly marry their equals ; the term
woman, therefore, thus indefinitely expressed,
means such a woman as it is usual for such a
man to marry. — To this Aboo Haneefa replies,
that in custom there is an indefinite latitude,
it being common for men, even of consider-
ably rank, to marry female slaves, as well as
free women who are their equals ; and such
being th» case, the agent is not restricted to
any particular description of women, as the
term woman must be taken generally ; and
even admitting that custom does thus prevail
in marriage, it may be replied that custom is
of two different descriptions, one applying to
words (as Daba, for instance, a term apply-
ing to beasts in general, but which custom
hath restricted to a horse) ; and the other to
actions (such, for instance, as mer/clothing
themselves in new garments on the festival
of Yd) ; now, in the present case, custom
applies to facts, and not to terms, and there-
fore does not admit the construction of being
restrictive. — It will hereafter be shown, in
•That is to say, by one contract.
44
MARRIAGE.
[VOL/I.*
treating of Agency, that the two doctors re-
gard equality, in the present case, upon an-
other principle, to wit, that a man not being
necessitated to marry any woman, of course
his desire of being married by an agent re-
lates only to a woman who is his equal*
CHAFER III.
OF THE MIHR OR DOWER.
Marriage without a dower is valid. — A
MARRIAGE is valid, although no mention be
made of the dower by the contracting parties,
because the term Nikkah, in its literal sense,
signifies a contract of union, which is fully
accomplished by the junction of a man and
woman ; moreover, the payment of dower is
enjoined by the law, merely as a token of re-
spect for its object (the man), wherefore
the mention of it is not absolutely essential
to the validity of a marriage : — and, for the
same reason, a marriage is also valid, al-
though the man were to engage in the con-
tract on the special condition that there
should be no dower : but this is contrary to
the doctrine of Malik.
Ten Dirms the lowest legal dower.— THE.
smallest dower is ten Dirms* — Shafei says
that whatever sum may be lawful as the
price of a commodity in purchase and sale, is
lawful as a dower, because the dower is the
right of the woman, and consequently it must
depend upon herself to determine the amount
of it. The arguments ofour doctors in this
case are twofold ; FIRST, a precept of the Pro-
phet, which expressly declares "There is no
dower under ten Dirms," SECONDLY, the law
Dirms, as she had agreed to accept of less
than ten ; neither is it proper to take an ex-
ample, in this case, from that in which no
dower whatever has been named, because it
may sometimes happen that a woman may
grant the right of possession without any
return, and out of pure love ; but no woman
will agree to a trifling return. And here, if
the husband were to divorce the wife before
consummation, her due on account of the
dower is five Dirms, according to our three
doctors. Ziffer holds that she is in this case
entitled only to a Matat, or present, the same
as would be due where no dower had been
named.-— The meaning of the term Matat
shall be hereafter fully explained.
The wife entitled to her whole dower-upon
the consummation of the marriage or the
death of the husband. — IF a person specify
a dower of ten or more Dirms, and should
afterwards consummate his marriage, or be
removed by death, his wife, in either case,
has a claim to the whole of the dower speci-
fied, because, by consummation, the delivery
of the return for the dower, namely, the
Booza, or woman's person,* is established,
and therein is confirmed the right to the con-
sideration, namely, the dower ; and, on the
other hand, by the decease of the husband
enjoins a dower with a view to manifest re- , * S"/_L
spect for the wife, wherefore it must be iixed, ' YE HAVE
in its smallest degree, at such a sum as may
be respectable ; and this is ten Dirms, that
being the lowest amount of a theft inducing
the punishment of amputation of a limb,
which shows that such sum is the least that
can be regarded in an important or respect-
able light.
Case of a dower often Dirms. — IF a man
assign, as a dower, a sum under ten Dirms,
yet his wife sfrall receive the whole ten Diimns,
according to our doctors. — Ziffer alleges that
she shall receive a Mihr-Misl, or proper
dower ; because where the sum specified is
so small as not to bear the construction of a
dower, it is the same as if none whatever had
been named. — The argument ofour doctors
is, that the impropriety of naming , a stipu-
lating so small a sum is on account of the
injunction of the law, which cannot be ful-
filled with less than ten Dirms, and the
worrjan will certainly be satisfied with ten
thing becomes established and confirmed by
its completion, and consequently is so with
respect to all its effects.
And to one-half, upon divorce before con-
summation.— IF the husband, in the case now
stated, were to divorce- his wife before con-
summation, or Khalwas Saheeh.f she in this
case, receives half her specified dower ; Gou
having command, saying, "!F YE DIVORCE
THEM BEFORE YE HAVE TOUCHED THEM, AND
HAVE ALREADY SETTLED A DOWER ON WHAT
YE SHALL PAY THEM ONE-HALF OF WHAT
*The<value of the Dirm is very uncertain.
Tfen Dirms, according to one account, make
aboilc six shillings and eightpence sterling.
OBJICTION.— *ft would here appear that the
whole do^er should of right drop, because
the object of the contract reverts to the wo-
man untouched, the same as in sale, where
the whole price drops, if the buyer and seller
break off the contract.
REPLY. — There are two analogical conclu-
sions applicable to this subject ; FIRST, what
is recited in the above objection : SECONDLY
it would appear that the whole dower is due,
because the husband did not make use of his
possession, but suffered it to pass from him
untouched of his own choice ; as in sale,
where the whole price of a purchase is due,
if the purchaser suffer the goods to perish in
the hands of the seller ; and these two con-
clusions directly contradicting each other,
they are both abandoned, and we adhere to
the sacred text as above.— This case supposes
*LiteraIIy, Genitale arvum Mulieris.
tRetirement, solus cum sola, where there
is no legal or natural impedimens to the corn-
mission of the carnal act. It is elsewhere
translated, complete retirement.
BOOK. II.— CHAP. III.]
MARRIAGE.
the divorce to take place before Khalwat, or
retirement, because that with a wife is held
by our doctors to amount to carnal know-
ledge, as shall be hereafter explained.
Where no dower is stipulated in the con-
tract, the wife receives her proper dower. — IP
a man marry a woman without specifying
any dower, or on the express stipulation
that she shall not have a dower, and he
either have carnal connexion with her, or
die, she is in that case entitled to her Mihr-
Misl, or proper dower — Shafei alleges that
where the husband dies, nothing whatever
remains due : but many of his disciples and
followers admit that the woman's proper
dower is due in case of carnal connexion.
The argument of Shafei is. that the dower is
purely a right of the woman ; whence it is
in her power to relinquish it a priori, for the
same reason as she is at liberty to remit it
afterwards. — To this our' doctors reply that
in the dower are involved rights of three
different descriptions ; the FIRST, the right
of .the law, which is that it shall not consist
of less than ten Dirms (as has been already
said) ; the SECOND, the right of the guardians,
which is that it shall not be short of the
woman's proper dower ; and the THIRD, the
right of the woman, which is that it shall
become her property. Now the light of the
law and the right of the guardians are to be
regarded in the execution of the contract,
but not its continuance ; consequently, in
the continuance, the dower is the right of the
woman solely ; and hence it is that she is
empowered to give it up or relinquish it in
the continuance of the contract, but not a
priori.
Or a present, in case of divorce before con-
sumrnaticn — IF a man marry a woman with-
out any specification of a dower, or on con-
dition of there being no dower, and divorce
her before carnal connexion, the vioman in
this case receives a Matat, or present ; GOD
having commanded, saying, "Givs HE* A
PRESENT, THE RICH ACCORDING TO HIS
WEALTH, AND THE POOR ACCORDING TO HIS
POVERTY, :" thus a present is incumbent upon
the husband on the authority of the sacred j
writings: — but this is contrary to the doctrine
of Malik. — The Matat, or present, here men-
tioned, is to consist of three pieces of dress,
composed of such materials as are suitable to
the woman to whom it is given ; and these
are, the Dirra, or shift ; the Khoomar, or
veil ; and the Mulhaffet, or outer garment.
The quantity is determined at three pieces of
dress, on the authority of Aysha and Ibn
Abbas.— From the restriction of the present
to such materials as arc suitable to the wo -
mar, it would appear that, in the adjust-
ment, regard should be had to the woman's
state and condition (and such is the doctrine
of Koorokhee), because it is a sort of substi-
tute for the woman's proper dower : — but the
more approved doctrine on this point is, that
regard-be had solely to the state and con-
dition of the husband, because of the words
of the sacred text before quoted,— "THE
RICH ACCORDING TO HIS WEALTH, AND THE
POOR ACCORDING TO HIS POVERTY. — It is to
be remarked, that the present must not ex-
ceed in value one-half of the woman's proper
dower, or nor be worth less than five Dirms :
the same is recorded in the Mabsoot.
Case of dower specified after marriage.
— IF a man marry a woman without naming
any dower, and the parties should afterwards
agree to a dower, and specify its amount,
such dower goes to the woman, if the hus-
band either consummate the marriage or die ;
but if he divorce her before consummation,
she receives only a present. With Aboo
Yoosaf she, in this case, receives one-half of
the dower sp.ciiied (and such also is the
opinion of Shafei), because here the dower
nas been made obligatory and specifically
determined, and consequently one-balf is due
according to the words of the text, "YE
SHALL PAY THEM ONE-HALF OF WHAT YE
HAVE SETTLED. " The argument of our doc-
tors is that, in the ^present case, the speci-
fication of the dower indentifies a thing which
was due on account of the contract, to wit,
the woman's proper dower, and as this is
incapable of subdivision, consequently that
which is its substitute cannot be halved. —
With respect to the text above quoted, it is
to be regarded as applying solely to what
has been agreed to and specified at the period
of the contract : this being agreeable to what
is customary.
Case of an addition made to the dower
after marriage. — IF a man make any addi-
tion to the dower in behalf of his wife sub-
sequent to the ^contract, such addition is
binding upon him. — This is contrary to the
doctrine of Ziffer, as shall be demonstrated
in treating of an increase of price in a con-
tract of sale — But although such after-
addition to the dower be thus approved, yet
it drops in con«»equence of divorce before con-
summation.— According to an opinion of
Aboo Yoosaf, the woman is entitled to the
half of the additional together w/ith that of
the original dower. — The cause of this dif-
ference of opinion is that, with Haneefa and
Mohammed, nothing is halved but what has
been rendered obligatory, and specifically
determined ; whereas Aboo Yoosaf holds
whatever is engaged for after the contract to
be the same as that which is made obligatory
in the contract, and therefore considers it as
subject to the same rule.
A wife may rzmit the whole dower. — Ira
woman exonerate her husband from any part,
or even from the whole, of the dower, it is
approved ; because after the execution of
the contract, it is her sole right (as was al-
ready explained), and the case supposes her
dereliction of it to take place at a subsequent
period.
Case of Khalwat-Saheeh or retirement. —
If a man retire with his wife, and there be
no legal or natural obstruction to the Com-
mission of the carnal act, and he afterwards
divorce her, the whole dower in this ca'se
goes to her. — Shafei maintains that she is
46
MARRIAGE.
[VOL. I.
here to receive no more than her half dower,
because the husband cannot obtain posses-
sion of the object of the contract but by
actual coition ; and the right to the dower is
not corroborated and confirmed without en-
joyment.— The argument of our doctors is,
that the woman has completed her part of
the contract, by delivering up her person,
and by removing all obstructions, which is
the extent of her ability ; her right to the
recompense is therefore confirmed and corro-
borated ; in the same manner as in a case of
sale, where, if the seller have offered delivery
of the goods sold, and there be nothing to
obstruct seisin on the part of the purchaser,
and the latter neglect to make seisin, he is
considered as having made seisin, and the
purchase is afterwards as a trust in the hands
of the seller, and the whole of the price is
obligatory upon the purchaser.
Circumstances in which retirement does not
imply consummation. — IF a man retire with
his wife whilst one of them is^sick, or fasting
in the month of Ramzan, or in the Ihram of
a pilgrimage, whether obligatory* or volun-
tary, or of a visitation at the shrine of the
Prophet (termed an Amrit), or whilst the
woman is in her courses — this is not regarded
as a Khalwat-Saheeh, or complete retirement,
insomuch, that if the man were to divorce his
wife after such a retirement, the woman is
entitled to her half dower only ; because all
the above circumstances are bars to the car-
nal act ; — sickness, from the weakness and
imbecility with which it is attended, or from
its rendering the commission of the carnal act
injurious to one or the other of the parties ;
— and fasting in Ramzan because it would
induce upon the party a necessity of expia-
tion and atonement ; — and pilgrimage, or
visitation, because it would induce a necessity
of atonement by sacrifice ; — and the woman's
courses, because they oppose an obstruction
both natural and legal.
Exception. — BUT if one of the parties be
observing a Nifl [voluntary] fast only, the
woman is entitled to her whole dower,
because the breach of such a fast is a matter
of indifference : a fast of atonement, or in
consequence of a vow, is the same as a
voluntary fast in this respect, and for the
same reason.
Case of retirment of an eunuch. — IF a
Ma j boob eunuch retire with his wife, and
afterwards divorce her, she is entitled to her
whole dower, according to Haneefa. — The two
disciples maintain that the half dower only
goes to her, on account that a Majboob is
still more incapacitated than a Sick person :
contrary to the case of an Ineen (or one
naturally impotent), because the point of
law rests upon the existence of the instru-
ment of generation, which is there found,
All Mussulmans are required, once in
their lives, to make a pilgrimage to Mecca,
which is^ermed Hidj-Farz, or ordailed pil-
grirrage.
but not in the former case. — Haneefa on the
other hand, argues, that all which is due on
the part of the woman is the delivery of her
person (by admitting the husband to feel and
touch her), and this being, to the extent of
her ability, completely performed, it follows
that the consideration is completely due to
her.
IT is incumbent upon the woman to observe
an Edit (or appointed term of probation),
after the divorce, in all the cases here recited,
for the sake of caution, on a principle of
propriety, from the apprehension or possi-
bility of her womb being occupied by seed.
The Edit is, moreover, a right of the law
and of the foetus ; and credit is not to be
given to the parties that they have not com-
mitted the carnal act, because this fin pre-
cluding the necessity of Edit) ^ would amount
to an extinction of rights (as above specified)
distinct and separate from these of the par-
ties : but it is otherwise with the dower,
because that is a matter of property, the
right ip which cannot be decided upon
principles of caution (like the Edit), nor
under any circumstance admitting of doubt ;
the dower, therefore, is not due, where
retirement is not of the description of
Khalwat-Saheeh. Kadooree, in his commen-
tary upon his own work, has observed that,
if the obstruction to the carnal act be merely
of a legal nature (such as fasting), the ob-
servance of Edit is incumbent, because here
the natural ability to the performance of the
act is supposed : but if the obstruction be of
a positive nature (such as sickness or in-
fancy), the Edit is not requisite, because the
ability to perform the act does not here
exist.
Case in which the present to the wife is
laudable, or incumbent. — IT is laudable to
bestow a Matat, or present, upon every
woman divorced by her husband, excepting
two descriptions of woman, namely, one whose
dower, has been stipulated, and whose hus-
band divorce her before consummation —
and one whose dower has not been stipulated
and who is also divorced before consum-
mation ; for in their behalf a present is
not merely laudable, but incumbent. Shafci
says, that a present is incumbent in behalf of
every divorced woman, excepting one whose
dower has been stipulated, and who is
divorced before consummation ; because the
present is made incumbent in the way of a
gratuity, or compensatory gift, from the hus-
band, on account of his having thrown the
woman into a forlorn state by his separation
from her ; but, in the excepted instance, the
half dower is a substitute for the present, as
divorce is here a dissolution of the contract,
and the present need not be bestowed re-
peatedly. The argument of our doctors is,
that the present is a substitute for the proper
dower in the case of a resigned woman (that
is, a woman who resigns herself to her hus-
band without a dower), on account that,
as the proper dower drops, the present be-
comes incumbent ; because, in a contract of
BOOK II.— CHAP. III.]
MARRIAGE
marriage, a return is essential : the present,
therefore, is a substitute for the proper dower
and such being the case, it must not be re-
quired in addition either of the whole dower,
which is the original thing, or to any part of
it : whence the present is not incumbent
«vhere any part of the dower in due. As to
what Shafei advances, that " the pesent is
made incumbent in the way of a gratuity,
or compensatory gift, from the husband, on
account of his having thrown the woman
into a forlorn state by his separation from
her," — we reply, that this act of his does
not amount to an offence, as the husband
is privileged by the law to do so, wherefore
no recompense is due from him on that
account ; and hence it is that the present is |
regarded merely as respectful and laudable.
Case of a reciprocal bargain between two
contractors. — IF a person contract his
daughter, or his sister in marriage to an-
other, on the condition of the other bestowing
a sister or daughter in marriage upon him, so
as that such contract shall stand as a return
for the other, respectively, both the contracts
are lawful. Shafei maintains that both the
contracts are null, as they make one half of
the woman's person, reciprocally, a dower,
and the other half the subject of marriage ;
because, where the person marries his j
daughter to the other, and aho constitutes
her the dower for the other's daughter, it
follows that the daughter's person* is divided
between the other person and his daughter. —
one half to that person, as husband, in virtue
of the marriage, and the other half to his
daughter as her dower ; and as the matri-
monial possession, or propriety, is incapable
of being participate (since it is ordained as j
a complete enjoyment, and not as a partici- |
pated one), it follows that the bargain is
nugatory. To this our doctors reply, that
the contract or has named, as a dower, a
thing incapable of being so (since a woman's
person, in the sense it here bears, is in-
ca^able of being the property of a \voman) ;
— but yet the contract holds good, and a
Mihr Misl, or proper dower, remains due [to
each of the women], the same as where wine
or a hog are assigned as a dower — With
respect to what Shafei urges, that "the
matrimonial propriety is incapable of being
participated," — it is admitted ; but this par-
ticipation is not induced in the present case,
as the person of either of the daughters is
not made the right of the other daughter in
virtue of the contract.
Case of marriage on a condition of service
fiom the husband. — IF a free man marry a
woman, on the condition, in return of serv-
ing her for a stated time (a year, for in —
stance), or of teaching her the KORAN, yet her
proper dower is incumbent upon him not-
withstanding, according to Haneefa and
A boo Yoosaf, Mohammad has said that she
is, in this case, to feceive a sum amounting
to the estimated value of his service for one
*Arab. Booza, t e.t Genitale Mullens.
year. But if a slave, by his owner's consent,
marry a woman on the same terms, it ie law-
ful and the woman is entitled to the stipu-
lated service only. Shafei is of opinion thai
the woman is entitled merely to the service
whatever may be lawfully received as a fixed
stipulated in either of these cases ; because
return, is capable of constituting a dower,
since a mutual exchange may be thereby
effected, and consequently the case is the
same as if the man had married the woman
on condition of a stated service to be per-
formed by another person, or on a stipula-
tion of himself watching her flocks for a
stated period. The arguments of our doctors,
on this point, are twofold : — FIRST, the pos-
session of a woman's person is not to be
sought (that is to say, to desire, it is not
lawful), except in lieu of property ; and
teaching the Koran is not property ; neither
does usufruct constitute property (according
to the sentiments of our doctors), because
that is not substant;al or permanent, whereas
properly is a thing of a permanent nature,
and what constitutes actual wealth ; service
therefore, ,not being property, to seek the
possession, of a woman's person, in return
for the services of a freeman, in unlawful : —
contrary to a case where a slave obtains a
woman in marriage on the condition of his
serving her, since here possession is sought
for that which is actual property, the ser-
vice of a slave being considered as such
because this comprehends a surrender or
delivery of the slave's person, and the
person of a slave is actual property, and of
course the usufruct thereof ; wherefore it is
analogous to»the bestowing of the slave him-
self a? a dower : but with a husband who is
free this cannot be the case : SECONDLY, it is
not lawful that a woman should be in a
situation to exact the service of her husband
who is a freeman, as this would amount to a
reversal of their appointed stations, for one
of the requisites of marriage is, that the
woman be a* a servant, and the man as the
person served ; but if the service of the
husband to the wife were to constiute her
dower, it would follow that the husband is
as the servant and the wife as the served:
and this being a violation of the requisites
of marriage, is therefore illegal ; but it is
otherwise with the service stipulated to be
performed by another free person, with that
person's consent, as this offers no violence to
the requisites of the contract ; and so also
in the case of service of a slave, because the
service performed by a slave to his wife is,
in fact performed to his master, by whose
consent it is that he undertakes it ; and the
same with the case of tending flocks, because
this is a service of a permanent nature, and
admitted to be performed for wives, and
therefore does not violate the requisi es of
marriage ; for the service of the husband to
his wife, as a dower, is prohibited only as Jt
may be degrading to the former : *but the
tending of flocks is not a degrading office.
Mohammed, according to his tenets, holtis as;
48
MARRIAGE.
[VoL. I
was already observed) that the woman is, in
thU case, entitled to receive a sum amounting,
to this estimated value of the service, because
he maintains that what was stipulated (to
wit, the service) is properly, but of such a
nature as it is not in the husband's power to
make delivery of, since by such an act he
would violate the requisites of marriage ;
the case, therefore, is the same as if a man
were to marry a woman, assigning, as a
dower, a slave, the property of another, in
which case he would have to pay the woman
the value of such slave, Haneefa and Aboo
Yoosaf, on the other hand, hold that the
woman is entitled to a proper dower ; be-
cause they maintained that the service here
stipulated is not property, as a woman can-
not legally exact service of her husband,
being a freeman, in any situation whatever
lest a reversal of stations should be induced,
as was just observed ; the naming, therefore,
of service as a dower, is the same as naming
wine, or a hog ; for, not being capable of
legal delivery, it is not a subject of apprecia-
tion ; and such being the case, resourse is
had to the original rule in defect of any
dower, and this dictates a proper dower.
Cases of a wife remitting or returning the
dower to her hushand, either wholly or in
part. — IF a man marry a woman on a dower
of one thousand Dirms, and the woman make
seisin of the said thousand, and then present
the same to him, and he take possession of
such gift, and afterwards divorce her before
consummation, the husband, in this case, has
a claim upon his wife for five hunderd Dirms,
because he is not considered, in ^iw, as hav-
ing received, in the form of the gift, that
identical thing which becomes obligatory
upon his wife in consequence of divorce be-
fore consummation, since money is incapable
of identification either in the fulfilment or
the annulment of contracts. So also, if the
dower consist not of money, but of articles of
weight or measurement of capacity, as iron
or copper. — But if the wife were to make a
gift to her husband of the thousand Dirms,
without having herself been in possession of
the same,* and he were afterwards to divorce
her before consummation, in this case neither
party has any claim vhatever upon the other.
This proceeds upon a favourable construc-
tion ; for analogy would suggest that the
husband should receive from his wife the
amount of half the dower, because the whole
dower remains untouched with the husband
in consequence of the gift, which amount to
a discharge, but the wife do^s not appear to
be discharged from wh?t becomes obligatory
upon her in consequence of divorce before
consummation. — The reason for a more fa-
vourable construction of the law upon this
point is. that the identical thing which be-
comes obligatory upon the wife in favour of
the Icusband, in consequence of divorce before
"That is to say, relinquishes her right to
to it.
consummation, has come to him, in his being
discharged from half the dower (through the
wife's gift), and the end being thus obatined,
any difference in the manner in which it is
obtained will not be regarded. — that is to say.
the end was, that the husband should recover
half the dower after divorce before consum-
mation, and that end has been obtained, not
indeed through divorce, but through antece-
dent gift, which answers the same purpose.
IP a man marry a woman on a dower of one
thousand Dirms and the woman make seisin
of five hunderd Dirms, and afterwards make
a gift to her husband of the whole thousand,
— as well of the portion in her possession, as
of that which she has not received, — or of the
latter only, — and the husband afterwards di-
vorce her before consummation, neither party
in this case, has an/ claim upon the other,
according to Haneefa. — The two disciples
maintain that the husband has, in this case,
a claim upon the wife for one half of that
proportion of which she had possession ; be-
cause they conceive of a part from the whole ;
— that is to say, if the wife were to make a
gift of the whole dower to her husband, with-
out having herself made previous seisin of
any part thereof, the husband has no claim
to resume anytning out of it ; — anrl, on the
contrary, if she were first to make seisin of
the dower, and then to make a gift of the same
to her husband, he would have a claim of
resumption upon her for one half ; and con-
sequently, when she has made seisin of any
particular part or portion of it, has a claim
of resumption upon her for the half of that
part of which she had made seision; and again,
on the other hand, because a gift of any part
of the dower to the husband amounts to an
abatement with respect to that part, and is
therefore altogether excluded from the con-
tract ;* and consequently, when the gift is of
that half which had remained unseised, it is
the same as if t*he contract Lad regarded the
half ortly (as where a seller, for instance,,
makes a gift of half the price of the commo-
dity sold, in which case it is the same as it
the price agreed upon were no more than the
remaining half) ; and such being the case, it
follows that the proportion of abatement (in,
consequence of gift) becomes altogether ex-
cluded from the dower, and that the half of
which seisin had been made stands as the
complete dower: — and as, where seizin had
been made by the wife of her whole dower*
and she had presented the same to her hus-
band, he would still (upon divorce before
consummation) have a claim of resumption
upon her for one half (as has been shown in
*The phrase in the original is remarkable,
"LEHAZA YEWLUKKO B'ASSIL AL AKID," —
'.'and therefore is connected with the origin
of the contract;" — that is to say,— with a
period antecedent to the contract, and conse-
quently not included in it* The term here
adopted appears to be the clearest by which
the translator could express the sense.
BOOK II.— CHAP. III.]
MARRIAGE
a former case), so here, in like manner, he
has a claim of resumption for a moiety of the
seised proportion, that standing as the com-
plete dower. The argument of Aboo Haneefa
in this case is, that the end of the husband
hath been already obtained, in a moiety of
the dower remaining untouched with him
without any return ; wherefore, upon divorc-
ing his wife before consummation, he would
have no occasion to make any resumption :
and with respect to what the two disciples
advance, that "an abatement becomes alto-
gether excluded from the contract," it may
be replied, if this were to be admitted, it
would follow that, in a case where a man
marries a woman on a dower of twenty Dirms
(for instance), and the woman makes a gift
to him of fifteen Dirms out of the twenty,
ten Dirms would remain obligatory upon the
husband ; because, the abatement being ex-
cluded from the contract, it would be the
same as if he had married her upon a dower
of five Dirms ; and if he had married her
upon such a dower, he would be bound for
ten Dirms, on the principle of law, that if a
man marry a woman on a dower of fewer than
ten Dirms, ten Dirms arc obligatory upon
him ; this idea would consequently lead to
an unjust and unfounded conclusion, and is
therefore inadmissible.
IF a man marry a woman on a dower of one
thousand Dirms, and she make a gift to him
of a part less than the half —two hundred,
for instance, — and take possession of the re-
mainder, and the husband afterwards divorce
her before consummation, he has, in this
case (according to Aboo Haneefa), a claim of
resumption upon her for such a sum as to-
gether with what she had proyiouslv be-
stowed upon him, mikes a moiety of the
whole, namely (in the supposition before
mentioned) three hundred Dirms: — accord-
ing to the two disciples, on the contrary, his
claim of resumption is for the half of »what
the woman had made sei.nn of, namely, four
hundred Dirms.
The same when the dnwer consists of effects
— IF a man marry a woman on a dower con-
sisting of certain specified effects, and she
make a gift of the same to him, either before
or after scir.in, and he afterwards divorce her
before consummation, he, in this case, has no
claim of resumption whatever upon the wo-
rmn — This proceeds upon -\ favourable con-
struction. — Analogy would suggest that he
should have a claim to the amount of the
value of half the effects, because here it be-
comes obligatory upon the woman to make
restitution of half the dower, as was already
explained, and she is incapacited from mak-
inn; restitution by delivery of half the actual
effects, in consequence of her sift ; wherefore
it would appear that she should make it by
paying the estimated value of one half —But
the reason for a more favourable construction
of the law in this case is, that the husband
who is entitled to recover from the woman
one half of what she had taken possession of,
in consequence of his having divorced her
before consummation, has already actually
obtained this (through her gift) ; whence it
is that the woman would not be at liberty to
give her husband any other thing in lieu of
those effects, because the consideration con-
sists of a thing capable of identical specifica-
tion, and of course the said effects, which
have been in possession of the woman, and
by her made over in gift to her busband, con-
stitute a dower of a certain specific descrip-
tion ; thus the husband appears to have
received that actual thins which had been
rendered obligatory upon the wife by divorce
before consummation : — contrary to the case
of a dower consisting of a debt ; for here, if
the wife were to make seisin of such debt,
and then to make a gift of the same to her
husband, and he afterwaads to divorce her,
as above, he would, in this case have a claim
of resumption upon her for the value of one
half of the dower, because a debt of this na-
ture is, like money, incapable of identical
specification : — and contrary, also, to a case
where a woman, having taken possession of
effects, as a dower (as was stated in the pre-
ceding case), sell such effects to her husband,
because, in this case, they have come back
to him for a consideration and his claim is
to the recovery of the half of her dower with-
out any consideration. — And if the dower
consist of an animal, or of effects, which are
a debt upon the husband,* the rule is the
same as in the case of one consisting of
specified effects ; x because the thing seised by
the woman is of such a nature as, if she had
herself borrowed it, must be restored by her
in substance ; and articles of this description
are all capable*>f identical specification.
Cases of stipulation in behalf of the wife.
— IF a man marry a woman on a dower of
one thousand Dirms, f on a condition that he
is not to carry her out of her native city, —
or that he is not to marrv, during his
matrimonial connexion with her, any other
woman, in this case, if he observe the con-
dition, the woman is entitled to the above
specified dower only, as that consists of a
sum sufficient to constitute a legal dower,
and she has agreed to accept it ; but if he
should infringe the condition, by either
carrying her put of her native city, or marry-
ing another wife, she id in this case entitled
to "her proper dower, because he had acceded
to a condition on behalf of the woman which
was advantageous to her, and that not being
fulfilled, the woman is nor supposed to be
satisfied with the thousand Dirms, and must
therefore be paid her complete proper dower ;
the same as iij a case where a woman had
agreed to accept of one thousand Dirms, as
a dower, on condition of being treated with
*That is to say, an animal, or effects,
which had been borrowed or procured upon
credit by the husband. *
fThis case proceeds on the supposition of
one thousand Dirms being of less valtie than
the wo nan's pro;3er dower.
50
MARRIAGE.
[VOL. I.
reverence, and not subjected to any labouri-
ous work ; or of being presented with a rich
dress, and so forth.
IF a man marry a woman, stipulating the
dower at one thousand Dirms, provided he
.should not carry her out of her native city,
but stay and reside there with her,-— or at
two thousand, if he should carry her thence,
— in this case, if he continue to reside with
her in the said city, she is entitled to the j
thousand Dirms only; but if he carry her
thence she becomes entitled to her proper
dower, where that does not exceed two
thousand, nor fall short of one thousand. —
This is according to Haneefa. The two dis-
ciples say that both conditions are equally
valid, insomuch that, as if he were to con-
tinue to reside with her in the city aforesaid,
she would receive the one thousand Dirms
only, so if he carry her thence, she becomes
entitled to two thousand.— Ziffer, on the
other hand, maintains that both the con-
ditions are null and that the woman shall,
in either event, receive her proper dower,
where that does not exceed two thousand
Dirms, nor fall short of one thousand — This
case is founded upon what occurs in the book
of Hire, where a man says to a tailor, "If
you make me up this robe within the day, I
shall pay you one Dirm; or if you finish it
by to-morrow, you shall have half a Dirms ;"
— as will be hereafter explained.
Cases of a dower consisting of property
unidentified — If a man marry a woman,
agreeing to give her, as a dower, either of
two slaves unspecified, — as if he were to say
— "Make one of these two the dower "—and
the slaves be of different value,-«*-in this case,
where the woman's proper dow'T is under
the rate of the slave of less value, she re
ceives that on ; or if it exceed the rate of
the more valuable slave, she receives that I
one ; and if it exceed the former, and fall
short of the latter, she then receives h?r
proper dower. This is according to Aboo
Yoosaf — The two disciples allege that the
least valuable slave goes to her, in all these
circumstances. But if the husband divorce
her without consummation, she in that case
becomes entitled to half the price of the least
valuable slave only, according to all the doc-
tors.— The argument of the two disciples, in
this case, is that the proper dower is not to
be held obligatory, unless where the stipu-
lated dower is of such a nature as renders an
obligation with respect to that impossible ;
but it is possible with respect to the le?sf
valuable slave, because that one is un-
doubted,* and is therefore obligatory ; the
same as in a case of Khoolaf or of manu-
mission, for a compensation "of one thou-
sand, or of two thousand," or "of this slave,
or of that slave;"* in which case, whatever
is the least value named is held to be the
compensation either for Khoola or for manu-
mission, as there can be no doubt concerning
it ; and so in this case also. — The argument
of Haneefa, in reply to the two disciples, is
that the proper dower is the radical obliga-
tion in a contract of marriage, like the price
of a purchase, in a contract of sale, as that
is the most equitable, being a medium ad-
justment neither over nor under, and conse-
quently it is not to be deviated from, except
in cases where the specification of the dower
is perfect and complete ; but here the speci-
fication is not complete, since neither slave
has been particularly mentioned by the hus-
band, in settling the dower, but both indefi-
nitely : contrary to a case of Khoola or of
manumission for a compensation, since in
neither of these is there any radical compen-
satory obligation understood, independent of
some particular previous agreement ; for if
a slave were to say to his master, "emanci-
pate me," and the master were to reply
"thou art free " or if a wife were to say to
her husband, "grant me Khoola," and the
husband were to reply, "I have granted
Khoola," no obligation whatever would re-
main upon the slave or the wife ; whereas
on the contrary, if a woman were to say to a
man, " marry me," and he were to reply, "I
have married you, "her proper dower would
be incumbent upon him : but where the rate
of the more valuable slave falls s'.iort of the
proper dower, the wife has yirtually acceded
to the abatement : and, in like manner,
where the rate of the least valuable slave
exceeds the proper dower, the husband has
virtually agreed to the excess ; and she then
receives one or other of the slaves, as the
case may be. —It is here to be observed that
if divorce take place before emancipation,
the wife is to receive from her husband a
present in Addition to half the price of the
least ..valuable slave : this is a rule estab-
lished t by custom, and must be complied
with, as an obligation on the part of the hus-
band, although the value of the present
should even exceed the half price of such
slave.
Or undescribed —-If a man marry a
woman, assigning her, as a dower, an ani-
mal undescribed, it is approved, and the
woman shall receive an animal of a middling
standard ; but the husband has it at his
option instead of this, to pay her the value of
such an animal in money.— The compiler of
the Hedaya observes that this is to be un Jer-
stood only where a man names the species of
That is to say, although, with respect to i
the slave of greater value, a doubt might be |
entertained, yet wjth respect to the other I
there can be none, since that is the lowest !
buffered by the party himself. !
* This relates merely to the point of lav
in case of vague and indefinite expression ;
for instance, in Khoola, where the wife may
say to her husband, "I will give you one or
two thousand Dirms, or either of my slaves,
Zeyd or Amir, for my divorce,"— in which
case the law always determines the proposed
compensation at the lowest value mentioned.
BOOK II.— CHAP. III.
MARRIAGE.
51
the animal in general, without any specific
description (as if he were to say, "I will
give you as a dower a horse," or "an ass,"
without describing whether it is to be an
Arabee or a Tcorkee) ; but where he does not
mention the species of the animal (as if he
were to say, "I will give, as a dower, a
quadruped"), it is not lawful, and he in that
case becomes liable to make good to the
wbman her proper dower. — Shafei maintains
that a proper dower is obligatory in either of
the above cases, he holding that nothing
is fit to be assigned as dower, in a contract
of marriage, but what would he capable of
appreciation in a contract of sale ; and an
animal underscribed, ia incapable of apprecia-
tion, as being unknown, and consequently
cannot constitute a dower — The argument of
our doctors is, that a contract of marriage
includes an exchange of property for that
which is not property (for the use of the
Woman's person, which is the ie turn, cannot
be termed such) :— now the law admits that
animals may be a debt upon the person, in
the course of an exchange, where th.re is no
property in return, as in the case of Deeyat,
where an hundred camels are rendered obli-
gatory in law, their description being unde-
fined: the dower is therefore to be considered,
in this respect, a*, a property, conctrning
which the man has taken an obligatic n upon
himself a priori, in the manner of an ac-
knowledgment : now ignorance, with respect
to the actual property, does not invalidate an
acknowledgment by which a person takes
upon himself a priori, an obligation concern-
ing it ; as for example, if a person were to
acknowledge that he owed a slave, or any
thing else undescribed, his acknowledgment
would be good, and the specification would
rest with him.
OBJECTION. — If the nomination of a dower
be to stand the same as an acknowledgment,
it follows that the nomination of an animal
on account of dower is approved, although
•the species remain unknown, — the same as
in an acknowledgment respecting property
'unknown. — which is not the case. * '
, REPLY. — A knowledge of the species of the
animal is made a condition, in conformity
with the rule, that a specified dower shall
consist of property, the medium of which
may be known, for the sake of both the
parties ; now this cannot be ascertained,
except where the species is unknown, which
comprehends a best, a worst, and a medium
of the kind, for if this be unknown, the
distinction cannot be made, since no medium
can be ascertained amidst an infinite variety
of species. — But (as was already observed)
the husband has it at his option, in dis-
charging the dower, either to give the woman
a medium animal of the species mentioned,
or to pay her the value in money, because
the medium cannot be ascertained precisely
except by appreciation, and consequently
the value of the %nimal is the standard
of pay me at ; and, on the other hand, the
actual animal is the standard according to
nomination.
IF a man marry a woman, assigning her a
dower of cloth, undescribed, she, in this
case, receives her proper dower. This is
where the term cloth alone is mentioned by
the man without any addition ; and the
reason is, that the species of cloth is here
unknown and una&certamable , since of that
there are a variety of species. — But if he
were to name the species of cloth, as if he
were to say, "I will give, as a dower, a piece
of Hirrooey,"* this manner of description
is approved ; and the husband has it in his
option eithur to give a piece of Hirrooey of
a middling quantity, or to pay the value in
cash, for the reasons already stated. In like
manner he has it at his option either to give
the cloth or to pay the value, where he has
been still more particular, in his description,
mentioning the length, breadth, and quality
of it, in a way such a« would suffice in a
Sill i m sale. — This is* according to the Zahir
Rawayet ; and the ground upon which it
proceeds is that cloth is not of the class
of things denominated Zooatal-Imsal, or
things compensaale by an equal quantity of
the same species. In like manner he shall
have i he same option where the dower is
assigned of goods, the quantity of which, is
asccrtamable by weight or measure, provided
he should not have' particularly described
the quality, but only the species : but if he
should particularly describe the quality, he
then has no option, and must pay the actual
thing mentioned, because, under such de-
scription, it becomes a debt upon him, of
the specific wcighable or measurable articles
described.
Case of a Aower consisting of unlawful
artic/es. — IF a Mussulman marry a woman,
agreeing to give her, as a dower, wine or a
hog, the woman has her proper dower, because
a condition of assenting to receive such ar-
ticles is invalid ; but as a contract of mar-
riage is not rendered null by a nugatory
condition being comprehended in it, it holds
good, in this Cise, though the condition be
null : contrary to a case of sale, which is
rendred null by an invalid condition. — The
assignment of the dower in either of the
articles aforesaid is disapproved, because
what is named is not property with Mussul-
mans ; and on this principle it is that a
proper dower becomes due.
Cases of false assignment.— !? a man
marry a woman, assigning her, as a dower,
a cask of vinegar, and the cask should
afterwards appear to contain wine, she, in
this case, has her proper dower, according to
Haneefa. — The ttwo disciples allege that, in
this case, she is to receive vinegar of a
medium quality, and the same in quantity
as the wine, — And if the man were to name,
as a dower, a certain specified slave (as if
* A particular species of cloth manufca*
tured in Herat, a city of Khorasan.
52
MARRIAGE,
[VOL I.
he were to say, "I assign this slave as a
dower"), and it should afterwards appear
that the person so mentioned as a slave was
at that time free, to this case a proper dower
is due, according to Haneefaand Mohammed.
Aboo Yoosaf says that here husband
owes the estimated value of the free person
aforesaid, supposing he were a slave ; for he
argues that the man has filled the woman
with the expectation of a certain property,
the delivery of which he afterwards finds
impossible ; the value therefore is obligatorv
upon him, or an article similar to that agreed
for, if it be of the species of Zooatal Imsal.
as in a case where a man marries a woman
on a dower consisting of a specified slave.
and the slave dies before delivery — Aboo
Haneefa, on the other hand, savs, that
where nomination and pointed reference*
are united, regard must be had to the latter,
because indication is more clear and exoress
under that form, and hence the case is the
same as if the man had engaged to give, as
a dower, wine or a hog,t Mohammed (coin-
ciding with Haneefa with respect to the
slave, and dissenting from, him with respect
to the vinegar, as aforesaid) says that it is
a rule, that if the thing named be of the
same species with the thing specified bv
pointed reference, the contract is connected
with the latter : but if the thing named be
of a species distinct and different from the
thing pointedly specified, it [the contract] is
connected with the thing named ; because
indication is more effectual from naming a
thing, than it is from pointing that thing
out, inasmuch as it is therebv known what
that thing is, whereas by pointing it out the
substance only is known : — on w^hich principle
it is that if a man purchase a ring; stone, on
the condition of its being a rubv, and it
should prove to be only a garnet, the bargain
is void, on account of the difference of spe-
cies ; but if a person were to purchase a
stone on condition of its being a rubv, and
it should prove to be an emerald, yet the
bargain holds good, because these are held
by lapidaries to be of the same species : —
now, in the present instance, the slave and
the free person are of one and the fame
species : the contract, therefore, is connected
with the thing identically specified or pointed
out, and on this principle her proper dower
*Tasmeeat and Isharet : the former term
means simply naming a thing, or (as ex-
pressed above) nomination ; by the latter is
understood pointing a thing out, such as
"This slave/' &c.
fThis is to say, the condition is altogether
void, and a proper dower is of course due ;
for if the man were to say, "I will give as a
dower this slave," and the person so spoken
of should appear to be free, it is evident
(regard being had to the relative "this,"
demoting pointed reference) that the con-
dition os agreement is ipso facto null, as
regarding a thing which does not exist.
is due to the woman ; but wine and vinegar
being of distinct species, and totally different
from each other (inasmuch as the latter is
lawful in use, and the former prohibited)
the contract is there connected with the
thing nominally specified, and consequently
the woman is entitled to vinegar equal in
quantity to the wine.
IF a man mairv a woman, agreeing to give
her, as a dower, two slaves specified, as if he
were to say, f'I assign, as a dower, those two
slaves ;" and it should happen that one pt
j the persons so specified as slaves is free, in
| this case, according to Haneefa, the woman
is not entitled to more than the single slave
retraining, provided the value bo equal to
ten Dirms, because the slave is particularly
| assigned, and where the assigned dower is
admitted to be incumbent, this prohibits the
obligation to proper dower:— as where a
man, for instance : marries a woman, assign-
ing her, as a dower, a piece of cloth ot the
value of five Dirms, in which case the
woman gets the piece of cloth aforesatH-
together \vith five Dirms in money, in such a
manner as that the whole shall amount to
ten Dirms, being the lowest legal dower,
beyond which nothing is incumbent. Aboo
Yoosaf alleges that, in this case, rhe woinin
gets the slave, together with the amount of
the estimated value of the other person,
supposing he were a slave, because here the
man has filled her with expectation of two
slaves, the delivery of one of which after-
wards appears to be impossible ; wherefore
the value of the latter is obligatory upon
him. Mohammed has said (and there is also
onri opinion recorded ot Manet-fa to the s,ime
effect) that the woman j^ts the salve, together
with a property sufficient to complete her
proper dower, if thai should exceed the value
of the salve ; because, if both the persons
named as slaves by the husband, in speci-
fying the dower, were actually free, the
whole proper dower (according to Moham-
med) would T>e due ; and consequently, where
one only is a slave th-it slave is ^due, together
with such property as (along with the slave)
amounts to a proper dower.
A woman iy not entitled to any dower
under an invalid marriage dissolved brf le
consummation. — IF the Kazee separate a man
from his wife, before cohabitation, on account
of their marriage being invalid, the woman
is not entitled to any part of her dower, be-
cause, where the marriage is invalid, ro
obligation with respect to dower is involved
in the contract, as that, in such a case, is also
null ; nor is the dower held to be due on any
other ground than the fruition of the connu-
bial enjoyment, which is rot found in .the
present instance — In the same manner no
dower is due after Khalwat Saheeh, or com-
plete retirement, because, on account of the
invalidity of the marriage, the law does not
consider retirement as indicating the com-
mission of the carnal act, rfnd consequently
it does not stand as such. It is, however, to
b^ observed that in an invalid marriage a
BOOK II.— CHAP. III.]
MARRIAGE.
*53
separate dower is not due on account of
everv repetition of the - carnal act, because
here the right of possession is doubtful, and
the case is 'therefore the same as where a man
has repeated carnal connexion with the slave
of his son, — or where a man has repeated
carnal connexion with his wife, and it should
afterwards appear that he had suspended the
divorce of that woman upon the circum-
stance of his marrying her, — in either of
which cases one dower only is due, because of
a doubt respecting the right of possession ;
contrary to a case where a man has repeated
carnal connexion with the slave of his father,
his mother, or his wife and pleads hii con-
ception of the same being lawfu1 ; for in
this case a dower is incumbent xipon him for
every repetition of the act, because here no
doubt exists, as he appears, on every repe-
tition, to have had carnal connexion with a
slave who is the absolute property of another:
— and, contrary also, to a caae where a man
has repeated carnal connexion with a frmale
slave held in partnership between himself
and another, for in this case an half fine is
jncumbent upon him for every repetition
(a:cordin£T to the determination in the Hur-
hanal Aim* of Abdul- azeez-Iim Amroo),
because' he ha» every lime committed the
carnal act in the share of his partner.
But in case of romumnuziion, she M
entitled to her proper dower, not exceeding
what is specified in the contract.— IF a man
engage with a woman in an invalid marriage,
and have carnal connexion with her, she is
in this case entitled to her proper dower :
but she is not entitled to more than the
sivcified dower, *according to our doctors.—
This is contrary to the oninion of Ziffcr, who
conceives an analogy between this and an
invalid sale, that is to say, in an invalid
sale, if the stipulated price of the thing sold
be short of its actual value the latter is due
to whatever amount ; and so also in the
present c:a*e. —The argument of o\ir doctors,
in this case, is that the thing which' the
husband has received (namely, the pos&ession
of the woman's person) is not property, and
therefore is not appreciable in any other way
than by the assignment of a dower; now if
a dower assigned should exceed the proper
dower, the excess is not incumbent, because
of the invalidity of the assignment, for that
is a part of the contract, which being invalid,
the assignment is so likewise, and, oil the
other h-md, if the dower assigned be short of
the proper dower, the difference is not incum-
bent because, with respect to that, assign-
ment has not been made ; contrary to an
invalid sale, because there the thing sold is
appreciable, and consequently the amou-it of
the return will be adjusted by its value.
•That is to say, if her proper dower
s'aould exceed in vakie the dower specified in
the .contract, yet tRe woman is entitled to
.
the specified dower
roper dower.
only, and not to her
And she must observe an Edit after sepa-
ration.— THE observance of an Edit, after
separation, is in-cumbent upon a woman with
whom a man has had carnal connexion in an
invalid marriage. And here the Edit is to
commence as from the date of separation, and
not from that of the last carnal connexion.
A child born in on illegal marriage is of
established descent. — THE descent of a child
born of a woman enjoyed in an illegal
marri'ige is established [in the reputed
father], because in this, regard is had to the
child's preservation, since if the descent were
not to be established, the child might perish
for vvint of care. — Mohmmcd holds (and
decrees are pas.ed agreeable to this doctrine)
that, in the establishment of genealogy
undiT an invalid marriage, the time* is
calculated from the first carnal connexion,
not from the date of the marriage, because
one which is invalid does not give a claim to
the carnal act, so as to stand as such, where-
as the reverse is the case in a valid marriage,
as that establishes such claim : and hence, in
•he establishment of genealogy, the time is
calculated from the date of the marriage.
Rat? of the Mi/rr Xfts/, or proper dower —
THE Mihi Misl (or proper dower) of any
woman is to be regulated , in its amount or
valui*, by that of the dower of her paternal
relations, such as her paternal sister or
aunts, or the daughter of her paternal
uncles, and so forth, according to a precept
of Ibn Mussaood, "To the woman belongs
such a dow r as is usually assigned to her
female pitrrnal relatives :"— moreover, men
aie accounted of the class of their peternal
tribe, and tlie value of a thing cannot be
estimated but by attending to the value set
upon its class.
A WOMAN'S prooer dower is not to be
e.st invited by the dower of her mother or her
maternal aunt, where they are not descended
of her father's family, on account of the
precept of Ihn Mussaood already recorded ;
vet if her mother should be descended of her
father's family (being for instance, the
.'laughtor or his paternal uncle), in this case
a judgment may be formed from her dower,
as ht'ing descended from the family of the
father.
TN regulating the proper dower of a
woman, attention must be paid to her
quality with the womnn from whose dowers
the rule is to be taken, in point of age,
beauty, fortune, understanding, and virtue,
because it varies according to any difference
in all these circumstances : and, in like
rnanner.it differs according to place of resi-
dence, or time (that is to say, times of trouble
and confusion, as opposed to time to tran-
quality) : and the learned in the law have
observed that equality is also to be regarded
•The probable term of pregnancy,
which the child's descent is to be judged o
and ascertained, (For a further elucidation
of this point see Book of Divorce, Chap. X4II.)
54
MARRIAGE.
VOL. 1.
in point of virginity, because the dower is
different according as the woman may be a
virgin or otherwise.
A woriian's guardian may become surety
for her dower.— IF the Walee [guardian] of a
woman become surety for her dower, it is
approved, because he is competent to such
responsibility (that is, to take such obliga-
tion upon himself), and he is surety in a
thing which is a legal subject of bail
(namely, 'the dower), since that is a debt, in
which bail is approved : and the woman is
afterwards at liberty to require her dower
either of ner husband or of her guardian, as
in all other cases of bail: and if the guar-
dian pay the dower, he shall take the same
from the woman's husband, where he has
become surety at his desire, as is the in-
variable rule in bail. The bail is like
manner approved, if the wife be an infant :
contrary to where a father sells the property
of hii infant child, and becomes bail for the
amount, which is not lawful, because a
guardian is, with respect to marriage, a ne-
gotiator merely ; but in sale, he is the exe-
cutor of the contract (whence it is that its
obligations rest upon him, and its rights
appertain to him) ; and the father's discharge
is also approved, if he clear the purchaier of
the whole price of the infant's property ; and
ke is moreover at liberty to take possession
of the price after the infant shall have
attained maturity ; wherefore, if his bail
were to be approved, it would admit the
principle of a man becoming surety in his
own behalf, which is absurd.
OBJECTION.— A father is at liberty to take
possession of the dower of^ his infant
daughter, in the same manner as of the
price of his infant child's property ; where-
fore if the ball of the father with respect to
the dower be approved, it follows that he is
bail in his own behalf.
REPLY.— The authority vested in a father
to take possession of the dower is because of
his parental relation, and not on account of
,hisbeinga party in the contract (for which
reason it is that he is not at liberty to take
possession of the dower after the maturity of
his child), so that he does not in this case,
appear to be bail in his own behalf.
A woman may resist consummation until she
be paid the prompt proportion of the dower.
— A WOMAN may refuse to admit her husband
to a carnal connexion until she receive her
dower of him, so as that her right may be
maintained to the return, in th same
manner as that of her nusband to the object
for which the return is given, as in sale.
A WOMAN is also at liberty to resist her
husband carrying her upon a journey until
she shall have received her dower of him,
for the same reason
ON the other hand the husband has no
power to restrain hU wife from going on a i
jotirney, or from going abroad, or visiting
her friends, until such time as he shall have
'discharged the whole of the Mihr Moajil, or
prompt dower, because a husband's right to
confine his wife at home is solely' for* the sake
of securing to himself t/ie enjoyment of her
person, and his right to such enjoyment does
not exist until after the payment of the re-
turn for it.
Unless the whole dower be deferable, —
WHAT is here advanced proceeds upon a sup-
position of the whole dower, or a certain
portion of it, being Moajil, or prompt ; but
if the whole be Mowjil, or deferred,* the
woman is not at liberty to refuse the em-
braces of her husband, as she has dropped
her right by agreeing to make her dower
Mowjil, - the same as in a case of sale, where
if the price of the article sold be made de-
ferable, the seller is not at liberty to detain
the article sold on account of the price. —
Aboo Yoosaf controverts the doctrine which '
is her advanced, and maintains that, in
this case also, the wife is at liberty to reiusc
to admit her husband to carnal connexion, •
as long as he omits to make payment of the
dower.
And she may also resist a repetition of the
connexion, alter consummation, in the like
circumstances.— IT is further to be observed,
that even if the husband should have com-
mitted the carnal act, or should have been in'
complete retiremens with the wife, yet the
rule is the same ; that is to say, she is still
at liberty to refuse to admit him to carnal
connexion, or to resist his carrying her
upon a journey, until such time as she shall
have received the whole of her prompt dower
from him. — This is the doctrine of Haneefa.
— The two disciples, on the contrary, allege
that the woman, in this case, has no such
liberty of refusal or resistarce. It is to be
remarked, however, that this difference of
opinion subsists only where the original
carnal act, or complete retirement, has taken
place with the woman's consent ; but if she
have been enjoyed by force, or if she be an
infant or an idiot, her right of refusal or re-
sistance, as sfbove, does not cease, according
to the* united opinion of all our doctors.
But She ts, notwithstanding, entitled to her
subsistence. — IT is proper to observe, that
where the woman refuses to admit the hus-
band to a repetition of the carnal act, as
above stated, yet she has, nevertheless (ac-
cording to Haneefa), a claim to her subsis-
tence, as her rufusal does not, in this case,
proceed from tiny stubbornness or disobe-
dience since it is not exerted in resistance
to a right, but rather in maintenance of one.
— The two disciples hold that she is not
entitled to any subsistence; and their argu-
ment on this occasion is, that the sole object
of the contract has been duly delivered to
the husband, either by the single carnal act,
or by the single complete retirement, as
aforesaid ; on which account it is that her
right to her whole dower is confirmed a'rid "
*TViatisto say, if tty; stipulation fixes
the payment of the dower at some future
period, as a year, or so forth.
BOOK II.— CHAP. III.]
MARRIAGE.
55
established, and consequently no right of
further detention of her person remains with
her : as in a case of sale, where the seller
having delivered the article sold to the
purchaser, before receiving the price, has no
further right over it. — Haneefa, on the other
hand, reasons that the woman in resisting
refuses and withholds a thing which she has
opposed to a return, and over which she has,
of course a right of detention, until such
return shall have been duly made to her :
and with respect to what the two disciples
allege, that "her right to her whole dower
is confirmed and established by the single
carnal act, and so forth/' it may be replied,
that the whole becomes confirmed to her by
a single commission of the carnal act, or
a single instance of complete retirement,
necessarily, because every thing beyond that
is then unknown, and consequently cannot
obstruct the operation of what is known ;
but the right of resistance still remains be-
cause the dower is opposed to the whole, the
same as to the single instance, of enjoy-
ment,
The husband obtains full authority over his
wife upon payment of her dower. — WHEN
the husband has duly paid to his wife the
whole of her dower, he is at liberty to cirry
her wherever he pleases, because tSe word
of GOD says, "YE SHALL CAUSE TFJEM TO
RESIDE IN YOUR OWN HABITATIONS." Some
have alleged that the husban i is not at
liberty to carry his wife to another city
different from her own, although he should
have pcu'd her the whole dower, because
journeying and travelling may be injurious
t > her ; but he is at liberty to carry her to
the villages in the vicinity of her city, as
this does not anijunt to travelling.
Cases of dispute between the parties con-
cerning the amount of dowir. — IF a man
marry a woman, and they afterwards dispute
concerning the rite :>f her dower, 'the de^cla-
ration of the wife is to be credited to "the
amount of her proper dower, and that o'f the
husband, with respect to any excess. This
proceeds upon a supposition of his having
had carnal connexion with her : but if he
should have divorced her before consumma-
tion, his declartion alone is to be credited
with respact to the half dower. This is the
doctrine of Haneefa and Mohammed. Aboo
Yoosaf alleges that the declaration of the
husband is^ to be credited, whether before
divorce or after, unless where it goes to
establish something trifling, that is to say,
something so small as is known to be short
of what such a woman has a richt to expect
in marriage according to general usage ; and
this is approved. The argument of Aboo
Yoosaf is that, in the case in question, the
woman is plaintiff suing for an excess,
and the husband defendant ; and the
declaration of a Defendant, when made
upon oath* is to be credited ; wherefore
that of the husband, in the present in-
stance, must be so, unless he testify to some-
thing so small as that apparent circumstances
argue against him : and the ground upon
which this proceeds, is that the appreciation
of the woman's person is a matter of neces-
sity ; and, therefore, so long as it is possible
that anything can be decreed from the stipu-
lated dower, the proper dower is not regarded.
— The argument of Haneefa and Mohammed
in this case is that, in all claims, credit must
be given to the declaration of that person in
whose favour apparent circumstances bear
testimony, and apparent circumstances do
bear testimony with one who attests the
proper dower, as that is the standard ob-
ject in marriage: — similar to a case where
dispute arises between a dyer and the owner
of a piece of cloth, concerning the charge for
dying, in which case the declaration of that
person will be credited in whose behalf the
value of the dye or colour bears testimony *
Concerning what is here advanced, that "if
the husband should divorce his wife before
consummation, his declaration alone is to be
credited with respect to the half dower ;" it
is to be observed that this (which is recorded
by Mohammed in the Jama Sagheer and
Mabsoot) apparently contradicts what he has
advanced in the Jama Kabcer, to wit, that
"the woman must, in this case, be decreed a
proportionable Matat, or present" — (which
is conformable to the inference of Haneefa
and Moh mimed, who hold that, as a present
is due, on account of a contract of marriage,
after divorce, the same as a proper dower,
before divorce, the one must be decreed her
in the for ner case, as well as the other in
the latter i ; —but this apparent contradiction
between the :ib^ve authorities' may be recon-
ciled by adverting to the different manner in
which the case is put in them respectively;
thus, in the Mabsoot, the case supposes one
thousand Dirms and two thousand, — that is
to say, the husband declares that the dower
is only one thousand Dirms, and the wife
claims two thousand ; now the value of a
customary present does not equal the half
of those sums, of course, to decree a
present h»re would be no advantage to the
plaintiff: — in the Jami Kabeer, on the
other hand, the case supposes ten Dirms,
and one hundred Dirms — that is to say, the
husband averts the dower to be only ten
Dirms. and th? wife claims one hundred •
and her proper t present may be estimated,'
suppose at twenty Dirms ; here therefore
a proper present may with propriety be de-
creed to her : and what occurs upon this sub
ject in the Jama Sagheer being destitute of
any mention of the amount of the dower
that rests upon vjhat is said in the Mabsoot. '
•Because, as different colours bear a dif-
ferent price, the value of the colour used is
certainly the only standard by which the
amount of the charge for dying can be*
judged of. »
fArab, Misl: that is, proportionable to her
rank and circumstances, in the same manner
as the proper dower.
56
MARRIAGE.
[VOL. L
—As a more full exposition of the doctrine
of Haneefa and Mohammed, in a case where
a dispute arises between the husband and wife
concerning the amount of the dower on the
continuance of the marriage, let us suppose
that the husband declares one thousand
Dirms, for instance, and the wife claims two
thousand, in which case, if the proper dower
of the woman do not exceed one thousand,
the declaration of the husband is to be cre-
dited ; but if it be two thousand, or upward,
that of the wife j ^and whoever of the two
produces evidence in support of his or her
declaration, the same is to be credited, under
either of the above circumstances ; and if
they both produce evidence under the first
of the above circumstances (that is, the
woman's proper dower not exceeding one
thousand pirms), the evidence on the part
of the wife is to be credited, because by
such evidence her right to the excess is estab-
lished ; — but if, under the second (that is
the woman's proper dower be?ng two thousand
or upwards), the evidence on the part of the
husband is to he credited, because that goes
to prove that the wife has made an abate-
ment in her dower : but if the proper dower
be one thousand five hundred Dirmg, both
parties must be required to make oath, after
which one thousand five hundred are to be
decreed to the woman. This is according to
the Takhreej of Razi. Koorokhee says that
the oath must be tendered to both parties in
all the three circumstances, after which the
proper dower must be decreed. — All this ao-
plies to a case where the husband and wife
dispute with respect to the amount of the
dower itself, and not with resnect to its speci-
fication : but if their dispute respect the latter
one of the parties asserting that a dower had
been named, and the other denying, in this
case the proper dower must be decreed, ac-
cord inq to all the doctors, that being the
original dower, independent of any specifi-
cation.
Or between one nf the parties, and the
heirs of the other. — IF, after the death of
the husband or wife, a dispute should arise
between the survivor and the heirs of the
deceased, concerning the amount of the
dower, the rule in this case is the same as
when the dispute arises between the parties
during life, because a claim to the woman's
proper dower does not cease in consequence
of the demise of either.
Or between theheirs of both parties. — AND
if both husband and wife were to die, and a
dispute to arise between their<_ heirs with re-
spect to the amount of the dower, in this
case the declaration of the husband's heirs
shall be credited, although they should de-
clare a sum less than the usual and customary
dower of such a woman as the wife deceased.
cr-This is according to Haneefa. Mohammad
holds that the rule is the same here as where
the dispute arises between the parties during
life./—And if the heirs dispute with respect
to the specification of the dower, one party
' insisting that a dower had been named, and
the other denying, the declaration of the
latter is to be credited, according to Haneefa,
In short, with Haneefa, the woman's proper
dower is not at all regarded after the decease
of both parties, as shall be hereafter demon-
strated. The two disciples on the other hand,
maintain that the proper dower should in
that case be decreed.
The heirs of a deceased wife may take the
amount of the specified dower out of the de*
ceased husband's property. — IN case of the
death of both husband and wife, it belongs
to the heirs of the latter to take the dower
out of the estate of the husband, where it
has been specifically named : but if it should
not have been specified, they cannot claim
anything whatever, according to Haneefa,
The two disciples maintain that woman's
heirs are entitled to her dower in either case,
— that is to say, to the •pecified dower, in the
former case, or to the woman's proper dower,
in the latter ; — in the former, because the
specified dower was a debt upon the husband,
confirmed by the circumstance of his decease,
and consequently must be paid out of his
estate, unless it should be known that the
wife had died first, in which case the
husband's portion of inheritance would droD
from the dower [that is, must be deducted
from it] on account that he also is an heir;
— and, in the latter, because the woman's
proper dower had become a debt upon the
husband, the same as a specified dower, and
therefore does not drop in consequence of his
death, any more than where onlv one of the
parties dies. — Haneefa argues that, in this
case, a supposition of the death of both
husband and wife affords n conclusion that
their peers and contemporaries are alrea-ly cut
off by death, and no longer remain, because
it is most probable that they would not both
die until after a length of time; and after
the lapse of«such a period, their peers and
contemporaries no longer remaining, from
whom* can the Kawzee judge of or decide
what the value of the woman's proper dower
ought to be ? — Haneefa, however, holds also
that where the husband and wife both happen
to die before the lapse of any length of time,
so as that their peers and contemporaries are
still remaining, her heirs are entitled to her
proper dower.
Case of a dispute concerning articles sent
bv a husband to his wife — IF a husband were
to send anything to his wife, and she were
to denominate it a present, while he asserts
that he has given it in part payment of her
dower, in this casp the declaration of the
husband must be credited, because he is the
giver, and consequently must be supposed
to know his own intentions best ; — moreover,
it is evidently the business of the husband to
liquidate the obligation which lies against
him before he proceeds to p?rform gratuitous
acts; his declaration, therefore, must be
credited, except where the thing sent con-
sists of victuals ready dressed for eating (such
as roasted, or boiled, or stewed, and so forth),
in which case the assertion of the woman
BOOK H.—CHAP. III.]
MARRIAGE.
57
must be credited, because it is usual and
customary for husbands to send such articles
as presents to their wives, not counting it in
the dower ; but in respect to wheat or barley,
the declaration of the husband should be
credited for the reason above mentioned. —
Some have observed that articles, the supply
of which is generally held incumbent upon
the husband, such as shifts, and rob as, and
veils, are not to be counted in the dower,
apparen circumstances arguing against
thit
Section.
O Me a^iver of infidel subjects and of
aliens, where none has been stipulated, or
where it consists of carrion. — IF a Christian
man marry a Christian woman without stipu-
lating any dower, or marking it consist of
carrion,* such as may be deemed lawful by
those of their profession, and have carnal
connection with her, or divorce her before
consummation, or die and leave her, the
woman is not entitled to any dower what-
ever, although both parties should have
embraced the faith within the interim — And
the law • is the same where the parties are
aliens married on like terms in a foreign
country. The opinion of the two disciples
concerning aliens as the same as that of
Aboo Haneefa; but with respect to Christians,
being Zimmees (that is, subjects of the
Mussulman government), they hold that the
woman is entitled to her proper dower, where
the husband either consummates the marriage
bv committing the carnal act, or dies ; and
that she is entitled to a present when he
divorces her before consummation. — Zin\.'r
alleges that the alien woman is entitled to
her proper dpwsr in either case (that is, in
the event either of the husband's death, or
of divorce), because the law does not hold it
allowable to seek or desire marriage but in
return for property, and this rule equally
affects Infidels and Mussulmans, as marriage
forms a part of the temporal law, the obliga-
tions of which extend to all alike. To this
the two disciples reply, that aliens do not
take upon themselves any obligation to the
observance of the laws of Islam, neither ars
they capable of so doing, on the account of
a difference of country • contrary to the case
of Zimmees, who are subject to the Mussul-
man law in all temporal concerns, or acts to
which the temporal law has reference (such
as whoredom, usury, and so forth), since
they are fully capable of taking upon them-
selves an obligation to the observance of
those laws, as being native subjects of the
Mussulman country. Haneefa reasons upon
this, that Zimmees do not subject themselves
to any of the laws of Islam, either with
respect to things which are merely of a
* Meaning the tflesh or carcass of any
animal which dies a natural death. — The
original word signifies the flesh of any fowl
or quadruped not being Game) which has
not been lawfully slain.
religious nature (such as fasting and prayer)
or with respect to such temporal acts as,
though contrary to the Mussulman law, they
may hold to be legal (such as the tale of
wine, or of swine's flesh), because we are
commanded to leave them at liberty, in all
things which may be deemed by them to be
proper; according to the percepts of their
own faith ; wherefore, with respect to all
such acts, Zimmees are the same as aliens ;
but from these is to be excepted whoredom,
that being held universally, and by all sects,
to be a criminal act ; and as to usury, no
such thing can have legal existence, it being
excepted from all the obligations to which
the person can be subject, because of a saying
of the Prophet, ''Observe that between us,
and whosoever takes usuiy, no engagements
exist." — The compiler of the Hedaya re-
marks that what Mohammed has advanced
in the Jama Sagheer, "If a Christian man
marry a Christian woman without any
dower" — and so forth, — may be understood
in two ways, — one', the absolute exception of
a dower (that is especially stipulating that
there shall be none; ; and the other, merely
the omitting to mention it in the contract.
Some have said, concerning this case, that
where the dower is either made to consist of
unlawful articles, or is not mentioned in the
contract, there are two traditions ; according
to one, the woman is entitled to her proper
dower (as maintained by the two disciples),
and according to the other, nothing whatever
is due ; and it is from this variance on the
traditions that the difference of opinion arises
between Hanetfa and Muhammed.
Of the dower of infidel wbiects, where it
consists of wine or pork — IF a Zimmee marry
a Zimmeed, making the dower to consist of
wine or pork, and one or both should after-
wards embrace to the faith, yet the woman
is nevertheless entitled to the unlawful
article settled upon her, although the con-
version take p'ace previous to seisin, pro-
vided the unlawful article had been identi-
cally specified ; but if this be not the case,
the woman, in the instance of wine, is to
receive the estimated value of such wine, or
in that of pork, her proper dower — This is-
according to Haneefa. Aboo Yoosaf alleges
that the woman is entitled to her proper
dower in either instance. Mohammed, on
the contrary, maintains that she is in either
instance entitled to the estimated value of
the unlawful article specified, whatever it
be. — The reasoning upon which the opinion
of the two disciples proceeds in this case is
that by seisin, 'or possession, the right in
the thing possessed becomes fully established
and confirmed ; seisin, therefore, is similar
to a contract of marriage, since, like that,
it produces a right which had not before
existed ; and consequently the seisin of
wine or pork by a Musslima, as a dower, #
illegal, the same as a contract itself 'includ-
ing a specification of such unlawful articles,
as a dower ; and this, whether those articles
may have been indentically specified, or oni/
58
MARRIAGE.
[VOL. I.
generally mentioned.— Aboo Yoosaf further
remarks that as, where the time of seisin is
connected with the time of the execution of
the^contract, if both parties were then to
embrace the faith, her proper dower would
become due to the woman, so in the present
instance likewise : —with Mohammad on the
other hand, the mention of the unlawful
article, as a dower, is approved; as being
held, by the sect of the parties, to be pro-
perty ; but yet the delivery is forbidden, on
account of the parties having embraced the
faith ; wherefore the value becomes obliga-
tory upon the husband, the same as where a
man makes dower of a slave who dies before
the delivery. — The argument of Haneefa on
this subject is that a dower identically
specified becomes the property of the woman
on the instant of the contract of marriage
being executed, for which reason it is that
a woman is empowered to make what use
of her dower she may think expedient, by
giving it away, or transferring her property
in it, either for or without a return ; and the
only difference that possession makes is, that
the husband is thereby exonerated from
responsibility with respect to it, this being
simply a transition of it from the possession
of the husband to that of the wife, which
does not become prohibited here by the Islam
of the parties, any more than in the case of
a claim of restitution of wine which had been
forcibly seized :--that is to say, if a person
were to make a forcible seizure of wine from
a Zimmee, and this Zimmee should after-
wards become a Mussulman, he is neverthe-
less still at liberty to claim* restitution of
the wine thus forcibly seized ; and so like-
wise in the present case (contrary to a case
where a Zimmee purchases wine or a hoc:,
and afterwards becomes a Mussulman before
he has taken possession of his purchase : for
in this case it is unlawful for him to take
possession, and the bargain becomes void,
because, in sale, a right of transaction with
respect to the property sold does not take
place until after seisin is made of it by the
purchaser, which becomes forbidden by his
subsequent Islam) : — but where the unlawful
article is not identically specified, nothing
but actual possession can establish a pro-
perty in it, and this becoming prohibited
by the subsequent Islam of the party, and
being thereby precluded, the price or value
of the pork would not be due to the
woman, because the receipt of that u> the
same as of the property itself,— hog's flesh
being of the class of things denominated
Zooatal-Keem, whereas win% is not of this
nature, being of the class of ZooataMmsal,
for which reason, if the husband were to
offer the value before Islam, the wife would
be compelled to accept of that of the pork,
but not of that of the wine.— It is to be
fe marked that if the husband, in the present
instance, were to divorce his wife Lefpre
consummation, the same difference of opinion
exists among our doctors ; those who (as
Labovc) determine for a proper dower, decree-
ing her a present ; and those who make the
value of the article obligatory upon the hus-
band, decreeing her an half of such value.
CHAPTER IV.
OF THE MARRIAGE OF SLAVES.
Slaves cannot marry without the consent
of their proprietor. — THE marriage of a male
or a female slave is not lawful without the
master's consent. Malik has said that the
marriage of a male slave is val«d indepen-
dent of the consent of his master, because he
is competent to pronounce divorce, and is
therefore equal to the contracting of mar-
riage. The armiments of our doctors on this
subject are twofold : — FIRST, a precept of ihe
Prophet says, "Whatever slave marries with-
out his owner's consent is an adulterer ;" —
SECONDLY, marriage, with respect either to
male or female slaves, is a blemish,* on
which account they are not at liberty to
enter into such a contract without the appro-
bation of their owners
Nor Mohatihs, —NEITHER is it lawful for
a Mokatih to enter into a contract of mar-
riage without his owner's consent ; because a
slave of this description, although he be, by
virtue of his contract of Kitabat, rendered
free with respect to acquibtion, of necessity,
lie remains with respect to matrimony, sub-
ject to the laws of bondage. And, fur the
same reason, it is not lawful for a Mokatib
to contract his own male slave in marriage
without the consent of his owner.
Although such may contract their own
female slaves in marriage nar Mokatibas,
although they have the icwie privilege. — Bur
he may lawfully contract his female slave, as
hence arises an acquisition, in ht-r tlower. —
In like manner, it is not lawful for a Moka-
tiba to merry without her owner's consent ;
but* she may liwfully cantract her female
slave«in marriage, as hence arises an acquisi-
tion to her as above. Neither is it lawful for
a Modabbir or Am-Walicl to marry without
their owner's consent, becasue his authority
with respect to them still exists.
A slave may be sold for the discharge of
his wife's dower. — IF a slave marry with his
master's consent, the dower (to the woman
whom he marries) is a debt upon his person,
for the payment of which he may be sold,
because the debt has become obligatory upon
t^e slave on account oi the existence ot its
cause (namely, marriage, proceeding from a
competent person), and the obligation of the
debt exends to the master also, he having
consented thereto, and accordingly devolves
upon him, in order that the creditor may be
protected from injury, as in the case ot debts
contracted by a slave in mercantile dealing.
And a Modabbir or Mokatib are to dis"
charge it by labour —A MODABBIR or Mokatib
(in case of marriage) must discharge the
*As tending to depreciate their value.
BOOK II —CHAP. IV,]
MARRIAGE.
dower by labour, as not being liable to be
sold, because the property in them is not
capable of being transferred from one to
another ; this debt of the dower, therefore ;
is to be discharged by their acquisitions, so
that the wife may not be subject to loss ;
but their persons are not liable to be attached
for payment.
How far a master's desiring his slave to \
divorce his wife, is an argument of his assent
to the slave's marriage. — IF a slave marry
without his owner's consent, and the latter
afterwards should say to him, "divorce"
[your wife] or "put her away," his [the
[owner's] assent to the marriage is not im-
plied, because such a mode of address bears
the construction of obstructing or resisting
execution of the contract, as the terms
divorce and separation apply to that, as well
as to the dissolution of the contract of mar-
riage already executed . it is therefore to
be thus construed, either because this is
suitable to the state of disobedient and
refractory slave, or because the prevention
of a marriage is an act of less magnitude
than the assenting to it. But if the owner
were to say to his slave, "repudiate her by a
divorce reversible," this implies his assent to
the marriage, because a reversible divorce is
not supposed but in a case of marriage
[already executed], wherefore assent to the
marriage, is hereby signilied.
Obligation of the dower in a case of invalid
mariiage, contracted by a slave at tne desire
of his owner. — IF a person desire his slave to
marry such a female slave, and he accordingly
wed her by an invalid marriage,* and have
carnal connexion with her, Haneefa holds that
the slave shall be sold for the discharge of her
dower. The two disciples, on the contrary,
maintain that the dower shall be exacted of
him (the slave) upon his becoming free. —
The foundation of this difference of opinion
is that, with Haneefa, assent applies equally
to a legal and to an invalid marriages and
consequently the debt [of the dower] is upon
the owner ; but with the two disciples, assent
applies to a valid and regular marriage only,
wherefore the debt is not upon the owner
(whence it is that it may be required of the
slave on his becoming free at any subsequent
period), for they argue that the intent of
marriage is to guard against incontinence,
and that end is obtained^ by regular, but not
by invalid marriages, wherefore if a person
were to make a vow that he will not marry,
his vow applies solely to regular marriage :
contrary to a case of sale ; that is to say, if a
person were to empower another in sale, such
power extends both to regular and to invalid
sale, a variety of privileges being therein in-
volved, sucn as the right of emancipation,
and so forth. Aboo Haneefa, on the other
hand, argues that the word "marry" [in the
owner's desire expressed to his slave] is
*That is, under such circumstances of
affinity, &c , as invalidates the marriage.
general, and is therefore to be considered ts
having a general application, the same as
sale ; and there are a variety of points in-
volved in an irregular, marriage, as well as in
sale, such as genealogy [of children born in
such, marriage], and the obligations to the
payment of dower, and to the observance of
Edit ; and with, respect to the instance of a
vow, as produced by the two disciples, it is
not admitted as applicable by Haneefa.
Case of an indebted Mazoon, contracted
in marriage by his owner. — IF a man con-
tract his Mazoon, or privileged slave, who .is
a debtor, to any woman in marriage, it is
lawful ; and the wife [in virtue of her right
to her dower] becomes a joint creditor with
the others ; that is to say, the slave is to be
sold for the discharge of all debts, and
the price arising from the sale is to be divided
between his wife and the other creditors, in
propoition to their respective claims. The
compiler of the Hedaya observes that this
rule holds only where the marriage has been
effected upon a tylihr Misl, or less ; but if the
dower exceed the Misl proportion, the other
creditors are, in that case on an equality with
the wife, so far as the amount of her Mihr
Misl, or proper dower, and the payment of
the excess must be postponed till after the
discharge of the debt to the creditors ; the
ground of which is, that the owner's autho-
rity over his slave, with respect to matri-
mony, is founded on his having the property
of his person (as shall be hereafter ex-
plained), and that right of property still
remaining, the marriage of the slave is
completely legal and valid.
OBJECTION.-*- In consequence of the marriage
the right of the creditors is rendered null both
by design, an-1 in effect ; wherefore it would
be requisite that, in discharging the debts of
the Mazoon, those du« to the first creditors
ought to be first paid; whereas it is other-
wise in this case, for they are all put on an
equality.
REPLY. — The right of the creditors is not
designedly rendered null by the marriage :
but the marriage being held valid, the debt
of dower is due in consequence of the exist-
ence of its cause ; and there is nothing to
invalidate its existence ; the dower, there-
fore, is the same as a debt of damage ; — that
is to say, where a Mazoon slave, being
already in debt, destroys or wastes the pro-
perty of a stranger, the latter comes in as a
joint creditor ; and the slave is as a sick
debtor ; that is to say, if a sick person, being
in debt, rnarry a woman, she comes in as a
joint creditor with the others, to the amount
of her proper flower, and so in this case like-
wise.
A master may withhold permission from
his female *lave to dwell in the house of her
husband — IF a master contract his female
slave in marriage to another man, he is not
under any obligation to send her to the hodse
of her husband, she still remaming'attached
in service to her master ; and the husband
shall be desired to visit his wife at^ppor-
60
MARRIAGE.
[Vor. I.
tune seasons, at her masters house, because
his right to her service still remains in virtue
of his property in her ; and if he were under
any obligation to send her to the house of her
husband, his right would be rendered null.
And if he so permit, her husband must
support her, but not otherwise. — AND if the
master should give permission to his female
slave to dwell in the house of her busband,
her subsistence and lodging are incumbent
upon the husband ; but if he should not
permit this, nothing whatever is incumbent,
because subsistence is the recompense for
the matrimonial restraint ; and if she live
in the house of her husband, she is under
this restraint, but not otherwise. And if the
master thus permit her to dwell with her
husband, still he is at libearty, notwithstand-
ing, to call for and require her legal service
at any subsequent period, because his right
of usufruct still continues, in virtue of his
property in her ; and this right is not relin-
quished by such permission any more than
by her marriage.
THE compiler of the Hedaya remarks
that Imam Mohammed has said, "A master
contracting his male or femile slave in mar-
riage is lawful/' without making any men-
tion of the consent of the slave to such
marriage, which shows that this consent is
not a condition ; and such is the opinion of
our doctors, who hold that a .master is em-
powered to contract his slaves in marriage
by compulsion ; that is to say, that the mar-
riage ot such, where it is contracted by the
master, holds good independent of their con-
sent^ According to Shafei, wa master is also
empowered to contract his male slave in
marriage by compulsion ; and there is also
an opinion of Haneeia lecorded to this effect ;
this doctrine proceeds upon the principle
that marriage is a natural privilege of man,
and a slave is a possession of his owner by
the laws of property, but not by the laws of
nature ; wherefore the master is not endowed
with any absolute authority with respect to
his marriage, contrary to the case of a female
slave, whose owner, as being entitled to the
carnal use of her person, is at liberty to
transfer the same to any other. The argu-
ment of our doctors on this subject is that a
master, in causing his slave to inairy, acts
with a viexv to the preservation of his pro-
perty, because, by marrying, the slave is
withheld from the commission of whoredom
which is a cause of destruction or damage ;*
the master, therefore, is fully empowered
with respect to the marriage of his male
slaves, the same as of his *re males ; but he
is not thus empowered with respect to his
Mokatib, or Mokatiba, because these are, as
to privileges the same as free persons, and
their consent is therefore a condition ; for if
it were otherwise, their privileges and powers
of action would be totally annulled.
'•'On account
attends it.
of the punishment which
An owner slaying his female slave before
consummation has no claim to her dower. —
IF a man marry his female slave to another
person, and afterwards put her to death,
before her husband has had carnal connex-
ion with her, no part of the dower whatever
is, in this case, due from the husband, ac-
cording to Haneefa. The two disciples hold
that, in this case, the dower is due from the
husband, in the same manner as it would be
if the female slave had died a natural death ;
and the foundation of their opinion is that a
person who is slain dies by his own fate,
death implying merely the termination of
life, and life being terminated by the act
of killing. The case, therefore, is here the
same as if the female slave had been slain
by a stranger ; that is to say ; if the female
slave had been slain by a stranger, her dower
would remain due fiom the husband, and so
also in the present case. The argument of
Haneefa is, that the owner of the slave, who,
as being her Mawla, claims the consideration,
has by his act prevented the delivery of the
return (to wit, the person of woman),
and consequently his right to the considera-
tion is extinguished, in the same manner as
1 when a free woman apostatizes ; that is to
say, if a free woman apostatize fiom the
faith before she has admitted her husband
to the carnal embrace, no dower whatever is
due to her, she fby her act or apostasy] having
prevented the delivery of the return ; and so
likewise in the present instance. With re-
spect to what is advanced by the two dis-
ciples, that "a person who is slain dies by
his own fate," it may be answered, that
although this be admitted, yet it holds \vjth
rtsptct to a future state only, ant) not with
respect to this world, murder, according to
worldly institutes, being in the eye of the
law considered as an act of destruction, in-
ducing retaliation, fine, and so forth ; and
it i$ therefore to be regarded as an act of
destruction with respect to the dower, that
also being a temporal institution.
The dower of a free woman is due, although
she kill herself befote consummation — IF a
free woman kill herself before she has ail-
nutted her husband to carnal connexion,
her dower is nevertheless due from him,
contrary to the opinion of Ziffer, who con-
ceives an analogy between this cas»e and that
of a woman apostatizing before carnal con-
nexion, or of a master slaving his female
slave ; for he argues that no dower whatever
is here due from the husband, as the wife to
whom the consideration belongs, has by her
act of suicide, prevented the delivery of the
return. The arguments of our doctors are
that, in worldly institutes, no regard is paid
to the offence committed by a man upon his
own person, wherefore suicide is to be held
as dying a natural death, contrary to the
case of a man killing hij female slave, that
being an act to which worldly institutes
have regard, and, as such, subjecting the
perpetrator of the murder to the perfor-
mance of acts of expiation.
BOOK H.-CHAP. IV.]
MARRIAGE.
61
IF a man marry the female slave of another
and be desirous of committing the act of Azil
with her (i.e. emissio scminis in ano, vel
inter Mamillas), this shall depend upon her
master's permission, according to Haneefa ;
and such also is the Zahir Rawayet. Accord-
ing to the two disciples, the permission to
this act rests with the slave, because [as
being the man's wife] carnal connexion is
her right ; but by Azil that carnal connex-
ion which is her right is frustrated. Her
consent, therefore, is a requisite condition to
the legality of the act, the same as that of a
free woman, contrary in the case of a female
slave, who is the property af the person
having such connexion with her,* because
cainal connexion is not her right (whence
it is that she is not entitled to claim the
carnal act of her master or owner), and
consequently her consent is not a condition.
The principle upon which the Zahir Rawayet
proceeds in this case is, that the act of Azil
defeats the intention of marriage, which is
the production of children, arid this is a
right of the master ;f whence it is that his
consent is a condition, and not that of the
slave. And heiein appears a distinction
between the state of a free woman and that
of a slave fin mairiage"].
A female shite, upon obtaining her frec-
dnm, has a right to annul the mart idge con-
tract.— IF a female slave marry with her
owner's consent ,| and afterwards become
free, she is then at liberty either to break off
the marriage or to continue it, whether her
husband be a slave of a freeman, because,
upon Harrf era (who was a Mokatiba of Aysha)
becoming free, the Vrophet said to her, "You
aie now mistress of your own person, and
therefore at your own disposal," which tra-
dition evinces that she is at liberty as above,
whether her husband be a slave or a freeman,
since the cause <>f her right of. opinion, as
there mentioned (that is ,her being mjstress
of her own person), exists equally yi either
case. *Shafei maintains that she has no such
right of option where her husband is a free-
man. The tradition above quoted, however,
is in proof against him ; moreover, the power
of the husband with respect in his wife is
greater after her emancipation that it was
before, because before she was free he had
power to pronounce only a double sentence
of divorce, whereas afterwards he is autho-
rized to pronounce three divorces, on which
account she is justly empowered to set aside
the contract of marriage; so as that her hus-
band may not obtain any additional autho-
rity with respect to her in consequence of
her emancipation. And the rule is the same
where a Mukatiba marries with her owner's
*As where a piaster has connexion with
his female slave in virtue of propriety.
fBecause he has a propriety in the chil-
dren born of his slave.
JThat is, at his instigation.
consent, and afterwards becomes free. Ziffer
says that a Mokatiba has no right of option,
because the contract of marriage preceded
by, and was excuted with, her especial con-
sent, and she receives the dower,* and such
being the case, she can have no subsequent
right of option, contrary to the case of an
absolute slave, whose consent in marriage in
not regarded.- -The argument of our doctors
is that the reason for her right of option (to
wit, the accession, to the husband, of an
additional authority with respect to her)
appears in the case of a Mokatiba, the same
as in that of an absolute slave, for before
freedom the term of her Edit was only two
menstruations, and she was subject to no
more than a duplicate sentence of divorce ;
whereas, in her state of freedom, her Edit
includes three menstruations, and she is sub-
ject to three divorces.
But not otherwise — IF a female slave
marry without her owner's consent, and be
afterwards made free, her marriage then
becomes legal and valid, because^ being of
sound miiul and mature age, she is compe-
tent to the declaration and acceptance ;
moreover, the illegality of the marriage was
on account only uf the owner's right, which
being done away, it lemaiiis lawful ; and the
woman has not any option, as in the former
case, because the marriage is not in this case
valid until after ^mancipation, which conse-
quently occasions no accession of power to
the husband ; and hence the case is the same
as if she were to beslow herself in marriage
after emancipation.
Case of p man marrying a female slave
without ht.r ownci's consent. — IF a man
marry a female slave, without her owner's
concurrence, on a dower of a thousand
Djrms, her proper dower being one hundred
Dinns only, and he have carnal connexion
with her, ami her owner afterwards emanci-
pate her, the specified dower goes to him
[the owner], because the husband has here
obtained possession of an article which was
the property of the owner, who is therefore
entitled to the return ; but if the marriage
be not consummated until after emancipa-
tion, the specified dower goes to the woman,
because in this case the husband appears to
have obtained possession of an article which
was her property, and she of course is en-
titled to the return, since tne mariiage, in
consequence of her emancipation, takes
effect from the period of the contract ; and
hence the specification of the dower is valid,
and that which wa« specified is incumbent ;
and accordingly, no other dower is due on
account of carnal connexion previous to the
efficiency of the marriage, ...here that has
been suspended [upon the event of the
owner's approbation, or the slave's freedom],
because the marriage, deriving its legaltiy
•In opposition to the case of an absolute
slave, whose dower is received by her Mawala
or proprietor, and by him appropriated. '
62
MARRIAGE.
[VOL. I.
from the original contract, its efficiency is
considered as existing from the instant the
marriage takes place ; nothing, therefore, but
one dower can be due.
Case of a father cohabiting with the slave
of his son.— IF a father enjoy the female
slave of his son, and she produce a child,
and he [the father] claim it, the slave be-
comes his Am Wai id, and he is answerable
to his son for her value ; but he is not so for
her dower, because a father being at liberty
to possess himself of the property of his son,
whenever that may be requisite to his own
preservation, it follows that he may possess
himself of her son's slave, where he requires
her for the preservation of his progeny, since
he thereby provides for his own continuance,
he being virtually continued in his offspring j
but the preservation of his progeny being a
matter of less immediate importance than
that of his life, he must pay a price in ex-
change for the slave, whereas he might take
his son's victuals without paying any price.
— And here the father's property in the slave
is established antecedently do his claim of
the child, possession being a condition essen-
tial to such claim, which does not hold good
unless he be either fully possessed of her in
all respects, or at least have a right of pos-
session in her ; and neither of these exist in
him (insomuch that he might legally marry
her) ; - it is therefore require that his pro-
perty in her be considered as existing a
priori ; and this being admitted, the father
appears to have had carnal connexion with
his own slave, and consequently is not sub-
ject to the payment of an A&r. — Ziffer and
Shafei maintains that the slave's dower is a
debt upon the father ; because they hold that
his property in her is a consequence of his
Isteerad, 6r claim of the child, —that is, that
his right of possession is thereby established
the same as in a partnership slave ; now the
effect of a thing, is not found until after that
thing has taken place ; and such being the
case, as the carnal connexion appears to have
been had, in the first instance, with the
property of another, a dower is due.
Gate of a son contracting his female slave
in marriage to his father. — IF a man marry
his female slave to his father, and she pro-
duce a child, she does not become Am-Walul
to the father, neither is her price a debt
against him, because he is answerable for
her dower ; and the child born of her is free,
such a marriage being approved by our doc-
tors.—This is contrary to the doctrine of
Shafei, according to whom a marriage of
this kini is illegal. The a^ument of our
doctors is, that the slave is not at all the
property of the father, because, the sou
being her proprietor in every respect, it is
impossible that the father should be so in
any view ; the son, moreover, is endowed
With privileges [in regard to her] which do
not appertain to his father, such as selling
or bestowing her in marriage or emanci-
pitiog her, which evinces that the father is
not in any retpect her proprietor, although,
in a case where he has carnal connexion
with her, punishment drops, on account of
erroneous possession ; and his marriage with
her being admitted as legal, the conservation
of his deed is effected by means of marriage,
[not by means of Isteelad], so that his pro-
perty in her is no way established [by the
circumstance of her bearing a child to him],
and consequently she does not become his
Am-Walid — And here the father is not
answerable for the value either of her or of
her child, as he does not become proprietor
of either ; but he owes her dower, he having
| taken that upon him by his marriage ; and
i the child is free, because his owner would
otherwise be his brother ; and he is virtually
emancipated of course.
The marriage of a free woman with a
slave ?i annulled by tier procuring his eman-
cipation.— IF a free woman, being the wife
of a slave, should say to the proprietor of
such slave, "Fmancipate him on my behalf
for a thousand Dnms," and he accordingly
emancipates him, the marriage is annulled.
— Ziffer maintains that it is not annulled. —
Our doctors argue, on this occasion, that the
slave obtains his freedom from the woman,
whence it is that the right of Willa rests
with her, and also, that if she were under
obligation to peiform an expiatory act, and
intend her husband's release to stand as
such, her expiation is thereby fulfilled. —
With Zirler the emancipation is held to pro-
ceed Irom the owner, because the woman has
required him to emancipate the slave "on
her behalf/' which is absurd, since manu-
mission connot take effect upon a slave who
is not the property of the emancipator ; con-
sequently, her requisition being improper,
emancipation is to be regarded as proceeding
solely from the owner.— Our doctors, on the
other hand, say, that there is one mode in
which the requisition of the woman may
be rcnderecf proper, viz. by considering her
property in the slave to have existence pre-
vious *to emancipation, as an essential (for
her right of possession is a condition of the
validity of emancipation on her behalf), and
sucjh being the case, her requisition ' 'eman-
cipate him, &c" bears the construction of
her desiring the owner first to transfer to
her his property in the slave for such a
consideration, and then to emancipate him
"from her," and the reply of the owner,
' 'I have emancipated him," is as if he were
to say that he had transferred him, and then
set him free "from her ;" and upon the
woman's property in him being established,
it necessarily follows that the marriage is
annulled, the marriage of a free woman
with her slave being illegal, since possession
by right of property is irreconcilable with
possession by matrimony. — But if the woman
were to say to the owner of her husband,
"emancipate him from me/' without men-
tioning any consider atiorT, in this case the
marriage is not annulled, and the Willa
rests with the master. This is according to
Haneefa and Mohammad. — Aboo Yooaaf says
BOOK II.— CHAP. V.]
MARRIAGE.
63
that this and the preceding case are the
same, and that the marriage is here likewise
annulled, because in this instance also the
transfer must be supposed to have previously
taken place (though without any return), in
order that the act may be lawful.
OBJECTION — Transfer of property, without j
a return! amounts to gift, and that is not j
valid without seisin ; now here seism does j
nnt appear ; consequently how can the trans- j
fer be valid ? j
REPLY — Seisin is not in this case regarded, j
any more than in Zthar ; thus, if the expia- i
tion of Zihar were in-mmbent upon any per- !
son and he were to desire another to give j
the victuals,* as from him, and the other do j
accordingly, the gift is understood indepen-
dent of seisin ; and no here likewise — The \
argument of Hanoefa and Mohammed is that
seisin beini* declared, in the ordinances of .the
Prophet, to be a condition of cjift, cannot be
dispenesed with; neither can it be established
merely by supposing or assuming it, as an
essential, because seisin is a sensible act, —
contrary to salt:, which is a l<»ijal transacation ;
and in the case of expiation, as ciled by Aboo
Yoosaf, the poor stand as the deputies of the
expiator, in the seisin of the victuals, but
the slavcdn the case here treated of) cannot
stand as the wife's deputy, because nothing
is received by him, $>v> as to constitute him
her deputy in t>eism.
CHAPTER V.
OF THE MARRIAGE OF INFIDELS.
The marriage of an InfiM couple is not \
dissolved by their jointly embracing the faith.
— IF an Infidel man and woman. marry with- !
out witnesses, or whilst the woman is, in her '•
Edit from a former Infidel husband, ^nd this
be no objection by the rule of their own sect,
and they afterwards embrace the faith to- |
gethcr, their marriage remains valid. — This '
is according to Haneefa. — Ziffer maintains 1
the marriage to he invalid in either case— !
(that is to say, whether it be entered into I
without witnesses or during the woman's |
lulit), but that Infidels are not liable to be ,
called to an account until they embrace 1
IbUm, or until they appear to the law, — that!
is to say, carry the matter before the judge, j
— The two disciples concide with Haneefa in '
the first case | the defect of witnesses], but
agree with Ziifer in the last [the KditJ. The
argtment of Ziffer is that the word of the
sacred writings extends to all men alike, and
consequently to Infide's ; but the parties, as
being Zirnmees, are not liable to molestation ;
b'.n this exemption from molestation is an
effect of indulge/ice, and does not proceed
from any idea of the marriage being legal
* Book of Divorce, Chap. IX.
and of course, where it becomes a subject of
litigation* or the parties become Mussulmans
separation must ensue, the illegality of their
marriage still remaining. — The arguments
of the two disciples are that the illegality of
Poliandry is universally admitted amongst
Mussulmans, and that Infidel subjects have
engaged to follow the temporal law in all
such points as are universally admitted ; but
with respect to the illegality of marriage
without witnesses there subsists a difference
of opinion among the Mussulmans ; and In-
fidels have engaged only to follow such tem-
poral law of Islam as are universally ad-
mitted, and not such as are disputed ; hence,
in the case of t'olianday a separation becomes
necessary, but not in the case of marriage
without witnesses. Haneefa argues that the
marriage is not rendered illegal by the in-
junctions of the law, because those injunc-
tions arc not addressed to Infidels ; neither
does any reason exist why the Kdit should
be obligatory on account of the right of a
husband who has no faith in the necessity of
it ; contrary to a case whcie the Infidel wo-
man is the wife ot a Mussulman, because he
has faith m the necessity of Kdit : and there-
fore the illegality ot her marriage [with the
In Fidel] should in thr. i ase be established, on
account of Ins [the Mussulman's) right ; and
the marnaqe being valid abimtiu, on account
of no illegality appearing therein, continues
to exist a b such, since U>tunony is not a con-
dition with rc&pi'i'i to the period of its exist-
ence : and the UK unist.mivs of appeal to the
law 01 of conversion to the iaith, take place
during the existence ot the marriaqe : neither
does the ciuumstance of the Edit forbid the
continuance ot the mairiagc ; as when a man
(I'm mstdiKfJ has carnal connexion, errone-
ously, «vith the iviO of annlhrr, in which
case an Edit is incumbent upon the woman,
but the marriage continues to hold good.
Unless it he a marriage within the pro-
hibited degree* --!F a Majoosee wed his
mother or his daughter, and they afterwards
become Mussulmans, they arc to be separated.
This h.)lds with the two disciples, because a
maTiage within the prohibited degree is
universally admitted to be null, on which
account the rule extends to Infidels as well
as Mussulmans (as bcfoie mentioned, from
thpm, in the case of h'dit), and the parties,
upon their conversion, being necessarily
liable to molestation on account of such mar-
riage, it follows that a separation must take
place upon that event ; arid it holds also with
Hanetia, hecausf, although such marriage
be deemed lawful HI the Rawayet Saheeh,
yet the circumttance of the wife being within
the prohibited degrees forbids the continu-
| ance of it after conversion, on which account
| separation is to talo- place : contrary to the
circumstance of Edit, which (according to
Haneefa) does not forbid the continuance
of the marriage.
But if une of them only be converted, a
separation takes place.- ~\f only one>ofthe
parties be converted to the faith, a sepa**-
64
MARRIAGE.
[VoL. I.
tion follows ; but if one only appeal, Haneefa
holds that separation does not take place :
contrary to the opinion of the two doctors,
according to whom separation take, place in
this case also.-The reason, with Haneefa,
for making this distinction between these
two ^** is, thatthe right of one party is
not invalidated by the appeal of the other,
as the faith of the one is not altered by the
appeal of the other: but where 'dne of the
parties becomes a Mussulman, although the
faith of the other be not altered by that
event, yet the faith of an Infidel is not suffi-
cient to controvert or oppose the Islam of a
Mussulman, as Islam is the subjector and
carrot be subjected. -But where both the
parties enter into a litigation it is univer-
sally acreed that separation takes place, be-
cause this mutual litigation amounts to both
authorizing any third person to effect a gepa-
ration between them, which if they were to
do the separation so effected would be legal.
Apostates are incapacitated from marry-
in* —IT is not lawful that an appostate marry
any woman, whether she be a believer an
Infidel, or an apostate, because an apostate
is liable to be put to death ; moreover, his
three days of grace are granted m order that
he may reflect upon the errors which occasion
hisapostacy ; and as marriage would inter-
fere with such reflection, the law doe* not
lirner, it is not lawful that a
female apostate marry any man. whether
Mussulman or Infidel, because she is impri-
soned for the purpose of reflection (as above),
and her attention to her huslfand would in-
terfere therewith ; moreover, this circum-
stance of her imprisonment necessarily pre-
vents the matrimonial intercourse ;--now
marriage is lawful, not in respect to itself,
but to its ends, and consequent y, where
these are def.ated, it cannot be deemed in
herter or mother be Mu.ul-
n, their children are Alussulmans.-WHEN-
*K either the husband or the wife is a
Mussulman, their children are to be educated
£ the Mussulman faith. And if either one
or other [of an Infidel couple] become a Mus-
sulman and they have infant children, those
«eTo be considered as Mussulmans in virtue
of the Islam of one of their parents, because
this is tenderness to the children.
Or where one is of a superior order of
Infidels, and the other of an inferior, their
children are of the ™P"'" ^r'~lF ™e
of a married couple be a Kitabee, and the
other a Majoosee, their chifdren are to be
regarded as Kitabees, because, in this also
[here is a degree of tenderness with respect
to the children, as a Majoosee is worse than
Khabee. Thi. is contrary to the doctrine
who holds the infidelity of a
of on< of the parties.
magistrate is to require the other to em-
brace the faith, and must separate them, in
case of recusancy.— WHEN the wife becomes
a convert to the faith and her husband is an
Infidel, the magistrate is to call upon the
husband to embrace the faith also ; if he
accede, the woman continues his wife ; but
if he refuse, the magistrate must separate
them ; and this separation, with- Haneefa
and Mohammed, is a divorce.— In like
manner, if the husband become a Mussul-
man and his wife be a Majoosee, the magis-
trate is to call upon her to embrace the faith
also ; if she accede, she remains his wife ;
but if she refuse, th* magistrate must
separate them ; but this separation is not
divorce. — Aboo Yoosaf has said that the
separation is not divorce in either case. —
What is here advanced of the magistrate
calling upon the party to embrace the faith,
is an opinion of our doctors, — Shafei main-
tains that the magistrate is not to make any
such requisition because this is molestation
and we have engaged not to molest Zimmees,
as they have entered into a contract of sub-
jection to us.
OBJECTION — It would hence appear that
the matrimonial right of possession should
not terminate in this case ; whereas Shafei
also holds that it is terminated.
REPLY. — The matrimonial intercouise is
not admissible between a Mussulman and an
Inridel ; for which reason it is that the n.a-
trimonial right of possession is terminated
on the instant of conversion, where either
party embraces the faith, before consumma-
tion, because in this case the right has not
been confirmed ; but, on the other hand, if
conversion take place after consummation,
the termination is delayed until the end of
three menstruations, because the right has
on this occasion been confimed ; as holds in
divorce. — The argument of our doctois is,
that, upon cither party embracing the faith,
the tnds of ma mage are defeated, on account
of difference of religion ; hence it is absolutely
necessary that recourse be had to sorrw means
by which a separation may be effected ; —
now Islam, as an- act of piety, is incapable
of being rendered a cause of separation ; the
Infidel party is therefore to be called'upon
to embrace the faith, in order that the ends
of marriage may be answered by conversion,
or that a cause of separation may be estab-
lished in case of refusal. The reason upon
which Aboo Yoosaf founds his opinion is that
the occasion of separation, to *it, refusing
the faith, may proceed irom either the man
or the woman ; a separation, therefore, on
account of such refusal, is not divorce, any
more than on account of a right of property ;
—that is to say, if, of husband and wife,
either become the owner of the other, a
separation ensues ; but this separation is not
divorce ; and so also in the present case. — In
reply to this, Haneefa and* Mohammed argue
that the husband, when he refuses the faith,
wilfully withholds the customary benevo-
lence from his wife, where he has it still in
his power to continue it to her, by becoming
BOOK I L— CHAP. V.]
MARRIAGE.
65
a Mussulman ; and such being the case, the
magistrate acts merely as his substitute, in
effecting the separation ; in the same manner
as where a husband is impotent, or deprived
of his penis; but a woman is not empowered to
divorce, for which reason the magistrate can-
not be regarded as her substitute in effecting
the sparation when she has refuse d the faith.
IT is to be observed, that where the separa-
tion takes place on account of the woman's
refusal of the faith, she is still entitled to
her dower, provided her husband has con-
summated the marriage, as in this case her
right has been confirmed by the carnal act;
but if the marriage should not have been
consummated she cannot, receive any dower,
because the separation has proceeded from
her, and her ritzht to the do ver is not con-
firmed ; thus the case here is the same as
where a woman apostatizes or admits the
son of her husband to carnal connexion.
And if the conversion of either happen in
a foreign country, separation takes place upon
the lapse of the woman's term of probation.
— IF the wife embrace the faith in a foreign
country, and her husband be an Infidel,—- or,
if a foreigner there becomes Mussulman, and
his wife be a Majooseea, — the separation
between them does not take place until the
lapse of three terms of the wife's courses,
when she becomes completely repudiated. — •
The reason of this is, that Islam cannot be
made an occasion of separation (as has been
before observed) : and requiring the
other party to embrace the faith is imprac-
ticable, as the authority of the magistrate
does not extend to a foreign land, nor is it
acknowledged there ; yet separation is in-
dispensable for the removal of evil ; the
condition, therefore, of separation (to wit,
the lapse of three terms of the woman's
courses), must stand in the place of separa-
tion effected by the magistrate ; and in this
rule no distinction is made between a woman
enjoyed, and one unen joyed. -—Shafei tnakes
a distinction, on this occasion, between a
woman enjoyed and one unen joyed, in the
same manner as he distinguishes between
them when they reside in a Mussulman terri-
tory, and one of them embraces the faith;
as has been before explained
If the wife be an alien, she is not to observe
an Edit, from separation, in csnsequence of
her husband's conversion. — WHEN a separa-
tion takes place between husband and wife,
in consequence of the conversion of the former,
and the latter is an alien, she is not subject
to any observance of Edit, according to all
the doctors. — Haneefa holds the rule to be
the same, where the woman becomes a convert
and her husband i» an alien ; that is, that
the woman, in this case also, is not subject
to any observance of Edit but the two dis-
ciples maintain that she must here observe
an Edit the same as would be incumbent
upon her if she Were to come into the Mus-
sulman territory; as shall be hereafter
demonstrated.
The conversion of the ' husband of a
Kitabeea does not occasion separation. — IF
the husband of a Kitabeea become a Mussul-
man, their marriage still endures, because
the marriage of a Mussulman with a Kitabeea
being legal ab initio, its continuance is so
a fortiori.
Case of a convert removing from a foreign
land into a Mussulman territory. — IF either
husband or wife become a convert to the faith
in a foreign country, and afterwards remove
thence into the Mussulman territory, a
separation takes place between them : — this
is contradicted by Shafei : — but if either
party be brought, as a captive, out of the
foreign country, separation takes place
between them, according to all the doctors :
if, however, both the ' parties be brought
captives together we hold that there is no
separation ; whereas Shafei says that separa-
tion takes place.— Hence it may be collected
that the circumstance of the parties residing
apart in different countries is held to be a
cause of separation by our doctors, but not
that of their capture ; and that Shafei main-
tains the reverse of this opinion — The argu-
ment of the latter is that separation of
country is a cause of termination of autho-
rity, but has no effect in occasioning an
absolute separation in this case, any more
than where an alien resides under protection
in a Mussulman territory, whilst his wife
remains in her own country ; or where a
Mussulman qoes under protection into a
foreign land, leaving his wife in the Mussul-
man territory : in neither of which cases
would separation take place, and so in this
instance likewise : — capture, on the other
hand, leads to this, that the captive is the
sole and exclusive property of the captor,
which cannot be established without a ter-
mination of the former's marriage, as it is
on the same principle that a captive stands
virtually released from all hia debts. — Our
doctors, in support of their opinion, argue
that by operation of country all matrimonial
intercourse between the parties, whethe
actual or consequential, is entirely broker
off, and thus this separation resembles illen
gality by affinity ; capture, on the otheh
hand, occasions property in the person, whica •
does not forbid marriage at first, for if
man contract his slave in marriage, it is
lawful ; and so, also, it does not forbid the
continuance of the marriage ; as in the case
of purchase, where if a person should perchas
a female slave, the wife of another, the mar
riage does not, on that account, become null,
— ;And in reply to what Shafei has advanced
with respecttto capture, — it is admitted that
this makes the captive the exclusive property
of the captor, in respect to substance, but
the object of marriage (to wit, the use of
the woman's person), is not substance, and
therefore capture does not annul the mar-
riage : moreover, between a protected for-
eigner and his wife separation of abode <Jbes
not virtually take place, as his ultimate in-
tention is to reurn home, whence he may be
66
MARRIAGE.
[VoL. I
regarded, virtually, as in a foreign country,
during hit residence in the Mussulman ter-
ritory.
A woman, retiring from u foreign to a
Mussulman country, is at liberty to marry.
— IF a woman come out of a foreign country
into the Mussulman territory, and there be-
come either a Zimmee, or a convert to the
faith, it is lawful for her to marry ;* and
Haneefa holds that she is not under any
obligation to observe an Edit. The two
disciples say that she must observe an Edit,
because separation takes place upon her en-
tering the Mussulman territory and she then
becomes subject to the Mussulman laws.
The argument of Haneefa is that the Edit
is a consequence of an antecedent marriage,
enjoined on account of the importance of the
matrimonial tie ; but this tie is of no impor-
tance whatever with respect to foreigners, for
which reason it is that Edit is not enjoined
upon a •« oman who is a captive.
But if pregnant, she must wait until her
delivery. — IF the woman in question be preg-
nant, she must not marry until she be deli-
vered. This is the doctrine of the Zahir
Zawayet. It is recorded from Haneefa that
her marriage is approved ; but her husband
must not have carnal connexion with her
until after her delivery, as is the rule with
women pregnant by fornication. The ground
of Hie former opinion is that the parentage
of the foetus is ascertained fas from some
alien] and therefore the former matrimonial
tie is regarded, with respect to the establish-
ment of parentage, and must consequently
be so, with respect to forbidding her marriage
likew'se, on a principle of caution.
In a case of apostacy separation takes place
without divorce. — IF either husband or wife
apostatize from the faith, a separation takes
place without divorce, according to Haneefa
and Aboo Yoosaf. Mohammed alleges that
if the apostacy be on the part of the hus-
band, the separation is a divorce, because he
conceives an analogy between this case and
that of the husband refusing the faith ; for
as, in the latter instance, he by hit refusal
appears wilfully to withhold the customary
benevolsence from his wife, where he has it
still in his power to continue it to her, so
likewise in the former, by his apostacy.
Aboo Yoosaf holds here to his opinion as
before recited in the case of refusal. Haneefa
makes a distinction between refusal of the
faith and apostacy from it ; and his reason
for this distinction is that apostacy annuls
marriage, because the blood of an apostate
no longer remains under the protection of
the law, and his life is Mobaji [free to any
one to take ; now divorce is used for the
purpose of dissolving a marriage which ac-
tually exists ; and hence apostacy cannot
possibly be considered as divorce : contrary
to the case of refusal of the faith, because it
~ _
* Although she be already married in the
foreign country.
is on account of the ends of matrimony being
thereby defeated that separation is enjoined,
in that instance, as has been already said ;
and for this reason it is that the separation
is there suspended upon a decree of the
magistrate, whereas in apostacy it takes
place without any such decree. It is to be
observed, however, that if the apostacy be
on the part of the husband, his wife is en-
titled to her whole dower where he has
had carnal connexion with her or to half
her dower in defect of this; and where the
apostacy is on the part of the wife, she is
in like manner entitled to her whole dower,
if her husband has had carnal connexion
with her ; but if not, she has no claim what-
ever either to dower or alimony, because the
separation is in this case a consequence of
her own act.
But if a man and wife apostatize together,
their marriage still continues. — IF the hus-
band and wife should both apostatize toge-
ther, and afterwards return to the faith at
the same time, their marriage is by a favour-
able construction of the law, permitted to
endure. Ziffer says that it is annulled, be-
cause the apostacy of any one of them for-
bids the duration of it, and where that
appears in both, it is found in one of them :
but our doctors, in support of their opinion,
cite an instance recorded to have happend
in the time of the blessed companions [of
the Prophet], when the tribe of Binncy
Haneefa, after having apostatized, returned
to the faith, and the companions did not
direct them to renew their marriage ; and
their apostacks were all considered as having
taken place at the same time, because of the
uncertainty of the dates. But if after their
joint apostacy, either the husband or wife
were singly to reurn to the faith, their mar-
riage is/ dissolved, because here one of them
persists in apostacy, and that forbids the
continuance of marriage, the same as it does
the matrimonial engagement at first.
CHAPTER VI.
OF KISSM OR PARTITION
A man must cohabit equally with all his
wives. —I? a man have two or more wives,
being all free women, it is incumbent upon
him to make an equal partition of his coha-
bitation among them, whether he may have
married them as virgins or as Siyeebas, or
whether some of them be of the former
description, and others of the latter ; be-
cause the Prophet has said, "The man who
hath two wives, and who, in partiton, in-
clines particularly to ONE of them, shall in
*By Kissm is understood that equal par-
tition of cohabitation which a husband is
required, by aw, to make among his wive*,
where he has a pluralitv of them.
BOOK III.— CHAP. I.]
FOSTRAGE.
67
the day of judgment incline to ont tide"
(that is to fay, shall be paralytic) ; and it is
recorded bv Aysha that he made such equal
partition of cohabitation among his wives,—
saying. "O GOD, I thus make an equal par-
tition as to what is in my power: do not
therefore bring me to account for that which
is not in my power" (by which he metns the
affections, these not being optional).
THE wife of a prior marriage, and a new
wife, are alike in this point, because the
tradition above cited is general ^ in its appli-
cation, and also, because partition is one oF
the rights of marriage, and in these both
descriptions of wives are equal.
But the mode of partition is left to him-
f elf. —!T is left to the husband to determine
the measure of partition ; that is to say, if
he choose, he may fix it at one day of cohabi-
tation with each of his wives, successively,
or more ; and it U also to be remarked that
by the equality of partition incumbent upon
the husband is to be understood simply resi-
dence, but not coition, as the latter must
depend upon the erection of the virile mem-
ber, which is not a matter of option, and
therefore, like the affections, not always in
the husband's power.
Partition, where the wives ar* of different
rank or degree, must be adjusted accordingly.
— IF a man be married t« two wives, one of
them a free woman, and the other a slave, he
must divide his time into three portions,
cohabiting two portions with the former and
one with the latter, because the same is
recorded of Alee : and also, because, as it is
lawful to marry a free woman upon a slave,
but not a slave upon a free woman,* it hence
appears that the ricrhts of the former in
marriage are short of those of the latter —
And a Mokatiba, Modabbira. or Am-Walid,
are, with respect to their right of partition,
the same as slaves. ,
Partition is not incumbent whilst 9the
husband is on a journev. — WOMEN haye no
right to partition whilst their husband is
upon a journey, and hence, during that
period, it is at his option to carry along with
him whomsoever he pleases ; but it is prefer-
able that he cause them to draw lots, and
take with him on the journev her upon whom
the lot may happen to fall. -Shafei says
that the determination of this point by lots
is incumbent upon the husband, because it is
recorded of the Prophet, that whenever he
intended a journey he caused his wives thus
to draw lots. — Our doctors, however, allege
that the Prophet's reason for this was only
that he might satisfy the minds of his wives ;
wherefore drawinq lots is laudable merely,
because a man's wives have no claim what-
soever to partition during the period of their
husband being on a journey, since he is at
__ _ -.
* By marrying one woman upon another is
to be understood a man marrying a woman
when he is already possessed of a wife ; the
expression is merely idiomatical.
liberty not to carry any of them along with
him, and consequently it is lawful for him to
take any one of them.
THE time of a journey is not to be counted
against a husband; — that is to say, he is
under no obligation, on hit return, to make
up for the partition lost within that time, by
a proportionable cohabitation with the wife
or wives whom he may have left at home,
they having no claim whatever to his coha-
bitation with them during such period.
I f one wife bestow her turn [of cohabita-
tion! upon another, it is lawful ; becauw
Soolah the daughter of Zooma gave up her
turn to Aysha : but if a woman give up her
turn, she is not at liberty to resume it,
because she drops a right which is not as yet
established in her, and absolute dereliction
cannot take place unless it be of a right
already established, — wherefore her resump-
tion here is as if she were to withhold from
bestowing her turn upon the other.
BOOK III.
OF RIZA, OR FOSTERAGE.
Definition of the term. — RIZA, in its legal
sense, means a child sucking milk from the
breast of a woman for a certain time, which
is termed the period of fosterage.*
Degree of fosterage which occasions prohi-
bition.—PROHIBITION is attached to fosterage
in whatever degree, if it be found within the
usual period oT infants subsisting at the
breast.— Shaf?i says that prohibition is not
established unless the child have sucked the
breast at least five different times, insomuch
that if an infant were to suck for any parti-
cular space of time, whether a day or an
hour, uninterruptedly, this would not occa-
sion prohibition, because the Prophet has
said, "Sucking, or giving suck, for once or
twice, does not render prohibited." — Our
doctors support their opinion upon the
authority of the sacred text, GOD saying, in
the Koran, "YouR MOTHERS WHO HAVE
SUCKLED YOU ARE PROHIBITED UNTO YOU,'" —
and also upon a precept of the Prophet, that
"whatever is prohibited by consanguinity,
is also prohibited by fosterage,"— -where no
distinction whatever is made between a
smaller and a greater degree of it.
* Fosterage, with respect to the prohibi-
tions occasion* by it, is of two kinds;
FIRST, where a woman takes a strange child
to «urse, by which all future matrimonial
connexion between that child and the woman
or her relations with the prohibited degrees,
is rendered illegal ; SECONDLY, where a
woman nurses two children, male and female*
upon the same milk, which prohibits any
future matrimonial connexion between them.
68
FOSTERAGE.
. [VOL. la
OBJECTION. — A greater degree of fosterage
is essential to the establishment of prohibi-
tion, because the latter is here founded
solely in an apprehension of a participation
of blood, • on account of the growth and
increasing bulk of the body, which cannot
take place without fosterage, in a consider-
able degree ; moreover, it occurs in the
traditions that fosterage is the source of a
child's growth.
REPLY. — Although prohibition be founded
in an apprehension of a participation or
blood, on account of growth, yet that is a
point which is incapable of being absolutely
ascertained, and hence prohibition by foster-
age is attached, not to the degree, but to the
more act of fosterage, which is the occasion
of such increase of growth : and with respect
to the saying of the Prophet, as mentioned
byShafei, our doctors reply that if the date
of descentf of the text [of the Koran] before
quoted was posterior to that of this saying,
its authority is thereby superseded, and if it
was prior thereto, yet the saying is rejected,
because it contradicts the text.
Length of the period of fosterage. —
THE period of fosterage is thirty months,
according to Haneefa. The two disciples
hold it to be two years, and of the same
opinion is Shafei differ maintains that it
is three years, because something in addition
to two years is absolutely requisite (accor-
ing to what shall be hereafter shown), and
such addition is fixed at one year, because
that space admits of the child's state under-
going a complete alteration. The argument
of the two disciples is the word of GOD, to
wit, "HIS [the child's] TIME ifrf THE WOMB}.,
AND [until] HIS WEANING IS THIRTY
MONTHS :" now the smallest space of preg-
nancy is six months, and hence two years
remain for fosterage ; moreover, the Prophet
has said that "after two years there is no
fosterage." The arguments of Haneefa are
twofold ; FIRST the text already quoted,
where it appears that GOD makes mention of
two things, one the Hamal [or time of ges-
tation], and the other the Fi sal [or wean-
ing], for both of which he indiscriminately
mentions one period, namely, thirty months,
wherefore it applies to each in two ; the
same as in a case of two debts ; that is to
•Arab. Jazeeyat, a term which has no
sense in our dictionaries in any manner
applicable to the present case. ft appears,
from the context, to signify a participation
of bodily substance, causing two persons to
partake of one common nature..
f The Koran was declared by Mohammed
to have been delivered down to him in
different portions at various times, and those
he termed the Noozools, or descents.
JArab. Hamal. By this is generally
understood pregnancy ; but as the text here
qupted ]}a» reference to the child, and not to
the mother;, the translator is under the neces*
sity of rendering it in a phrase applicable to
the fdrmer.
say, if a man (for example) were to make a:
declaration that he owed such a person "one
thousand Dirms, and five bushels of wheat,
payable within two months," this period of
two months applies to each debt equally,
and so in this case likewise. It may indeed
be objected that, admitting this, it would,
follow that the time of being in the womb is
also thirty months, whereas it is otherwise, — '
pregnancy being by law restricted to two
1 years ; but to this we reply, that there is a cause
, of restriction short of that period operating
upon Hamal (is being recorded in the tra-
ditions that a child cioes not remain in the f
wornb of the mother above two years), where-
as there is none upon Fisal, which of course
stands as it appears to be : moreover, as a
sucking child is nourished at the breast for .
two y*>ars, so is it also after the expiration of
that term ; for the weaning is not precisely .
determined to any particular period, but is
effected by degrees, as the child insensibly ,
forgets the breast and inclines to other food :
it is therefore necessary that some space for
fosterage be allowed in addition to the two
years, and this additional space is fixed at
six months, being the shortest term of preg-
nancy, as the lapse of that period affords,
reason for altering the manner of the child's
subsistence, because the subsistence of a
foetus is irreconcilable with that of a suck-
ling ;* and with respect to the traditionary
saying of the Prophet, as cited by the two
discipes, it has reference soUly to the period
of the claim of fosterage ; that is to say, it
only goes to show that no obligation arises
from fosterage ; so as to render payment or
hire of the same obligatory upon the [child's]
father, beyond the space of two years ; and
the text of the Koran, which says, "MOTHERS
SHOULD SUCKLE THEIR CHILDERN FOR TWO'
YEARS," has also reference to the perioJ of
the claim of fosterage.
Sucking ''beyond the term oj fosterage is
not an occasion of prohibition. — IF a child
continue to suck after the proper period of
fosterage is elapsed, prohibition is not hereby
established ;t because the Prophet has de-
clared that there is no fosterage after the
expiration of the proper period ; and also,
because prohibition is not established by any
fosterage, except such as is a cause of growth
and increase, which are obtained only by
*T hat is to say, it is to be supposed that
within the last six months the woman may
have conceived, and may, at the end thereof,
produce a child ; and a woman cannot, with-
out injuring the foetus, give suck to another,
either during or after her pregnancy.
tThat is to say, if, after the expiration of
the proper period of fosterage, another child ,
be brought to the breast, and the former
nursling still continue to suck, these two-
are not hereby prohibited to each other ia
marriage, although they would have been 4
so if they sucked together during the foster-
age of the first child.
BOOK UJ.-CHAP. I.]
the fosterage within improper peiriod, since
grown tip persona would opt firvd Any effec-
tual nourishment from sucking. ;,. ,. '.
A CHILD'S forsaking the breast before , the
expiration of /the pefi,o,<} of fostetag$ is not
regarded ; that i$ to s,ay, if a child withhold ,
from taking its milk before., the period of
fosterage has elapsed, ar*4 there be still milk
in the mother' 5 breast, an,d ajoy other infant
stick the milk before the expiration of that
period, in this case prohibition by fosterage
is established between those children, — This
is the £ahjr Rawayat —Hasan has recorded
it asan opinion of Haneefa. that this is the
case only where the first child ha< not as yet
becoriie attached to another species of food,
so as to be capable of subsisting altogether
without milk.; but if the child have adopted
entirely another species of food, this circum-
stance is to be considered as a weaning, and
prohibition by fosterage cannot in this case
be established, because where the child is
arrived at such a state as that other food
suffices, the manner of its subsistence is
altered, and that growth and increase which
the child derived from sucking is at an end,
wherefore the prpperty of participation of
blood, Which is the occasion of prohibition,
li not afterwards found.
Is the sucking of a child, after the expi-
ration of the period of fosterage, allowable
or not P-^-Urton this point there are various
opinions ; some have said that it is not so,
because the act of suckling at all is per-
mitted solely out of necessity, the milk being
a constituent part of the woman's frame, the
use of any portion of which, except as a
matter of necessity, is prohibited ; and this
necessity ceases upon the expiration of the
period of fosterage.
Exceptions from the general ruin of pro-
hibition by fosterage — ''WHATEVER is pro-
hibited by CONSANGUINITY is so likewise by
FOSTERAGE" (according to the saying of, the
Prophet already quoted), except a sister's
mother by fosterage,* whom it is lawful for
a man to marry, although he cannot lawfully
marry his sister's mother by blood, as she
must either be his own mother, or the enjoyed
of hjis father, both of whom are prohibited
to him ; contrary to her mother by fosterage,
— A sister's mother by fosterage may be con-
ceived in three different ways ; FIRST, where
a man has a sister by blood, who has a foster-
mother, whom he may lawfully marry : —
SECONDLY, where a man has a foster-sister,
who has a mother by blood, whom he may
likewise lawfully marry ; — and THIRDLY,
where a male and female infant, between
whom there is no affinity, suck at the breast
of one woman, and the female infant also
sucks at the breast of another woman, in
which case the male infant may lawfully
*This is a very equivocal and vague ex-
pression, as appears by the succeeding defi-
nition of the various descriptions to which
it applitg.
marry -the test; wpn&ani, ,whp, is^he, fosttr-
rnother.oi the femftle infant) that is tp say,
of hw-fofiter-tiste(r,)r < , .•» - . - '
A, MAN jway^alaO lawfully , marry
of his foster*aon, although tU pe,
for him to marry the sister of his
blood, as she must be either Uis o
ghter, at the, daughter of thi
bofch of wharn:ape,prpbil?it$4<l
is not lawful for a man to marry t^, wife pf
his foster-£ath«r, or, of hisi fostmsqq, (tntjhe
same manner as h« is. prohibited, from jO^FfY;
ing the wife of his- natural father, prison),
because of the tradition before quoted. v , ,
OBJECTION —It ha« been declared, ,in th*
sacred writings, that it is lawful for rn£n to
nvi-rry the wives of their sons by. blood sjhoujd
this particular restriction to blood should
seem to imply that marriage with the wives
of foster- sons was lawful ; whereas it is
otherwise.
REPLY.— The restriction above mentioned
refers to the exclusion of the wives of
children by descent, and not to the exclusion
of the wives of foster-sons, for th,e reasons
already mentioned.
PROHIBITION is attached to the milk 01 the
man (that is to sav, to the milk of which
he is the cause) ; if, for .example, a woman
nurse a female child, the, latter is prohibited
to her husband, and to his father and son,
because the husband, through whom the
woman's breasts have been filled with milk,
is as a father to that child —ft is recorded,
as an opinion of Shafei, that prohibition in
not attached *> the milk of man ; because
this prohibition arises from an apprehension
of participation of blood; and the milk is a
secretion from the blood of the woman, and
not of the man.— The arguments of our
doctors in this case are threefold; FIRST,
the saying' of the Prophet, as before quoted,
"Whatsoever is prohibited by consanguinity
is also prohibited by fosterage, "—and -pro-
hibition by consanguinity being found in
both father and mother, it follows that it is
found in both these relations by fosterage;
—SECONDLY, the Prophet once said to Aysha
(who had complained to him of Atia, the
brother of Aboo Keis, appearing before her
whilst she had only a single cloth upon her),
"The act of AFLA, in thus approaching you,
is of no consequence, is he is your paternal
uncle by fosterage;" which proves that
affinity by fosterage is established on tne
paternal side, and that as the woman who
suckles is the child's mother, so is her hus-
band its father, *>y fosterage ;— THIRDLY, the
man is the cause of the entrance of the milk
into the woman's breasts, and therefore the
milk is, out of caution, to be regarded (with
respect to the point of prohibition) as de-
riving its existence from him. .
A MAN may lawfully marry the sister of
his foster-brother, it being allowed to him to
marry the sister of his brother by blood
(that is, the maternal sister of his paternal
brother).
70
FOSTRAGE.
[VOL. I.
IT is to be observed as a rule that when
i male and female infant suck from one
breast, they are prohibited to each other
in marriage, because they have one common
mother, and are therefore as brother and
sister.
IT is not lawful for a female to marry
any of the sons of the woman who has
suckled her, because they are her brothers,
— nor the sons of those sons, because they are
her nephews.
IT is not lawful for a male to marry the
husband's sister of the woman who has
suckled him, as she is his paternal aunt by
fosterage.
Cases of admixture of the milk with any
foreign substance.— IF the milk be drawn
from the nurse's breast, and mixed with
water, prohibition is still attached to it,
provided the former exceed the latter in
quantity ; but if the water exceed, pro-
hibition is not attached. — Shafci maintains
that prohibition is attached, in the latter
case also, because there is actually some of
the milk in that water, and therefore it is
indispensable to be regarded, especially in
a point of prohibition, that being a matter
of caution. — TO this our doctors reply that
anything less in quantity than that with
which it is mixed is regarded as virtually
non-existent, as in the case of a vow, for
instance, where, if a man swear that "he
will not drink milk/' and he afterwards
drink it mixed with a greater proportion of
water, he is not forsworn.
IF the milk be mixed with other food,
prohibition is not attached to it, although
the former exceed the latter in quantity
This is according to Haneefa. The two
disciples say that if the milk exceed, pro-
hibition is attached. The compiler of the
Hedaya remarks that this opinion of the two
disciples proceeds upon a supposition that
the milk and victuals do not undergo any
culinary preparation after admixture ; but
that, if they be boiled, or otherwise prepared
by fire, all the doctors admit that prohibition
is not then occasioned. — The two disciples
argue that regard is to be had to that which
exceeds (as in the case of mixing milk with
water), provided it have not undergone any
change by boiling or other cause. — The
argument of Haneefa is that the food is the
subject, and the milk only a dependent, with
respect to the end it is intended for, to wit,
sustenance ; the case is therefore the same
as if the proportion of the food (exceeded
that of the milk. t
IF the milk be mixed with medicine in a
proportion exceeding the latter in quantity,
prohibition is attached to it, because the milk
is designed for sustenance, which is the end,
and the purpose of the medicine is only to
s|rengthen the child's stomach, or to forward
digestie».
IF the milk of the nurse be mixed with
that frf an animal, in a proportion exceeding
the latter in quantity, prohibition is attached
L^ u . u,,* not if the milk of the animal ex-
ceed the other ; regard being here had to that
which exceeds, as in the admixture of milk
with water.
Or with the milk of another woman. — IF
the milk of one woman be mixed with that
of another, in this case Aboo Yoosaf holds
that regard should be had to the excess. —
that is to say, that prohibition is attached to
that woman's milk which exceeds the milk of
the other in quantity,— because here the two
milks, when mixed together, become as one
substance, and hence the smaller quantity is
to be considered (in the effect produced) as
a dependant on the greater quantity, — Mu-
hammed and Ziffer contend that prohibition
is attached to both milks equally, as both
are of the same nature and a thing
cannot be said to exceed a homogeneous
thing, because the admixture with any ar-
ticle of a homogeneous nature adds to the
sum, but does not occasion any destruction
or change in the matter ; and the end in-
tended is the same in both. There are two
opinions recorded from Haneefa upon this
subject, one coinciding with Aboo Yoosaf,
and the other with Mohammed.
Prohibition is occasioned by the milk of a
virgin. — IF the breasts of a virgin should
happen to produce milk, prohibition is at-
tached to it, — that is to say, if a male child
were to subsist upon it, the virgin becomes
his mother by fosterage, and his marriage
with her is prohibited, according to the
word of GOD in the Koran, "Your MOTHERS
WHO HAVE SUCKLED YOU ARE PROHIBITED
UNTO YOU," which text being generally ex-
pressed, applies to all women alike : — more-
over, the milk of the virgin is a cause of
growth in the child, which induces an ap-
prehension of participation of blood.
Or of a corpse — IF milk be drawn from
the breasts of a deceased woman, prohibition
is attached to it.— This is contrary to the
opinio* of Shafei, who says that in the
establishment of prohibition by fosterage,
the primary subject of such prohibition is
the woman whose milk has been sucked by
the child, the prohibition pervading through
the medium of that woman to othtrs (her
relatives!, but, by her decease, the original
subje«t of prohibition is removed^ she being
then a dead substance ; whence it is that if a
man were then to commit the carnal act with
her, he would not be subject to the punish-
meat of fornication, nor would ^ prohibition
by affinity be by that act established. The
argument of our doctors is that prohibirion
by fosterage arises from an apprehension of
participation of blood, which ^ appear in
the increasing growth of the [child's] body,
and this last ts occasioned by milk ; as in the
present case.
Cases tn which mil^ does not occasion
prohibition.— IF a woman's milk be adminis-
tered to a child in a glyster, prohibition by
fosterage is not attached to it. — It is re-
corded from Mohammed that prohibition is
thereby established, in the same manner as
BOOK III.— CHAP. I.]
FOSTERAGE.
71
a fast would be vitiated by it : — but the
reason of this apparent inconsistency (ac-
cording to the Zahir Rawayet) is that the
cause of violating the fast is the restoration
of the body, which is effected by the glyster :
whereas the cause of prohibition by foster-
age is the increase of the body's growth,
which is not thereby effected, nothing being
sustenance to men except what is adminis-
tered by the mouth.
IF a man's breasts should happen to pro-
duce milk, prohibition is not attached to it,
because the substance thus produced is not,
in fact, milk, and consequently increase of
growth is not obtained by means of it. — The
principle upon which this proceeds is that
milk cannot be secreted in the breasts of
any person but one who is capable of child-
bearing.
PROHIBITION by fosterage is not attached
to the milk of a goat (or other animal) that
is to say, if two infants, a male and a female,
were to subsist together, upon the milk of
one goat, prohibition by fosterage is not
established between them, because between
mankind and brutes there can be no
participation of blood (that is to say, such
participation as would occasion affinity) and
prohibition by fosterage arises from partici-
pation of blood.
Case of one of two wives suckling the other.
— IF a man marry an infant and an adult.
and the latter should give milk to the former,
both wives become prohibited with respect
to that man [th^ir husband], because if they
were to continue united in marriage to him,
it would imply the propriety of joint cohabi-
tation with the foster-mother and her foster-
daughter, which is prohibited, in the same
manner as joint cohabitation with a natural
mother an-d daughter — It is to be observed
on this occasion, that if the husband should
not have had carnal connexion with the adult
wife, she is not entitled to anv dower what-
ever because the separation has proceeded
from her, before consummation : — bi^t th«
infant has a claim to her half dower, the
separation not having proceeded from her.
OBJECTION. — The separation proceeds
from her, because sucking the milk from the
breast was her act.
REPLY. — Although the sucking was cer-
tainly her act, yet the act of such an one is
not considered as destructive of her right, for
which reason it is that if she should happen
to kill her inheritee, this would not set aside
her right of inheritance. — If, moreover, it
should appear that the adult had acted with
any sinister view of dissolving the marritge,
the husband is in this case empowered to
take from her the half dower which he pays
to the infant ; but not unless ihe have actec
with such a view, even though she were
aware of the infant being the wife of her
husband. It is recorded from Mohammed
that the hushand u authorized to take the
I infant's half dower from the adult, in either
case, — that is to say, whether a dissolution oi
the marriage may have b**n her intention po
not ; but the former (which is the Zahir
Rawayet) is the more orthodox opinion, be-
cause although the adult has by her act
ixed and rendered binding upon the hui-
>and the half dower aforeiaid (which had
before stood within the possibility of drop-
ping*), and her so doing amounts to a dam-
age, yet she here stands (not us the actual
perpetrator, but) as the cause of the damage,
iince the act of giving her milk to the infant
s not the occasion of dissolving the marriage
anv further than as it induces a consequence
of joint cohabitation with a step-mother and
step- daughter: — moreover, the annulling of
a marriage is not what renders a dower ob-
igatory, but is rathrr the occasion of its
rlrooning ; but thp half Howcr is incumbent,
in the manner of a Matat, or present, in
compliance with established custom ; and thp
innulling of thp marriage is the condition of
its becoming incumbent ; ami in this view
rho adult is the cause of the damage ; and as
being the cause onlv. and not the actual per-
petrator, transgression is ma Ho a condition
of her responsibility, the same as in the case
of digging a well, — that is to say, if a person
were to transgress, in digging a well, hy
sinking it in another person's around, or in
the high way, he is responsible for the Deevat
of anv one who mi pht happen to full into it.
whereas, if thp well wore sunk in his own
ground, he would not hp resnonqihle: — now
this transgression is not foiinH in the adult.
unless whore she is aware of the infant being
the wife of her husband, and that her view
is sucking it is a dissolution of the marriage;
but where she is not aware of that circum-
stance, or hpirft so. vet gives her milk, not
with anv view of dissolving the marriage,
but rather of preserving the infant from
perishing,, in neither of these cases is trans-
gression supposed to pxist ; and, in the same
minner, it does not exist, if she knew that
the infant is the wife of h^r husband, but be
not aware that her sucking it will occasion
a dissolution of thp marriagp.
OBTFCTION. — No regard is paid to igno-
rance of thp law in a Mussulman territory ;
how, therefore, can ignorance be pleaded in
her excuse in the present case ?
REPLY — Regard is here paid to her igno-
rance, not in order to avert the ^ sentence of
the law (which inducps responsibility upon
her), but aolely to avert the construction of
intent of dissolution, or of wilful transgres-
sion, to which her act might otherwise be
liable, and which being thus disproved, she
is exonerated from responsibility as these
are the onlv causes thereof, and neither of
them can apply to her.
Evidence to fosterage require* the full-
•That is to say, the obligation of which
might possibly have been annulled or can-
celled by the occurrence of some accident
previous to the payment of it, such *as the
decease of the infant before consummation of
the marriage &c.
72
number of witnesses. — THE evidence of
woman alone is not sufficient to establish
fosterage ; nor can it be established but on
the testimony of two men, or of one man and
two women. — Imam Malik has said that it
may be established on the evidence of one
woman, provided she be an Adil, because
prohibition is one of the rights of the law,
and may therefore be established upon a
single information, — as, for instance, where
a person purchases flesh meat, and any one
bears testimony to its being part of a
Majoosee sacrifice, in which case prohibition
is established with respect to it. — The argu-
ment of our doctors is that the establishment
of prohibition in marriage is in no respect
different from the extinction of a right of
possession ; and the annulling of a right of
possession cannot take place but upon the
evidence of two men, or of one man and two
women ; — contrary to the case of flesh meat,
as the prohibition to the eating may be
established without affecting the proprietor's
right of possession, it still remaining his
property under that prohibition : — the pro-
hibition of this article, therefore, appears to
be merely a matter of religion, and in which,
consequently, a single evidence suffices.
BOOK IV.
OF TALAK, OR DIVORCE.
Definition of the term. — TALAK, in its pri-
mitive sense, means dismission; — in law it
signifies the dissolution of a nfarriage, or the
annulment of its legality, by certain words.
Chap. I —Of the Talak al-Sonna, or Re-
gular Divorce.
Chap. II — Of the Execution of Divorce.
Chap, III. — Of Delegation of Divorce.
Chap. IV. — Of Divorce by a Conditional
Vow.
Chap. V.— Of the Divorce of the Sick.
Chap. VI.— Of Rijat, or returning to a
divorced Wife.
Chap. VII. -Of Aila.
Chap. VIIL-OfKhoola,
Chap. IX.-Of Zihar.
Chap. X. — Of Laan, or Imprecation.
Chap. XI — Of Impotence.
Chap. XII.— Of the Edit.
Chap. XIII.— Of the Establishment of
Parentage.
Chap. XIV.— Of Hizanet, or the Care of
Infant Children.
Chap XV.- Of Nifka, o^Subsistence.
CHAPTER I.
OF TALAK-AL-SONNA, OR REGULAR DIVORCE*.
Distinctions of divorce. — DIVORCE is of
three kinds ; — FIRST, the Aksan, or most
DIVORCE. ]VoL. I.
laudable :-- SECOND, the Hoosn, or laud-
able (which are the distinctions of the
Talak-al-Sonna; ; and THIRD, the Biddat, or
irregular.
Talak Ahsan.—THE Talak Ahsan, or most
laudable divorce, is where the husband
repudiates his wife by a single sentence,
within a Tohr (or term of purity),* during
which he has not had carnal connexion with
her, and then leaves her to the observance of
her Edit, or prescribed term of probation.
This mode of divorce is termed the most
laudable, for two reasons ;- FIRST, because
the companions of the Prophet chiefly
esteemed those who gave no more than one
divorce until the expiration of the Edit, as
holding this to be a more excellent method
than that of giving three divorces, by repeat-
ing the sentence on rach of the two succeed-
ing Tohrs : — SECONDLY, because in pursuing
this method the husband leaves it still in his
power, without any shame, to recover his
wife, if ke so inclined, by a reversal os
the divorce during her Edit : this method is,
moreover, the least injurious to the woman,
as she thus remains a lawful subject of
marriage to her husband even after the
expiration of her Editf which leaves a
latitude in her favour unreprobated by any
of the learned
Talak Hoo^n.--TuE Talak Hoosn or
laudable divorce, is where a husband repu-
diates an enjoyed wife be three sentences of
divorce, in three Tohrs. Imam Malik asserts
that this method classes with the Biddat, or
irregular, and that no more than one divorce
is admitted as unexceptionable, because, as.
being in itself a dangerous and disapproved
procedure, it is only the urgency of relese
from an unsuitable woman thit can give a
sanction to divorce; and this urgency is-
fully answered by a single Tohr. The Argu-
ments of our doctors on this topic are t vo-
fold :— FmsT, a precept of the Prophet
deHvercd to Ebn Amir, "One thing required
by tlfe SONNA is that ye wait for the TOHR
and pronounce a divorce in each TOHR ;" —
SECONDLY, the propriety of a divorce rests
merely upon the establishment of the actual
urgency itself; that being a matter concealed
and unascertained [but by virtual proof.]1
and the act of proceeding to divorce at a time
when the desire of coition with the woman
is fresh renewed (to wit, at the recommence-
ment of her Tohr), is a proof of the urgency ;
opposition to Talak Riddat, which signifies
a novel, unauthorized or heterodox mode of
divorce : the terms regular and irregular are
here adopted as being the most familiar.
*Talak- al-Sonna literally means "divorce
according to the rules of the Sonna," in
•Meaning the space which intervenes be-
tween the menstrual fluxes.
•[Contrary to any other mode of divorce,
as a wife repudiated in any other way cannot
be again married to her first husband, unless
she be previously married to, and divorced
by, another man.
BOOK IV.— CHAP. I.]
DIVORCE.
and the repetition of divorce at the two
subsequent returns of the Tohr amounts to
no nure than a repetition of the proof, and
is therefore allowed of. Some of the learned
have said that, in this species of divorce, it
is most advisable that the husband delay
pronouncing the first sentence of it until
towards the termination of the Tohr, so as
that the Edit may not be too much pro-
tracted .' but it is evident that the husband
should rather pronounce the divorce at the
commencement of the Tohr, because, if he
were to delay it, he mijht probably De
tempted to have carnal connexion with the
woman in the interim, under an intention of
divorcing her, and then divorce her after
such carnal connexion, which is forbidden.
Talak Biddat.— THE Talak Biddat, or
irregular divorce, is where a husband repu-
diates his wife by three divorces at once, —
(that is, included in one sentence), or where
he repeats the sentence separately, thrice
within one Tohr ; and if a husband give
three divorces in either of those ways, the
three hold good but yet the divorcer is an
offender against the law.
SHAFEI has said that all these three de-
scriptions of divorce are equally unexcep-
tionable and legal, because divorce is in itself
a lawful act, whence it is that certain laws
have been instituted respecting it ; and this
legality prevents any idea of danger being
annexed to it : moreover, divorce is not pro-
hibited, even during the woman's courses,
the prohibition there applying to the pro-
traction of the Edit, and not to divorce. —
Our doctors, on the other hand, say that
divorce is in itself a dangerous and disap-
proved procedure, as it dissolves marriage,
an institution which involves many circum-
stances as well of a temporal as of a spiritual
nature ; nor is its propriety at all admitted,
but on the ground of urgency of release from
an unsuitable wife : and there is no occasion,
in order to procure this release, tt> give three
divorces at once, whereas there is an erfcuse
for giving three divorces separately irt three
Tohrs, as this exhibits repeated proofs of the
urgency of it : — and with respect to what
Shafei advanc>s, that "the legality of
divorce prevents any idea of danger being
annexed to it," we answer that the legality
of divorce, in one respect (that is to say,
inasmuch as it is a destroyer of subjection),
does not admit the idea of its being danger-
ous, but that, in another respect (to wit, its
occasioning the dissolution of marriage, which
involves concerns both of a spiritual and
temporal nature), it must be considered as
attended with danger.
THE pronouncing for two divorces within
one Tohr comes under the description of
Biddat, or irregular, the same as that of
three divorces, as already intimated.
A QUESTION has arisen among the learned,
whether the pronouncing of a single divorce
irreversible within one Tohr be of the
description of Biddat or not ? — Mohammed,
in the Mabsoot, has said, — ' 'Whoever gives
an irreversible divorce, although it be within
the Tohr, forsakes the Sonna, as there is no
urgent necessity for such a sentence to effect
release from the wife, since by the lapse of
the Edit that end is obtained ;" but again, in
the Zeeadat, he says that this method is not
to be reprobated, on account of the occasional
urgency of immediate release, which by an
irreversible divorce is obtained, it not being
then suspended upon the lapse of the Edit.
Points to be attended to in adhering to the
Sonna divorce. — SONNA [that is, attention to
the mode prescribed by the Soona] in divorce
appears in two shapes, adherence to number,
and to time ; to the former, by restricting
the sentence to that of a single divorce
reversible, in which the enjoyed and the
unenjoyecl wife are the same ;~and to the
latter (in which the enjoyed wife is solely
considered), by pronouncing the divorce in a
Tohr during which the husband has not had
carnal connexion with her,— because it is
the proof of urgency that is regarded ; and
the act of proceeding to a divorce at a time
when the desire* of coition with the woman
is fresh renewed (as at the recommencement
of her Tohr), is the best proof of such
urgency : for during the actual time of the
courses the woman is not an object of desire,
and in a Tohr where she has been enjoyed,
desire is lessened towards her. With respect
to an unenjoyed wife, the Tohr and the
courses are equal, — that is to say, the pro-
nouncing of divorce upon her whilst she is
in the latter situation is not irregular, nor
reprobated, any more than whilst in the
former. This is contrary to the opinion of
Ziffer, he considering an unenjoyed wife in
the same point of view as one enjoyed :— but
our doctors observe that the desire of coition,
with respect to an unenjoyed woman, is ever
fresh, and is not lessened by the circum-
stance of her courses, so long as the hus-
band's object (namely, coition), remains
unobtained ; whereas, with respect to an
enjoyed wife, desire is renewed upon the
Tohr.
Mode of adherence to the Sonna in repu-
diating a wife not subject to the courses.— I?
the wife be a person who, from extreme youth
or age, is not subject to the courses, and her
husband be desirous to repudiate her by three
divorces in the regular way, he is hrst to
pronounce a single sentence of divorce upon
her, and at the expiration of one month
another, and in like manner a third at the
expiration of the next succeeding month ;
because the term of one month corresponds
with a return of the courses, as is mentioned
in the KoRAN.^It is here to be observed that
if the first divorce be given in the beginning
of the month, the three months from that
period are to be counted by the lunar calen-
dar, and if in the middle of it, by the number
of days, with respect both to the completion
of divorce and of the Edit.-This is the rule
with Haneefa.-The two disciples maintain
that the second and third months dre to be
invariably counted by the lunar calendar.
74
DIVORCE.
[VOL.
the deficiency of the first month to be taken
from the fourth succeeding month, so as to
complete it. And it is also to be observed
that it is lawful for the husband to divorce
this wife immediately after carnal connexion,
without the intervention of any time between
the embrace and the divorce.— Ziffer says
that the husband ought to allow the inter-
vention of a month, because the term cor-
responds with a return of the courses, and
also, because in consequence of thi embrace
desire becomes languid, and is not renewed
until after the lapse of som^ time —Our
doctors argue that there can be no appre-
hension of pregnancy with respecc to the
woman in question ; and divorce, after the
carnal embrace, in the case of a woman who
is subject to the courses, is not reprobated on
any other account than as it induces a possi-
bility of pregnancy, which renders the dura-
tion of her F.dit dubious, that of a precjnant
woman being determined by her cl-livery,
and, of one not pregnant, by courses ; and
as to what Ziffer alleges, that "desire becomes
languid in consequence of the embrace," it
may be replied, that although this be ad-
mitted, yet in the present instance desire is
greater than in common cases, as the husband
can indulge his carnal appetite with such a
wife without any apprehension of her pro-
ducing children, the support of whom might
fall upon him ; she therefore is an object of
desire to him at all times equally, so that this
state [of a woman not being subject to the
courses] is the same as the state of actual
pregnancy ; now it is lawful to divorce a
pregnant wife immediately after carnal con-
nexion with her, because no doubt is induced
with respect to the duration of her Edit, and
the time of pregnancy is a time of desire, as
a husband feels desire towards a pregnant
wife, either because she produces a child to
him, or because the embrace with her does
not occasion pregnancy ; his desire, therefore,
is not lessened towards such a wife by enjoy-
ment.
Or one who is pregnant. — IF a man be de-
sirous of repudiating his pregnant wife by
three divorces in the regular way [that is,
according to the Sonna], he is fust to pro-
nounce a single sentence of divorce upon her,
and at the expiration of one month another,
and in the same manner a third at the ex-
piration of the next succeeding month. This
is according to Haneefa and Aboo Yoosaf. —
Mohammed and Ziffer say that the Talak-al- '
Sonna, with respect to a pregnant woman,
consists in giving her a single divorce only,
because divorce is in itself a dangerous and
disapproved procedure ; moreover, the only
rule instituted by the law ip effecting a tri-
plicate divorce is, that the husband first pro -
nounces one divorce, and at the expiration
of a month, or the passing of the next
courses, another and in the same manner a
third at the expiration of the following
month or the passing of the next succeeding
courses^; now the courses do not occur to a
pregnant woman, nor does the lapse of a
month stand in place of a return of her
courses (as with a woman whose youth or age
prevents her having them), her whole period
of pregnancy being as one long Tohr ; and
hence it follows that it is improper to pro-
nounce more than a single sentence, the rule
of the Sonna being restrictive to one divorce
in one Tohr. — To this Haneefa and Aboo
Yoo'af reply that, although divorce be in it-
self a dangerous and disapproved procedure,
yet it is admitted on the ground of urgency,
and the lapse of a month is the proof of that
urgency, and is therefore to be regarded here,
the same as in the case of a woman whose
youth or age prevents her having the courses :
the foundation of this is that the period in
question is such a time as affords a renewal
of desire to persons in health and vigour, and
therefore the act of divorce being proceeded
in at such a season affords proof of the ur-
gency of it, with respect to a pregnant woman,
the same as to any other ; contrary to a wo-
man whose Tohr is long [that is, by comii-
tution or accident protracted to any unu ual
length], as the lapse of a month is not a proof
of necessity with respect to such an one ; this
proof of necessity being found in her only on
the renewal of the Tohr after the courses,
the recurrence of which, with regard to her,
is at all times possible, whereas, with regard
to a pregnant woman, it is impossible.
Case of divorce pronounced during men-
struation.— IF a man repudiate his wife
during her courses, it is valid ; because,
although divorce within the .term of the
courses be disapproved, yet it is lawful,
nevertheless, as the disapproval is not on
account of any thing essential, but merely
because a divorce given during the courses
occasions a protraction of the Edit. — This
kind of disapproval, or interdict, is termed
Nihee-le-ghirehee,* and does not forbid
legality, whence a divorce given during the
courses is valid ; but yet it is laudable that
the husband reverse it as it is recorded that
the, son of Omar having divorced his wife
during her courses, the Prophet desired Omar
to command his son to take her back again ;
which tradition shows that divorce during,
the courses is valid, but that reversal is in
this case laudable.— This doctrine of the
laudability of reversal is maintained by
many of our modern doctors ; but it is certain
that, in this case, reversal is not only laud-
able, but incumbent, for three reasons ;
FIRST, in the tradition abrwe quoted, the
Prophet desires Omar positively "to com-
mand his son," and command is always in-
junctive ; — SECONDLY, the pronouncing of
divorce during the courses is an offence,
which it is incumbent upon a man to expiate
by every means within his power ; and this
may be effected, in the present instance, by
doing away its consequence, namely, the
Edit ; — THIRDLY, the protraction of the Edit
•This may be rendered prohibition for
another reason.
BOOK IV.— CHAP. I,]
DIVORCE.
75
is injurious to the woman, wherefore reversal
is incumbent, the order that she may not be
subjected to injury : — thus it is indispsnsably
incumbent upon the husband to reverse the
divorce, when given during the courses ;
after which, when she has become purified
from her courses, and has again had them,
he may then either divorce her on the com-
mencement of her second succeeding Tohr, or
suffer her to remain The compiler of the
Hedaya observes that this last is what is said
in the Mabsoot. Tehavee has said that, if
the husband choose he may regularly divorce
his wife on the commencement of the Tohr
immediately succeeding the courses in which
he had given divorce, and reversed it, as
above, Koorokhee says that what is thus
mentioned by Tehavee is the doctrine of
Haneefa. That which is taken from the
Mabsoot is the opinion of the two disciples :
and the ground of it is that the regularity of
divorce depends upon the intervention of a
complete menstrual discharge between every
two sentences ; and the first of these is defec-
tive, on account of divorce having been pro-
nounced in the middle of it, so that as part
had previously elapsed, whence it would ap-
pear necessary to complete it from the next
following return ; but it is not lawful to have
regard to one part only of the courses, and
not to the other ; consequently, regard must
be had to the next returning courses in toto.
— The ground of Tehavee' s opinion is that
the divorce, with its effects, having been
annulled entirely by the reversal, it is the
same as if no divorce whatever had taken
place during the woman's courses ; and hence
it is perfectly regular to pronounce divorce
in the Tohr next immediately succeeding.
IF a man were to address his wife, saying,
"You are divorced thrice, according to the Son-
na,*' — and he have no particular intention in
so doing, then supposing the wife to, be one
with whom he has had carnal connexion, and
also subject to the courses, she becomes o$ice
divorced in that and each of the two succeed-
ing wohrs : and if the husband intended in so
saying, either that threa divorces should take
place collectively upon the instant, or, that
a single divorce should take effect at the end
of each succeeding month, the divorce, in
each instance, takes effect according to his
intention, whether she be in her courses or
her Tohr at the period of its thus taking
effect upon her. — And if she be one whose
Edit is calculated by months (such as a
woman, for instance, whose courses are stopt
through age), and the husband have no par-
ticular intention in thus addressing her, in
this case a single divorce takes effect upon the
instant, another at the expiration of a month,
and a third at the expiration of the next suc-
ceeding month : because the term of a month
corresponds, in such an one, with the Tohr
of a woman who is subj^t to the courses, as
was formerly observed ; or if he intended
that three divorces should take place collec-
tively upon the instant, the three take place
accordingly, in the manner already stated.
But if the husband were only to say, "You
are divorced according to the Sonna," comit-
ting the word "thrice," — in this case the
intention of three divorces collectively is not
efficient. The proofs and arguments upon
this passage are all drawn from the Arabic,
and derive their weight from certain peculi-
arities in that idiom.
Section
Of the persons who are competent to t?ro-
nounce divorce— THE divorce of every hus-
band is effective, if he be of sound under-
standing, and mature age ; but tnat of a boy,
or a lunatic or one talking in his sleep, is
not effective, for two reasons :— FIEST, be-
cause the Prophet has said "Every divorce
is lawful, excepting that of a boy or a
lunatic /'—SECONDLY, because a man' 3 com-
petency to act depends upon his possession
of a sound judgment, which is not the case
with infants, or lunatics :— and one talking
in his sleep is the same, in this point, as a
boy or a lunaeic, since his words in this case
are not the result of a deliberate option.
A divorce pronounced by compulsion, ts
effective— THE divorce of one acting upon
compulsion, from threats, is effective, accord-
ing to our doctors. — Shafei maintains that it
is not effective, because a person who is com-
pelled has no option, and no formal act of
law is worthy of regard unless it be purely
optional ; contrary to the case of a jester,
who in mentioning divorce, acts from option
which is the cause of its validity.— Our
doctors, on the other hand, allege that the
person here mentioned pronounces divorce
under circumstances of complete competency
f maturity of age and sanity of intellect], the
result of which is that divorce takes effect
equally with that of a person uncompelled
for with him necessity* is the reason of its
efficiency ; and the same reason applies to the
divorce of a compelled person, as he is also
under necessity of divorce, in order that he
may be released from the apprehension of
that with with which he was threatened by the
compeller.— The foundation of this is that
the man alluded to has the choice of two
evils ; one, the thing with which he is
threatened or compelled ; and the other,
divorce upon compulsion ; and viewing botri,
he makes choice of that which appears to him
the easiest, namely, divorce ; and this proves
that he has an option, though he be not
desirous that its effect should be established,
or, in other words, that divorce should take
place upon it ; nor does this circumstance
forbid tha efficiency of his sentence : as in
the case of a jester ; that is to say, if a man
pronounce a divorce in jest, it takes effect,
although he be not desirous that it should;
and so likewise the divorce of one who is
compiled.
*Namely, the necessity of separation from
a wife, who may be odious or disagreable-
to him.
76
DIVORCE.
[VOL. I.
Or in a state of inebriety, is valid.— It a
man pronounce a divorce whilst he is in a
state of inebriety from drinking any fer-
mented liquor, such as wine, the divorce
takes place. Koorokhee and Tehavee hold
that divorce ought not to take place in this
case ; and there is also an opinion record id
fromShafei to the same effect. The argu-
ment upon which they maintain this doctrine
is that reality of intention is connected with
the exercise of reason, which is suspended
during intoxication from wine ; in the same
manner as where a person has taken any
allowed but inebriating medicine, such as
laudanum, in which case a divorce pro-
nounced would not take effect, and so in this
case also. But to this our doctors reply tint,
in the case now under consideration, the
suspension of reason beinq occasioned by an
offence, the reason of the speaker is supposed
still to remain, whence it is that his sentence
of divorce effect, in order to deter him
from drinking fermented .liquors, which are
prohibited. But yet if a man were to drink
wine to so great a degree as to produce a
delirium or inflammation of the brain,
thereby suspending his reason, and h» in
that situation pronounce divorce, it will not
take effect.
And so also that of a dumb person. — THE
divorce of a dumb person is effectual, if it
be expressed by positive and intelligible
signs, because signs of the dumb are autho-
rized by custom, and are therefore admitted
to stand in the place of speech, in the pre-
sent instance in order to answer the necessity
of him who makes them. The various species
of signs used bv the dumb in divorce shall be
set forth hereafter.
Number of divorces in respect to free
women and slaves.— THE utmost number of
divorces, with respect to a female slave, is
two, whether her husband be a slave or free :
and the same . with respect to a free woman
is three. — Shafei has said that, in the number
of divorces, respect is to be had to the state
of the man ; that is to say, if the husband be
free he is empowered to pronounce three
divorces, although his wife be a slave ;
whereas, if he be a slave, he is not authorized
to give morr than two divorces, although his
wife should be a free woman, the Prophet
having said **In divorce the state of the
HUSBAND is to be regarded, and in the EDIT
that of the WIFE :"— moreover, personal con-
sequence is an essential circumstance in all
points of authority, and that appertains to a
freeman in a higher degree than to a slave,
whence his authority, is most extensive. — The
arguments of our doctors are twofold upon
this topic ;— FIRST, a precept of the Prophet,
declaring, "The divorce of a female slave
ire TWO, and her EDIT is TWO courses ; —
SECONDLY, it is the woman who is the subject
of legality, and thie legality entitles her to
benefits ; but slavery entitles only to half
of these benefits ; hence it follows that the
divorce of a female slave should not exceed
one and a half, but such subdivision of it
being impossible, her divorces extend to two
— As to the saying of the Prophet quoted by
Shafei, that "in divorce the state of the
husbanH is to be regarded," it means no
more than that the effciency to divorce
proceeds from him.
A master cannot divorce the wife of his
slave.— THE divorce of a slave upon his wife
takes place ; but that of a master upon the
wife of his slave is of no effect, because the
matrimonial propriety bein:? a right of the
slave, the relinquishmeut of it rests with the
slave, not with his master.
CHAPTER II.
OP THE EXECUTION OF PIVORCE.
Distinctions.— -DIVORCE (in respect to the
execution of it) is of two kinds ; Sarcch or
express, and Kinayat, or by implication :—
and first of express divorce.
The manner of express divorce — TALAK
SAREEII, or express divorce, is where a hus-
band delivers the sentence in direct and
simple terms, as if he were to say, "I have
divorced you," or "you are divorcen" which
effects a Talak Rijai, or divorce reversible,—
that is to say, a divorce such as leaves it in
the husband's power lawfully to take back
his wife at any time before th- expiration of
the Edit : and these forms are termed Sareeh,
or express, as not being used in any sense
but divorce ; and it appears in the sacred
writings that reversal after an express divorce
is lawful. — The intention is not a condition
of divorce taking place from these forms, for
the same reason as was already assigned, to
wit because they directly express divorce,
as not being used in any other seme —And
it is to be observe d that a reversible divorce
onl> is effected by these forms, although
the intention of the husband be a complete
divorce, because his intention is here to effect
that upon the instant which the law suspends
upon the lapse of the Edit, and is therefore
unworthy of regard : and if his intention
should be merely to express a delivery from
bondage (which the term Talak is occasion-
ally used to imply), and he make a declara-
tion to this effect before the Kazee, it is not
admitted, as it disagrees with his apparent
design : but yet it is admitted before GOD,
because he intended in those words a mean-
ing which they are capable of bearing ; and
if his intention be to express a release from
bodily labours, his declaration to this effect
is not at all admitted, either before the Kazee,
or before GOD, as the word Talak does not
bear the construction of release with respect
to bodily labour, although it may occasion-
ally bear that construction with respect to
bondage : and it is also to be remarked that
no mofe than a single divorce can be effected
by these forms, although the intention be
more.— Shafei alleges that divorce takes
place according to whatever the intentio
BOOK IV.— CHAP II ]
DIVORCE.
77
may be— -The proof s on each *ide arc drawn
from the Arabic.
Different formulas of express divorce. — IF
a man say to his wife, "You are [under]
divorce," or "You are divorced by divorce,"
or, "You are divorced according to divorce,*"
without any particular intention, or intend-
ing thereby one divorce, or two divorces, a
single divorce reversible takes place ; and if
his intention be three divorces a triple
divo-ce takes place accordingly —The proofs
are drawn on this occasion from the Arabic.
IF a man were to say to his wife (as above),
"You are divorced by divorcement," and
declare that by the word "divorced" he
meant one divorce, and by the word "divorce-
ment" a second divorce, his declaration is
credited, because each of these words are
capable of being construed into an intention
of effecting divorce, and hence two reversi-
ble divorces take place, provided the woman
has been enjoyed by him.
IF a man apply divorce to the whole woman,
by saying (for instance), "You are divorced,"
in this case divorce takes place, on account
of its application to its proper subject, namely,
the woman, the relative "You" implying
the woman's person in too ; and the rule is
the same where he applies it to any parti-
cular part or member, from which the whole
person is necessarily understood, as if he
were to say, "your neck," or "your trunk,"
or "your head," or "your body," or "your
vulva," — ««is divorced," — for by such words
the whole person is implied, the terms trunk
and body bearing that sense evidently, and
the others in common use : and they more-
over occur, both in the tradition, and also in
the Koran ; and, according to one tradition,
the term blood may also be used in the same
sense. Divorce takes place also where it is
applied to any general portion of the wife,
as if the husband were to say to her, "your
half," or "your third, is divorced;" — because
any general portion is a proper subject 01" all
acts, such as sale, purchase, and so forth, and
is therefore equally so of divorce ; but the
subject in question (to wit, the woman) is
incapable of division, and hence divorce is
established upon her in too, and is not re-
stricted to the portion mentioned.
Divorce when applied to any specific part
or member of the body such as does not (in
common use) imply the whole per son t is of
no effect.— Ir the husband say to his wife,
"your hand." or "your foot, is divorced,"
divorce does not take place. — Ziffer and
Shafei maintain that it does : and the same
difference of opinion subsists where the
divorce is applied to any other specific
member, or organ such as does not imply
* These and the succeeding forms of di-
vorce, literally rendered, are most of them
apparently unintelligible, or absurd; they
are each, however, to be considered as having
some peculiar force or effect, which it is im-
possible to express, or to convey an i dea of,
in translation.
the whole person, as the ear or the nose, &c.
—The argument of Ziffer and Shafei is, that
those members contribute to the matrimonial
enjoyments, such as kissing, touching, and
so forth, and whatever is of this description,
as beine a subject of the laws of marriage,
is a proper subject of divorce, and as such;
when divorce is applied to it, it takes placs
upon it, and consequenly extends to the
whole psrson, in the same manner as where
it is applied to any general portion such as
an half, and so forth ; contrary to the appli-
cation of marriage, to any specific member,
such as the hand or the foot, in which case
the marriage is not valid, because it is rot
conceivable that legality should be estab-
lished in that particular member, and extend,
in consequince, to the whole person, as the
illegality existing in the other members ex-
ceeds the legality in that particular member,
— whereas, the reverse holds in divorce. — To
this our doctors reply, that a specific member,
such as the hand or foot ; not being in itself a
proper subject of divorce, the application of
that too is null, the same as to a woman's
spittle, or to her nails, the ground of which
is that the subject of divorce must be some-
thing upon which a bond or connexion may
exist (as divorce implies the dissolution of a
bond or connexion), and there is no bond
upon the hand : for which reason it is that
the application of marriage to that part is
invalid ; contrary to a general portion of the
proper
subject of divorce also. There is "a similar
difference of 'opinion where the divorce is
applied to the belly or the back ; but it is
evident that here divorce does not take place,
as these parts are never used to imply the
whole person. t t
A partial divorce is complete in its effect.
—IF a man pronounce upon his wife an half
divorce, one divorce takes place, because
divorce is not capable of division, and the
mention of any portion of a thingt of an in-
divisible nature stands as a mention of the
whole ; and the fourth, or fifth, or any other
proportion of divorce, is analogous to the half,
in what is now said, for the same reason.
Equivocal.— IF a husband say to his wife,
"you are under three moieties I of two divor-
ces " three divorces take place, because the
half of two is one, and consequently three
moieties of two divorces amount to three.—
And if he were to say, "you are under three
moieties of one divorce," some are of opinion
that two divorces take place, this amounting
to one and a half ; but others allege that
it produces three divorces, because every
moiety, amounts to one complete divorce, on
the principle already stated : various doctors
agree in approving the former opinion.
AndtndV»ntte/orm.TlFaman say to his
wife, "you are under divorce, from one ;o
two," or "between on« and two,"' in this
case one divorce takes place ; and if he were
to say —"from one to three/' or "between
78
DIVORCE.
(VOL. I.
one and three/' two divorces take place, —
This is the doctrine of Haneefa — The two
disciples assert that by the first form two
divorces take place and by the last three—
Ziffer, on the other hand, maintains that by
the first form no divorce takes place , and by
the second one divorce only, this being con-
formable to analogy, because the boundaries
of a thing are not included in the contents ;
as for example, where a man says, "1 have
sold such a piece of ground, from this wall to
that wall/' in which case neither wall is in-
cluded in the sale. — The ground of opinion
of the two disciples is that, in such a mode
of speaking, the whole is by custom under-
stood, as for example, where one man says
to another, "taki of my property, from one
Oirm to a hundred/' which implies the whole
hundred. "...The argument of Haneefa is that,
in this indefinite mode of expression, no par-
ticular number is implied, any more than
where a man in discourse, says, "my age is
from sixty to seventy years," or "between
sixty and seventy/' by which he means some
indefinite term between tl^se two : and in
reply to the argument of the two disciples, it
is sufficient to obseive that the whole is to be
understood only where the expression relates
to a thing of an indifferent nature, as in the
instance cited by them ; but divorce is in
itself a dangerous and disapproved pro-
cedure ; and to what is advanced by Ziffer
it may be answered, that it is necessary that
the first boundary be in existence, so as that
the second may bear a relation to it ; but in
the present case the first boundary (to wit
divorce), is not in being, nor can be so, unless
by divorce taking place, which it accordingly
does of this necessity : contrary to the case
of sale, cited by Ziffer as apposite to this
because there both boundaries (understood
by the two walls) do actually exist previous
to the sale. It is to be observed on this
occasion, that if the husband, speaking in
the second form, intend only a single divorce,
it is admitted withGoo, as he may be allowed
to intend whatever construction the words
will bear, but it is not admitted with the
magistrate as being contrary to apparent
circumstances.
IF a man say to his wife, "you are ivorced
once by twice," intending the multiple or
multiplied product thereof, or not having
any particular intention, a single divorce
reversible takes place. Ziffer says that two
divorces take place, such being the number
understood from this mode of speaking in
arithmetic ; and this opinion is adopted by
Hasn-Bin-Zeead. But if, in speaking as
above, he intend to say, "you are divorced
once and twice," three divorce* take place
accordingly, because this way of speaking is
capable of that construction, as the word fee
[by] has also [in the Arabic] the sense of and :
if, however, the woman be unenjoyed, no
more than one divorce takes place, as in the
casejwhere a man says to his unenjoyed wife,
"you $ re divorced once and twice," but if
he in fend to say, "you are divorced once
with twice," three divorces take place, al-
though she should be unenjoyed ; — and if he
mean to express himself in a sense which
implies that the one is contained in the other
as if he were to say, "you are divorced
once in twice/' and divorce takes place, the
superadded words in twice being held to be
redundant, because divorce is incapable of
bei g a container.*
IF a husband say to his wife, "you are di-
vorced twice by twice," intending the mul-
tiple ; yet no more than two divorces cake
place. With Ziffer thr?e divorces take place,
because from this multiplying mode of ex-
pression is to be understood four divorces,
and three consequently take place, as being
the greatest lawful number.
Divorce with a reference to place. — IF a man
say to his wife, "you are divorced from this
place to Syria." a single divorce reversible
takes place. Ziffer says that it occasions a
complete or irreversible divorce, because,
where he thus gives the divorce a description
of length, it is the same as if he were to say,
"you are under a long divorce," and if he
were to say so, a complete divorce would take
place, and consequently the same in the pre-
sent instance. Our doctors, on the other
hand, allege that the sentence does not affix
any description of length to the divorce, but
rather the reverse, because when divorce
takes effect in any one place it does so in all.
IF a man were to say, "you are under di-
vorce in Mecca," divorce takes place upon
her immediately in every country ; and so
also if he were to say, "you are divorced in
this house," because divorce is not restricted
to any particular place, — and [if he were to
intend, by thus speaking, that "she shall
become divorced if over she should enter
Mecca, or that house," his declaration to this
effect is admitted with GOD but not with the
Kawzee, as the tenor of his words apparently
contradict this construction.
IF a man say to his wife, "you are under
divorce when you enter Mecca," in this
case no divorce takes place until she enter
Mecca, he having suspended the divorce upon
that circumstance.— And if he say, "you are
divorced in entering the house," this means
"if you enter the house," because the con-
taining particle frequently stands expres-
sive of a condition, and not being applicable
here in its containing sense, it necessarily
assumes the meaning of a condition.
Section.
Of Divorce with a Reference to Time.
IF a man say so to his wife, "you are di-
vorced this day to-morrow, or "you are
*The words in the original are, "Ante
Talikpon wahdetoon fee Sinnatinee," which
is an indefinite or equivocal mode of expres-
sion, as the word fee (amoni, various other
senses) bears those of by, with, or and, as
well as in, which accounts for the distinc-
tion here made, and the latitude permitted.
BOOK IV.— CHAP. II.]
DIVORCE
79
divorced to-morrow this day." in the first
instance divorce takes place on the instant,
and, in the second, on the baginning of the
morrow ; and the second word is in both
cases redundant ; because, whers he first
says "this day," divorce takes phce imme-
diately ou the present day, and consequently
is not procrastinated to the rmrrotf,— and,
on the other hand, where the first says "to-
morrow," the divorce is p-ocrastinated to the
morrow, and does not take place immediately
on the present day ; the second word is there-
fore redundant in both cases.
WHERE a man says to his wife, "vou are
divorced to-morrow," the divorc-: takes place
on the dawn of the ncxl morning ; and if he
should intend by the word "to-morrow" the
end of the morrow, it is so admitted with
GOD, but not with the Kazee, because this
contradicts appearances : but if he were to
say, "you are divorced in to-morrow," de-
claring his int ntion therein to be "at the
end of the morrow," it is admitted with the
Kazee, according to Hane fa, The two dis-
ciples say that it is not admitted with the
Kazee, although it be so with GOD, because
the words to morrow and in to-morrow are
one an'} the same thing, as the word to-
morrow is mentioned in an inclusive sense*
in both cas s, whence it is that, from the ex-
pression "to-morrow," divorce takes place
on the first instance of the ensuing day, where
the husband has no particular intention.—
The argument of Haneefa on this subject is
that the husband may be allowed to have in-
tended some such meaning from his expres-
sion, because the word in is introduced as a
Zirf; or particle of containance, which does
not require that the whole of the container
should be understood from it ; and the reason
why divorce takes place, in the present in-
gtance, from the beginning of the ensuing
day, where the husband had no particular
intention, is, that as nothing appears to the
contrary, its commencement is necessarily
determined to that period ; and regard being
thus had to necessity in the determination
of it, follows that if that speaker fix it at
the end of the day, this determination must
be regarded, a fortiori : contrary to his say-
ing, "you are under divorce to-morrow,"
(omitting the word in), in which case, if he
should have intended the end of to-morrow
his declaration to that effect is not admitted
with the Kazee, because the word to-morrow,
without in, occasions the woman to fall under
the description of being divorced for the
whole of to-morrow, which cannot be effected
but by the divorce taking place upon her in
the beginning of the day : and consequently
the end of the day, in this case, contra-
dicts appearances.
IF a man say to his wife, "you are under
divorce yesterday/' and it should so be that
• This is an Aratftc mode of expression,
implying no more than that here the particle
in is understood.
he was married as this day, 'divorce doss not
take place at all, because he has here re-
ferred divorce to a period in which he was
not competent to pronounce it, and therefore
his divorce is nugatory, the same as it he
were to say "you are under divorce before
my existence"— But, in the present case, if
he had married her before the time of which
he speaks, divorce takes place at the time of
his speaking ; because, if a .man signify a
divorce in the preterite form, it is an indica-
tion in the present, and hence the divorce
takes place accordingly, this expression
beine an indication of what is new, and not
a relation of what is past, as it docs not
appear that he pronounced any divorce
yesterday, so as that he should now give
intelligence thereof.*
TK a man say to his wife, "yau are under
divorce previous to your marriage with me,
—divorce does not take place, because he
applies the divorce to a period which for-
bids it, the same as if he were to say, "you
are under divorce in my infancy, or in
man say to his wife, "you are under
divorce upon my not divorcing you, or
-when I do not divorce you, and then re-
main silent, divorce takes place, because he
has here applied it to a time which ^ appears
the moment he ceases to speak.-l*ut, ifhe
were to say, " you are under divorce if I do
not divorce you," divorce does not take
mice until near the period of his decease,
because here the condition does not become
established until life be despaired of.
IF a man say to his wife, "you are under
divorce, whilst I do not divorce you, you
arc i divorced,'*!" she becomes divorced on
account of the last repudiation, to wit, "you
ared^vorced."-Thisis where the last words
of the sentence are uninterruptedly connected
with the Virst part of it, and proceeds upon a
Swurable construction, for analogy would
suggest that the first, divorce takes place also
(to wit, "you are divorced whilst I do not
divorce you") and thus both divorce would
take place, provided the woman be enjoyed;
and such is the opinion of Ziffer ; but the
reason for the more favourable construction
hire is that it is the intention of the vower
£ ^ fulfilhrs vow, in such a manner that he
may not be forsworn, which is impossible m
the present case, unless that portion of time
which may enable him to pronounce the
The reasoning here turns solely upon
.
creative sence.
book
law, in a
ChtPThis is one of the forms under which
divorce by vow is conceived.
80
DIVORCE.
[Vot. I-
correspondent to this occur in the Book of
Eiman.
IF a man say to a strange woman, "you
are under divorce the day upon which I
marry you," and he afterwards marry her in
the night, she is divorced ; because by day
is sometime meant the day time, and this
sense alone it bears where it relates to a
matter, of continuance (such as fasting, for
instance), and sometimes it is meant to ex-
press time in general, which sense it bears
where it relates to a transient or momentary
transaction and of this nature is the act of
divorce ; and consequently by the word day
in the present case, is to be understood time
generally, applying equally to day and night
both — Hut if the husband were to say that
by day he meant the daytime, and not time
generally, his declaration is admitted with
the Kazee, as he may be allowed to have in-
tended that constriction which is applicable
to the word day, since, according to custom,
day applies to the daylight, and night to
darkness.
Section.
IF a husband say to his wife, "I am
divorced from you," by this nothing is estab-
lished, although divorce be the intention :
but if he were to say, "I am separated from
YOU." or"I am prohibited to you,"intend-
ing divorce, becomes divorced. — Shafei
holds that divorce takes place in the former
instance also, where such is the intention
because the matrimonial right of possession
is equally participated by the husband and
the wife insomuch that the latter is entitled
to demand coition of the former, and the
former to demand admission to coition from
the latter, and the legality of the carnal en-
joyment also appertains equally to both ;
and divorce being used for the purpose of
dissolving the right, and the legality, the
application of it to the husband holds good,
an well as to the wife, and consequently
divorce takes place under the first of the
above froms, as well as under the second or
third. — The argument of our doctors is that
divorce is used for the removal of restraint
and this is found in the woman, but not in
the man (whence it is that a married woman
cannot go out of the house) ; and admitting
that divorce were used for the purpose of
dissolving the matrimonial right of posses-
sion (as advanced by Shafei, it may be re-
plied that the husband is the possessor of
the wife and the wife possessed of the hus-
band [whence the woman is called the mar-
ried, and the man the marrier), and conse-
quently possession applies to woman ;
contrary to separation or •prohibition, the
first of these being a total dissolution of
connexion, and the second of legality, both
of which equally appertain to each of the
parties : and hence the application of them
to either is equally forcible, whereas that of
divorce is of no force except when applied
to the wife.
IF a man say to his wife, "you are
divorced once or not," divorce does not take
place. The compiler of the Hedaya observes
that the same is said in the Jama-Sagheer ;
nor is any difference of opinion recorded
there. This is what is said by Haneefa, and
in one place by Aboo Yoosaf. According to
Mohammed (with whom Aboo Yoosaf in
another place coincides) a single divorce re-
versible takes place; and in the book of
divorce in the Mobsoot it is recorded that,
where the husband says to his wife, "you
are divorced once or nothing" a single
divorce reversible takes place, according to
Mohammed ; now between this and the pre-
ceding form there is no sort of difference,
and consequently, if the case cited in the
Jama-Sagheer be the opinion of all the doc-
tors, it follows that there are two opinions
recorded from Mohammed upon the point,
— The argument of the latter is that the
number is rendered dubious on account of
the particle of doubt "or" intervening
between the word "once" and the negative
"not," wherefore regard to the former drops,
and his words remain;"you are divorced:"
contrary to a case where he says, "you are
divorced or not," in which instance divorce
does not take place, since in this last case
the doubt exists with respect to divorce it-
self.— The arguments of Haneefa are drawn
from the Arabic idiom.
IF a man say to his wife, "you are divorced
after my death," or "after your death ; "no
consequence whatever ensues from this
expression, because, in the first instance, he
has applied the divorce to a time which for-
bids it, since a husband is not competent to
the execution of divorce after death ; and,
in the second, the woman no longer remains
a fit subject of it ; and both these circum-
stances are essential to a legal divorce.
Separation takes place upon either party
becoming possessed of the other as a slave —
IF a husband become the proprietor of his
wife [as a .slave] either wholly or in part, or
a wife the proprietor of her husband, sepa-
ration takes place between them, possession
by bondage and possession by matrimony
being irreconcilable ; — in the latter instance,
because, if separation were not to take place,
it would follow that the wife is at once the
possessor and the possessed (she falling
under the latter description by virtue of
marriage) : — and, in the fomer instance,
because possession by matrimony is estab-
lished of necessity, and when the husband
becomes actual possessor of his wife's per-
son, this necessity ceases, and consequently
possession by matrimony also.
Or upon a husband purchasing his wife.
— IF a man purchase his own wife [as a
slave], and afterwards divorce her, divorce
does not take place, because without the con-
tinuance of marriage it cannot exist, and in
the present case the marriage has ceased in
every shape whatever, since it does not con-
tinue even with respect 10 Edit ; and in the
same manner, when a wife becomes possessor
of her husband, either wholly or in part, if
BOOK IV.-CHAP. II]
DIVORCE.
81
the latter were to divorce her, his divorce does
not take effect, because in this case also the
marriage has ceased, for the resons before
assigned — Mohammad says that in the latter
case divorce holds good, because the woman
is enjoined an Edit, and hence the marriage
continues in one shape : contrary to a case
where the husband purchases his wife, for
then the marriage totally ceases, because she
is not under any obligation of Edit with
respect to her husband, who is now her pro-
prietor, and has a right to continue carnal
cohabitation with her in that capacity.
The divorce of a wife (being a slave) when
suspended upon the emancipation of her
owner, takes place upon the occurrence of that
condition — IF a man marry the female slave
of another, and say to her, "you are divorced
twice upon the manumission of your owner,"
and her owner afterwards emancipate her,
the divorce takes place ; but it is still in the
husband's power to reverse it, because he
has suspended the divorce upon the manu-
mission of the master, and that is the con-
dition of it (as a condition is a thing not
existing at present, but the occurrence of
which is probable, and this case actually
takes place on manumission, wherefore that
is the condition, and divorce is suspended
upon it) ; and divorce taking place after the
occurrence of the condition, it follows that
it takes place upon her as a free woman, and
hence she is not, by two divorces, rendered
prohibited* by a rigorous prohibition.
IF the person in question were to say to
the female slave, his wife, "when to-morrow
arrives you are free," in this case it is not
lawful for the husband to marry her again,
until such time as she has been married to
another man, and repudiated by him, and
her Edit (which is three terms of her courses)
has elapsed. — This is the doctrine of the two
Elders. — Mohammed says that the husband
is at liberty to reverse the divorce, since the
execution of the divorce is connected with
the master's manumission, because the nus-
band has suspended his repudiation*upon
the same circumstance on which the master
has suspended his manumission ; hence the
repudiation is (as it were) associated with
the emancipation ; and freedom being also
associated with the emancipation, it follows
that the execution of divorce is, of course,
associated with freedom, and the divorce
takes place upon the slave after freedom
(whence it is that the Edit of the woman
here treated of is fixed at three terms of her
courses, whereas if she were a slave, her
Edit would be two terms only), and such
being the case, reversal is approved, in this,
as well as in the preceding example. The
•Three divorces being the utmost num-
ber to a free woman, and two to a slave, it
follows that if two Divorces take place upon
a woman as a slave, becomes irreversibly
divorced. (See Chap. I).
argument of the two Elders is that the hus-
band has suspended divorce on the some cir-
cumstance upon which the master has sus-
pended freedom ; and as that takes place
upon the woman whilst she is yet a slave, so
does divorce likewise ; now the slave becomes
forbidden [in marriage to her husband], in
consequence of two divorces, by the rigorous
prohibition, wherefore reversal is not ap-
proved ; nor does it become lawful to him to
marry her till such time as she shall have
been possessed by another husband ; but this
reason does not apply to the Edit, since that
is a matter of caution, which is evident from
fixing its duration to three terms of the
courses, so that the complete fulfilment of it
may be indubitable : and with respect to
what Mohammed says, that, "as repudiation
is connected with freedom, divorce takes
place after freedom," it is of no weight, be-
cause, if freedom be connected with manu-
mission, on account of the one being the
cause of the other, and if the repudiation
and manumission be associated together in
such a manner that repudiation and freedom
must take place at the same time, we reply
that divorce is also associated with repudia-
tion, on account of the latter being the cause
of the former; whence it follows, that free-
dom is associated with divorce, and not that
divorce takes place subsequent to freedom.
Section.
Of Divorce by Comparison and the
several descriptions of it.
The number of divorces may be determined
by signs made with the fingers. — IF a man
say to his wife, "you are under divorce
thus," holding up his thumb and fore and
middle finger, three divorces take place, be-
cause from the holding up of the fingers
number is customarily understood, where
the sign is associated with a relative to
number ; and the word "thus" is of this
kind ; and the fingers held up are three in
number , whence three divorces are to be
understood : — and if the sign be given with
one finger, a single divorce takes place ; if
with two fingers, two divorces. — It is to be
observed thas the sign is to be understood
from the fingers which are extended, and
not from those which are clenched. Some
of our modern doctors, however say that, if
it be made with the back of the fingers, it is
understood from those which are clenched.
— And if the divorcer were to say, "I have
given the signal with the two clenched
fingers," whilst at the same time he had
actually given it with the extended fingers,
his declaration V credited with GOD, but not
with the Kazee ; and so also where he says,
"I have intended the signal by the palm of
my hand, and not by the fingers ;" insomucH
that two divorces take place [in the first in-
stance, and one in the last, in a religious
view ; because signs are made with the shu
fingers, or the palm of the hand, as.well as
with the extended fingers, and hence he may
be allowed to have intended to express the
82
DIVORCE.
[VOL. I.
number of divorce by signs capable of that
construction : but it contradicts appearance?.
But not unless t to be expressed with a rela-
tion to number. — AND in the ca^-e now under
consideration, if the word "thus" be omit-
ted, and the sign be made with the th^mb
and fore and middle finger, vet one divorce
only takes place, because the sien is not
associated with the relative, and hence the
words only remain, to wit, "you are divorced"
from which one divorce onlv results.
Divorce pronounced with an expression nf
vehemence is irreversible in it* effect. — Ira
man give to the divorce which he is pro-
nouncing a description of particular vehe-
mence or amplification, as if he were to say,
"you are divorced irreversibly " or "you
are divorced to a certaintv," an irreversible
divorce takes place, whether the wife whom
he so addresses may have been enjoyed or
not — Shafei says that the divorce is rever-
sible where she has bren en joyed, because
reversal during ^Eclit, after divorce from a
wife already enjoyed, is sanctioned by the
precepts of the law, and brinqincr it under
the description of irreversibilitv is c-mtrary
to them ; thus a husband is not at liberty to
pronounce, upon an uncnjoyed wife • a divorce
irreversible ; the word "irreversibly," there-
fore, is nugatory on this occasion, a* much
as if he were to say, "you are divorced, with
this condition, that no right of reversal re-
mains to me." The argument of our doctors
on this point is, that the man has pronounced
the divorce under a description which it is
capable of bearing because divorce takes
place irreversibly upon a wife unen joyed (and
also upon any 'other, at the expiration of the
Edit) ; and such being the case, the divorce
takes place in this case irreversibly upon an
enjoyed wife, the same as upon one unenj ved,
the husband having, by his description,
specified a circumstance which is really
applicable to divorce. And with respect to the
case of rcveri il b^ing mentioned as an addi-
tional condition (as cited bv Shafei in sun-
port of his doctrine), it is not admitted ;
because theu also a divorce irreversible takes
place, where it is pronounced either without
intention, or with the intention, of two di-
vorces ; but where three divorces are in-
tended, that number must take place, as
irreversibility bears the construction of three
divorces.
IF a man say to his wife, "you are divorced
irreversible/' or "you are divorced to a
certaintyf and intend by his words "you
are divorced," to express one divorce, and by
the additional words "irreversibly," or "to
a certainty," another divorce, two divorces
irreversible take place, as these expressions
are of themselves capable of effecting divorce.
IF a husband say to his wife, "you are
under a most enormous divorce." a divorce
irreversible takes place, because divorce is
ctthus described only with a view to its effect
in the immediate dissolution of the marriage
and hence the description of it by enormity
is the same as by irreversibility. And it is
the same if he were to say, "a most base
divorce," or "the worst kind of divorce;
and so also if he were to say, * a diabolical
divorce, or "an irregular divorce ;" because
reversible divorce is restricted to those of the
regular description [or Talak-al-Sonna], and
consequently all others are of an irreversible
nature. — It is recorded as an opinion of Aboo
Yoosaf, that, where the husband says "an
irregular divorce," a divorce irreversible
does not follow, unless such be the intention,
because irregularity [BidJat] in divorce is of
two kinds,— one originating in the circum-
stance under which divorce is executed (as
where it is pronounced upon the wife during
her courses), — the other, in the nature of the
sentence fas where the husband pronounces
the divorce irreversible in direct terms), and
hence it is indispensably requisite that the
intention be regarded It is also recorded
as an opinion of Mohammed, that from the
use of the descriptions irregular or diabo-
lical, a divorce reversible takes place, any
divorce may be thus described, not with a
view to irreversibility, but merely to the irre-
gularity of the circumstances under which
it is pronounced (as where it is pronounced
upon the woman during her courses), and
hence the divorce is not irreversible, unless
such be the intention,
IF a man say to his wife, "you are under a
divorce like a mountain," a divorce irrever-
sible takes place, according to Haneefa and
Mohammed —Aboo Yoosaf holds that the
divorce is reversible, because a mountain is
a single thing, and hence the comparison
of divorce with a mountain gives the former
a descripition of unity. The argument of
the other two sages is, that sirmle, in divorce,
is always used in an amplifying sense ; and
amplification implies irreversibility ; whence
a divorce irreversible is the effect.
IF a man say to his wife, "you are under
a most vehement divorce," or "you are
divorced like a thousand," or "a houseful,
one divorce irreversible takes place, unless his
intention be three divorces, in which case
three take place accordingly. The divorce
is irreversible from the first of these forms,
because it is there mentioned under a de-
scription of vehemence which occasions irre-
versibility, as applying something in its
nature decisive, and incapable of recall,—
whereas, divorce reversible is capable of re-
call, and therefore the description of vehe-
ment does not apply to it ; and it is irre-
versible from the second form, because this
simile sometimes expresses force, and some-
times number (as it is said, for instance, that
such a man is like a thousand, by which it
is to be understood that he is possessed of
uncommon strength), and hence the inten-
tion applies with equal propriety to either
sense ; and where no intention exists, the
least extensive meaning of the two is adopted,
to wit, one divorce irre/ersible ; and|rom
the third form, because a house may be filled
either by the magnitude of its contents, or
by the number, and hence the intention ap-
BOOK IV.— CHAP. II. ]
DIVORCE.
83
plies with equal propriety to either circum-
stance ; and where no intention exists the
least extensive sense is adopted, as above.
Divorces when pronounced with a simile,
is almays irreversible. — IT is a rule, with
Haneefa, that whenever divorce is thus
pronounced with a simile, it produces a
divorce irreversible,- whatever the thing
may be with which it is compared, and
whether the magnitude of thit thing be
mentioned or not ; it having been before
remarked the simile in divorce is al vays
used in an amplifying sense ; and amplifica-
tion implies irrewrsibihty — Aboo Yoosaf,
on the other hand, holds, that if the magni-
tude of the subject of simile b> mentioned,
the divorce is irreversible, but not otherwise,
whatever that may be, because a simile may
sometimes be introduced merely to express
unity ; wherefore indefinte comparison is
not to be taken in an amplifying sense ; but
where the magnitude is mentioned that un-
doubtedly is to be construed amplification ;
and hence irreversibility is established. —
Again, Ziffer maintains that if the subject
of simile be of such a nature as conveys an
idea of magnitude, the divorce is it rever-
sible, but otherwise not. Some commenta-
tors allege that Mohimmed coincides with
Haneefa on this point ; others, thit he agrees
with Atno Yoosaf. The nature of these
diversities of opinion is exemplified in a
case where a man says to his wife, " you are
under a divorce like a needle," or "like
the size of a needle's eye," or "like a moun-
tain/' or "like the size of a mountain ;"
for under the first of these forms the divorce
is held to bz irreversible by Hmeefa alone :
under the sec md it is so with Haneefa and
Aboo Yoosaf, and not with Ziffer ; and under
the third it is so with Haneefa and Ziffer, and
not with Aboo Yoosaf ; but under the fourth
form it is irreversible with them all.
IP a man say to his wife, "you are repu-
diated by a heavy divorce," or "by a broad,"
or "by a long divorce," one divorce irrever-
sible takes place ; because a thing of which
the reparation is impraticable is called
heavy, and an irreversible divorce is of this
kind, inasmuch as the reparation of it is
difficult ; and with respect to those things of
which the reparation is difficult, it is com-
mon to say, "they are long and broad" — It
is recorded from Aboo Yoosaf that the divorce
thus occasioned is reversible, because the
descriptions of difficulty, length or breadth,
do not apply to divorce, and are therefore
nugatory. And if the man should, by any of
these sentences, intend three divorces, it is
approved because separation is divided into
two kinds, the light and heavy, so that when
the heavy (which is three divorces) in parti-
cularly specified, it is held to be efficient.
Section.
Of Divorce before Cohabitation.*
Three divorces take place upon an unen-
•Divorce pronounced upon a woman be-
fore cohabitation is in all cases complete and
joyed wife when they are pronounced together,
but only the first when they are pronounced
separately. — WHEN a man divorces a woman
before cohabitation, by saying to her, "you
are divorced thrice," three divorces take
place upon her, because he has here given
three collectively ; but if he pronounce the
three separarely, saying, "you are divorced,
—divorced,— divorced," one divorc* irrever-
sible takes place from the first, but nothing
from the second or third, because each repe-
tition of the word "divorce" is a separate
execution of divorce ; and the first of them
having already rendered the woman deci-
sively and irreversibly divorced, it foil ws
that the second and third cannot take effect
upon her. And it is the same where he says,
"you are divorced once and again" (where
a single divorce takes place), because the
woman becomes completely divorced by the
first part of the sentence.
IF a man say to his unenjoyed wife, "you
are divorced once," and the woman should
happen to die before the word "once" be
pronounced, in this case divorce does not
take place, because he has here associated
the number with the divorce, which conse-
quently ought to take place accordingly ; but
the woman dying before the number is men-
tioned, no subject of divorce remains at the
time when it should take place, and hence
the execution of it is null ; and so also,
where he says, "you are divorced twice"
or "thrice." . . it
IF a man say to his unenjoyed wife, you
are divorced once before once," or once,
and, after that, again," a single divorce
takes place ; tut if he were to say, "you are
divorced once, and previous thereto once,"
two divorces take place ; and so also if he
were to say, "you are divorced once after
once." The proofs are all drawn, in this
case, from the Arabic idiom. And if the
man say, "you are divorced once with
once," or "once along with once," two di-
vorces take place, because of the associating
particle with, which makes the lentence
appear as of two divorces collectively. Aboo
Yoosaf says that, under the second form,
one divorce only takes place ; his proof is
drawn from the Arabic idiom. In all these
instances it is to be remarked, that two di-
vorces would take place upon an enjoyed wife.
IF a man say to his unenjoyed wife, it
you enter the house you are divorced once
and again," and she afterwards enter the
house, a single divorce only takes place upon
her, according to Haneefa. The two dis-
ciples say that two divorces take place, out
if he were to say, "you are divorced once
and again, if you enter the house, and sn«
afterwards enter it, two divorces take place
upon her, according to all. And it he de-
clare the same sentence, with a variation m
the construction of it, thus, "you are di-
iTTeveTiible. An attention to this rule is
necessary to the understanding of several
cases in this section,
84
DIVORCE.
[VOL. I.
vorced once,— and again if you enter the
house," Koorokhee has said that here also
there is a difference of opinion, one divorce
only taking place with Haneefa, and two
with the two disciples. Abpo Lays, however,
observes that here one divorce only takes
place, according to all the doctors, as under
this construction the last member of the sen-
tence is utterly distinct and separate from
the first, and this is approved. m
In implied divorce.— THE second kind ot
divorce, namely Talak-Kinayat, or divorce
by implication, is where a man repudiates
his wife (not in express terms), but by the
mention of something from which divorce
is understood ; and divorce does not take
place from this but intention or circum-
stantial proof, because the implication is
not used to express divorce alone, since it
may mean divorce, and also something else,
and hence intention or circumstantial proof
are requisite to determine the construction
in which it is to be taken.
In implied divorce are •three forms which
effect a reversible divorce. — THE compiler of
the Hedaya observes that implication is of two
kinds. The FIRST is that form which a single
divorce reversible takes place ; and this con-
sists of three forms of words, to wit, —
— "Count 1"— "Seek the purification of your
womb I"— -"You are single 1"— of the FIRST,
because to count means enumeration, and
hence the word "count 1" bears two con-
structions, one, "count 1" (the courses that
are incumbent upon you)," and the other,
"count 1 (the blessings of Almighty God) ;"
and if the speaker intend ther former mean-
ing divorce is the ascertained construction
of the word, in virtue of such his intention ;
and here the divorce takes place, of neces-
sity, from his having desired her to count
her courses, which other is of no force except
where he has divorced her. because previous
to the divorce, the counting of her courses
was not incumbent upon her. and hence it is
the same as if he had said, "vou are di-
vorced, and count !" And as this necessity
is sufficiently answered by a reversible di-
vorce, a reversible divorce accordingly takes
place. And of the SECOND, because "seek
the purification of your womb I" may either
mean, "see that your womb be free from
progeny, in order to your getting another
husband" (since this expressly applies to
the same thing as is designed by the pre-
ceding word "count," and therefore may,
in the present case, stand intsead of it), or
it may mean, "see that your womb be free
from progeny, in order that* I may divorce
you ; and where the husband intends the
former meaning , a divorce reversible takes
place, tht same as in the preceding case.
And of thcTniRD, because "you are single I"
may either mean, * 'you are repudiated by a
single divorce" (and where such is the in-
dention^ a single divorce reversible takes
place, as by this form such a divorce is
effected), or it may mean, "you are single
are single (among women, in beauty, and
so forth "). Thus, these words bearing a
variety of constructions, intention is essen-
tially requisite to their effect ; and it is to
be observed that those forms occasion no more
than a single divorce, because such forms
amount to "you are divorced ;" and as
where the words "you are divorced" are
expressly mentioned, no more than a single
divorce takes place, so also, in this case, a
single divorce only takes place a fortiori,
because mere implication is weaker in its
effect than the express mention of anything.*
Seventeen which effect an irreversible di-
vorce.— AND from all other implications of
divorce besides those three, where divorce
is the husband's intention, a single complete
(or irreversible) divorce takes place ; or if
he intend three divorces, three divorces take
place : or, if two, two divorces ; and these
expressions of implication of divorce areas
follow : — ' You are separated !" — "vou are
cut off 1"-— "you are prohibited !"— "the
reins are thrown upon your own neck 1" —
"be united unto your people !"— "vou are
devoid 1" — "I give vou to your family !" —
"I set you loose I"— "your business is in
your own hands !" — you are free !" —
"veil yourself I"— "be clean ["— "so forth f"
— "go to!" — "go !" — "arise 1" — "seek for
a mate I" — all which expressions are impli-
cative of divorce, as each of them bears a
construction either of divorce or otherwise ;
since "you are separated !" may either mean
you are separated (from me in marriage"),
or "Vou are separated (from your familv"),
In the same manner, "you are cut off I"
may ^ either mean "you are cut off (from
marriage") or "vou are cut off (from your
familv and friends") : and so also "you are
prohibited !" may either mean "you ar«
prohibited (in marriage"), or "you are
prohibited (to me as a companion because of
vour evil disposition"). In the same manner,
"the reins are thrown upon vour own neck I"
may either mean "you are at liberty to «?o
where you please (as I have divorced vou),"
or "yon mav go to visit your parents," and
so forth) ; and so also, "be united unto your
people 1" mav either mean "return to your
family (as I have divorced you,") or ("as
vou are unfit for society on account of the
badness of your disposition"). You are
devoid." may, in the same manner* either
mean "you are devoid (of marriage)," or
"you are devoid (of virtue and religion) ; and
so also, I give you to your family !" may
either mean, "I return vou to vour family
(as I have divorced you), or, "I return you
to your family (on account of your evil
disposition, in order that you may remain
there") ; agreeably to the same mode of rea-
soning, I set you loose I" may either
mean "I set you loose (from the restraint
i or no otnor alrtnir urif-K von
•An observation it here introduced in the
text, which, as it turns upon a point of
grammatical criticism, is incapable of trans -
latirkn at\/l i« thor»fir\rf» n»rf»ftaari1v
BOOK IV.— CHAP. II.]
DIVORCE.
of marriage, as having divorced you)/' or
"I set you loose (to go where you please) ;"
so also, "your business is in your own hands/'
may either have respect to divorce, or in anv
other circumstance ; and "you are free !"
may either imply "you are free (from the
bond of marriage)/' or, "you are free (as
not being a slave)/1 and as also, "veil
yourself!" may either mean "veil yourself
(from me as I have divorced you)/' or, "veil
yourself (that vou may not be seen by ^a
stranger) ;" in the same manner, "be clean 1"
may either mean, "ascertain whether your
womb be free from seed, that you mav be en-
abled to marrv with another man," or, "that
the descent of a child begotten upon you may
be known ;" and so also, "cro forth 1" may
either mean, "go forth (as I have divorced
you)/' or. "go forth (to visit your parents);"
and, "go to 1" — "go !" — "arise 1" — may
cither signify, "go to (and so forth) as I
have divorced you," or, "go to (and so
fortM and do not provoke me to divorce
you ;" so also, "seek for a mate 1" may
either mean, "seek for a husband, as I have
divorced you/' or, "seek for a proper com-
panion to sit with you :" since, therefore, all
those expressions admit the construction
either of divorce or otherwise, the intention
is essential to their effect, except where the
husband uses them in reptv to a requisition
of divorce made by his wife, in which case
the Kazee is to decree a divorce, but vet it
does not exist as a divorce between the hus-
band and God, unless surh was his intention.*
THE compiler of the Hedava observes that
Kadooreehas not made any distinction what-
ever between these expression* in divorre :
on the contrary, he has said, "from all those
expressions, when used in renlv to a reouisi-
tion of divorce, a divorce takes place, inde-
pendent of the intention, in a legal view, but
not in a religious view," whereas jt is not so,
this rule being confined to such expressions
as are incapable of beinc construed into a
denial of the requisition of divorce.
IT is to be observed as a rule, that there are
three possible situations in which the person
making use of these expressions mav stand ;
FIRST, a general situation, that i». where he
is neither swayed by anger, nor by any re-
quisition of divorce, but acts from an un-
biased volition ; SECONDLY, where divorce is
the subject of discourse at the time of speak-
ing (as, for instance, where it is demanded
of him by his wife) ; THIRDLY, where he is
under the impulse of anger. The expres-
sions of implication are also of three kinds : —
FIRST, those which equally bear a construc-
tion either of denial or assent ; — SECO> DLY,
*That is to say, although divorce take
place in point of law from the judicial decree,
yet in foro conscientiae the man must con-
tinue to hold hi ma* If married, insomuch that
he cannot, without sin, marry another wo-
man, in lieu of her who is thus divorced.
This is the distinction between law and reli-
gi on in divorce throughout.
those which can be construed into assent
only : — and, THIRDLY, those which may be
construed either into assent, or into excla-
mations of contumely and reproach ; and, in
the first of these situation, divorce does not
take place from any of those expressions, but
by intention ; and if the husband declare
that he had no such intentions, his declara-
tion is to be credited, because they all bear a
double construction, and hence the intention
is necessary to establish the effect ; and, in
the second situation, divorce takes place in-
dependent of the intention in a legal view,
and the declaration of the husband is not to
be credited, where he has used expressions
bearing a construction of assent only ; which
are as follow : —
"You are disengaged 1"
"You are separated I"
"You are cut off 1"
11 You are prohibited 1"
"Count !"
''Your business is in your own hands I"
"Choose !"
The reason of which is, that the evident
meaning of the husband, in using them in
reply to a requisition of divorce is divorce,
as they do not bear a construction of denial ;
but if, in this situation, the husband use any
of these expressions which may be construed
equally into denial or assent, divorce does
not take place but by intention ; and the
Declaration of the husband, with respect to
his intention is to be credited. The expres-
sions alluded to are as follow : —
"Go 1"
"Got up I"
"Veil yours'elf 1"
"Get out 1" and so forth ;
because these words may all be construed
into denial of the request : and as the denial
of a request is a circumstance less forcible
than the act of divorce, they are rather to be
taken in the former sence : but yet, as they
also bear a construction of assent they occa-
sion divorce, where such is the intention.
Those expressions may be construed into a
denial of the request, on account that, "Go!"
may mean, "quit thus speaking ; Be
gone I and do not talk thus ;" and the same
of "Veil yourself!" as a direction to put
on the veil sometimes implies an order to go
away ; wherefore it may imply on this occa-
sion, "go away, and leave off speaking in
this manner ;" and the same also of, ' get
out |"_but, in the third situation, divorce
does not take place without the intention of
the speaker, from the use of any expression
of implication, except such as may be equally
construed into assent, and into exclamations
of contumely and reproach ; and those are
the three following :—
"Count !"
"Choose !"
"Your business is in your own hands IV
from all of which, when used in arffeer, di-
vorce takes place in point of law, indepen-
dent of intention ; and the declaration of the
86
DIVORCE.
[VOL. I.
husband, denying such intention, is not t<
be credited, because the circumstance o
anger proves the intention to be divorce — I
is recorded from Aboo Voosaf that if the hus
band were, in ang_>r, to say, "I have no
property in you !" or, "I have no contro
over you 1" or, "I give you your own way !'
or, "I have separated from you !" or "join
yourself to your people !" His declaration
is credited, even where he denies having in
tended divorce, because these expressions
may ail be construed into exclarmtions of
contumely or reproach, as well a* of divorce ;
as his words, "I have no property in you !"
may mean, "because you are so bas<i that
you are incapable of being considered as a
property ;" and, in the same mann»r, his
words, "I have no control over you!" may
mean, "because of the wickedness and stub
bornness of your disposition;" and so also,
"I give you your own way !" may mean,
" because J cannot direct you ;" and, in like
manner, "I have separated from you !" miy
mean, "because of your vicious disposition,"
WHAT has just been stated, viz , that
"where the husband says, you are separated !
or, you are cut off ! divorce irreversible takes
place," is the opinion of our doctors — Shafei
has said that the divorce occasioned by these
words is reversible, because the reason why
those expressions occasion divorce is, that
they are implication of divorce ; whence it
is that the intention is a condition of their
effect, and also, that the divorce occasioned
by them is complete in part of number, the
same as in an express divorce, where the
husband is authorized to pronounce three
divorces, and having given cme, his autho-
rity remains with respect to two other ; —
and also, that if he intend three divorces,
three take place accordingly ; and such being
the case, reversal is lawful here in the same
manner ^as in an express divorce, the thing
which is implied. The argument of our
doctors on this point is, that the act of irre-
versible divorce has proceeded in this case
from a competent person, and is exercised
upon a fit subject of it, according to the
power by law established over the wife,
which enables her husband to put. her away
in such a manner as that she shall be deci-
sively and irreversibly separated from him ;
and here the husband is competent to the act
of irreversible divorce, as being of sound
mind and mature age ; and the wife is a fit
subject of it, as being lawfully liable to
irreversible divorce before cohabitation (and
also after it where for husband pronounces
it for a compensation) ; and this power, like
many others, is instituted bf the law with a
view so the convenience of the individual,
which sometimes requires a decisive sepa-
ration to be effected slowly and deliberately
(as in divorce reversible), wnereas, at other
times, it requires that such a separation
should take place on the instant, without
any continuance of connexion with the sub-
jectof it (asm the triple form ofdi >rce),
an^ at other times it also requires separation
to be completely effected on the instant
admitting a continuance of connexion with
the subject ; and it is indispensably neces-
sary that this last species of irreversible
separation be also countenanced by the law,
in order that the door of r?piration may not
be closed aiainst the husbind if he should
repent (that is to say, that it miv remain in
his power again to marrv his wife, without
her bein? previously married to another) ;
and also, in order that the woman's delicacy
may be prese'vH fr->m the effect of a divorce,
by the man takin? her back w thout the
intervention of marriage with another ; and
such being the case, divorce irreversibly
ensues from those expressions. Mn reply to
the assertion of Shafei, we observe that those
expressions are not positively implications,
since each of them may be used in its own
literal sense ; — and as to what he further
alleges, that "the intension is a condition of
their effect" (thence inferring that they are
undoubtedly implications of divorce), the
inference is not admitted, because the inten-
tion is made a condition for the purpose of
ascertaining one of two species of separation,
and it is thus made a condition for the
purpose of ascertaining one of two sorts of
a separation which is a separation from
marriage, and not for the purpose of divorce
taking place : with respect to what Shafei
further advances, that "the divorce occa-
sioned by any of those expressions is incom-
plete in point of number" (thence inferring
that they are implication* of divorce), we
reply that the piucity of the number of
divorces is not on account of those expres-
sions beinq implications of divorce, but
because divorce is established on account of
the connexion of marriage becoming dis-
solved ; that is to say. on account of those
expressions the tie is dissolved, and divorce
sit?nifi«.s the dissolution of a tie, wherefore
divorce is 'necessarily established ; the infe-
renc'e, therefore, is that the taking place of
divorce, is involved ; but not that the afore-
said expressions are implications of divorce ;
—and with respect to what he further says,
".hat "if the hu«bind intend three divorces
rom the use of any of those expressions,
hree take place accordingly" (infering that
hey are implications of divorce), we reply
:hat the intention of three divorces from
those expression is approved only as three
divorces is one species of separation (for
separation is of two species, — the mild and
the rigorous*), and, where there is no inten-
*By the mild separation is meant that
jpecies of complete divorce which admits of
he husband re-marrying his repudiated wife
without the necessity of her intermediate
marriage with another. By the rigorous
eparation is meant that sort of complete
divorce which does not admit of the man
re-marrying his repudiafed wife until she
shall have been married to, enjoyed, and
epudiated by another man. They have
been already fully explained.
BOOK IV.— CHAP. Ill
DIVORCE
87
tion, the least forcible is established. It is
to be observed that an intention of two
divorces is not approved with our doctors •
contrary to the opinion of Ziffer : but this
has already been treated of.
IF a man say to his wife, "count ! — count !
^hp°rrn* f ?ud afterw?4s declare that by
the first of these words he meant divorce
and by the others the repetition of the
woman s courses [requisite to its completion!
his declaration is credited in point of law as
he appears to have intended these last words
in their true sense, it being customarv for
alu'sband, where he divorces his wife to
desire her to count the course necessary to
the completion of her Edit ; and hence
appirent circumstances bear evidence to his
intention; but if he were to confess that in
these last words he had no particular inten-
tion, three divorces take place, because
from his ^tending divorce by the first word,
it follows that he repeated it a second and
third time, in a situation where divorce is
the subject of discourse, and this situation
proves his intention in these repetitions to
be divorce also ; wherefore if he were to
deny this intention, yet he is not credit^
circumstances bearing evidence against him
contrary to where he declares that he had no
intention of divorce m any of the three
words for there divorce does not take place
at all, because circumstances do not tend to
disprove his declaration ; and contrary, also
to where he declares divorce to be his inten-
tion in the third word, but not in cither of
the two preceding m which case no more
than one divorce takes place, because, as he
docs not put the construction of divorce upon
the two preceding words, it does not appear
hat divorce was the subject of discourse at
the period of his speaking the last. Tt is
to be observed that the declaration of the
speaker in denial of his intention is not to
be credited, unless it be given, upon oath,
because he relates what, having passed ableW
m his own mind cannot be knownto any
other Person,-and hence he is the Ameen ,
or inquisitor, with respect to the intelligence
CHAPTER HI.
OF DELE CATION OF DIVORCE
Definition of the phrase. -TAFWEEZ AL
TALAK, or delegation of divorce, is where the
husband delegates or commits the pronounc-
ing of divorce to his wife, desiring her to
give the effective sentence, and it is compre-
hended under three different deeds, termed
Option, Liberty and Will.
Section 1.
n . A . Ofjkhtiyar or Option.
Delegation by Option confers on the wife
a power of divorcing herself; but this right
of option is restricted to the' precise place or
nutation in which she receives, it.-Iw a man
say to his wife "choose I" (thereby meaning
divorce), or "divorce yourself 1" the woman
has a power to divorce herself so long as she
remains in the precise situation* in which
she received it ; but if she remove, or turn
her attention to anything else, the power
thus vested in her is done away, and her
option no longer remains, because the exerise
of the optional power thus committed to the
woman is held, by all the companions, to be
restricted to the precise situation in which it
is received : and also, because this species of
delegation is a transfer of power, not a com-
mission of agency, and to give effect to the
farmer, the reply is required on the spot of
declaration, the same as in sale, since all the
moments of one situation are accounted as a
single moment : but a situation may be
altered, sometimes by change of place, at
other timrs bv chance of employment, because
a situation of eating and drinking (for in-
stance) is not that of disputation ; and a
situation of business, on the other hand, is
neither a situation of eating or drinking,
nor of disputation.
And is annulled by her 'removal. — THE
right of option of the woman is annulled,
upon the instant of her rising from her seat,
as that circumstance proves her rejection of
it : contrary to the case of SiU:m or a Sirf
sale, which Hoes not become null upon the
instant of rising or removing, the cause of in
validity there beins removal without seisin.
Intentinn on the part of the husband, is
requisite to constitute a delegation.— AMD
where the husband thus addresses his wife,
an intention of divorce is a condition requi-
site to tru> effect (as mentioned in the preced-
ing chnnter) because the word "choose 1"
is one of the implications of divorce, as it
is capable of two constructions, by one it
desires the woman to choose herself, and by
another to choose her clothes, and so forth :
anrl if she choose herself, f and divorce irrever-
sible takes place. Analogy would suggest,
in this case, that from choosing herself
nothing whatever should ensue, although
divorce be the intention of the husband, be-
cause he cannot himself effect divorce by
the use of such words; that is to say, if he
were to say to his wife, "I have choosen my-
self from you," nothing whatever would
follow, and consequently how can he give a
delegation of this nature ?— But here divorce
takes place upon a more favourable construc-
tion, for two reasons:— FIRST, all the com-
panions acre* that divorce takes place from
the use of this expression ;— SECONDLY, the
husband has it at his option either to continue
the marriage with his wife or to put her
away and hence it follows %that he may con-
stitute her his substitute with respect to that
•Arab Majlis— This term is treated of
* g
Arabic, signifying that she chooses her
liberty from the matrimonial tie.
88
DIVORCE.
[VOL. I.
"rule: and where the woman is thus left it
her option, and says "I choose mayself, a
divorce irreversible takes place, because the
woman's choosing of herself cannot be estab-
lished but by her becoming sole and inde-
pendent, which can only be the case in
irreversible divorce, as, where it is reversible,
the husband is at liberty to take her back
without her consent at any time during the
continuance of her Edit, and thus she would
not become sole and independent on the
instant, which the nature of the case requires.
Under this form a single divorce only tt>kts
placet whatever may be the intention — IT is
to be observed that, in the case at present
under consideration, one divorce only can
take place, and not three although the
husband should actually have intended the
latter option not being of different descrip-
tions : — contrary to complete separation, for
if the husband wer to say, "you are com-
pletely separated/' intending three divorces,
the three take place accordingly, where such
is his intention, because this complete sepa-
ration is of two descriptions, the mild and
the rigorous, and it follows that intention
with respect to and of these holds good.
And, to effect divorce, it is requisite that
the personal pronoun be mentioned by one or
other of the parties.— IT is also to be observed
that, where the husband uses the expression
"choose 1" it is requisite that the personal
pronoun self be mentioned either bv the
husband or the wife, insomuch that if the
husband were to say, "choose I" and the
wife answer, "I have chosen," divorce does
not take place, because the effect of divorce
is established by all the doctors upon the
condition of the mention oF the personal
pronoun by one of the parties ; and also,
because the pronoun cannot be understood
under any circumstances of ambiguity, and
these words of the woman bear two con-
structions ; one, that she chooses her husband
(which would not occasion divorce) ; and
another, that she chooses her self (which
would occasion irreversible divorce) ; divorce
therefore, does not take place in defect of the
pronoun, on account of its ambiguity.
That is, either by the husband, in his
declaration.— IF a man say to wife, "choose
yourself," and she answer, "I have chosen,"
a divorce irreversible takes place, because
the word self here occurs in the words of the
husband, and the words of the woman are
in reply to him ; and hence her words vir-
tually comprehend herself. And, in the
same manner, if the husband were to say,
"choose an option," and she reply, "I have
chosen," a divorce irreversible takes place:
the proofs here are drawn fronl the Arabic.
Or by the wife in her yepiy.—lF a man
say to his wife: "choose I" and she reply, "I
have chosen myself," divorce ^ takes place,
where such was the husband's intention
because the word «e(f here occurs, in the
Veply given by the woman, and the expres-
sion of the husband bears the construction
of that which he intended.
And divorce takn place, although her
option of it be expressed in the Mozaree or
common tense. — IF a husband say to his
wife, "choose !" and she reply to him in
the Mozaree tense [which* in the Arabic,
is common to the present and future], saying
"I do (or will) choose myself," divorce takes
place, on a favourable construction. — Ana-
logy would suggest in this case that no di-
vorce takes place, because, if the woman's
reply be taken only in the future, it stands as
a promise, and bears that construction also, if
taken in the present ; and hence divorce
does not take place, from her answer
amounting only to a promise in the former
sense, and from its ambiguity in| the latter ;
as if a man were to say to his wife, "divorce
yourself," and she were to reply, Atliko
Nafsee ["I do (or will) divorce myself"],
in which case divorce does not take place,
and so in this case likewise : but the reasons
for the more favourable construction are
twofold ; — FIRST, it is recorded that, upon
the descent of the passage of the Koran
relating to option, viz. O MY SON 1 SAY
TO YOUR WIVES, If you desire the life of this
world" (to the end),— the Prophet said to
Aysha, "I have something to mention to
you, but do not reply to it until such time as
you consult your parents," after which he
read to her the above passage, and then gave
her an option : and Aysha said, "in such a
matter as this I shall not consult my father
or mother, but will (or do) choose GOD and
his Prophet," which words the Prophet con-
sidered as a reply, importing, "I do choose ;"
•—SECONDLY, the word Akhtarto ["I do (or
will) choose myself"], express the present
literally, and the future figuratively, the
same as the word Ashado [I do (or will)
testify], in giving evidence before a magis-
trate ; contrarty to where a woman answers
Atliko Nafsee [I do (or will) divorce myself],
for here it is impossible to receive her words
in a present sense, as they do not relate to a
thing now existing ; whereas the expression
Akhturto [I do (or will) choose myself] , on
the contrary, relates to a thing now present,
to wit, the woman choosing herself.
Where the husband gives a power of op-
tion thrice repeated, and the wife make only
a single reply, yet three divorces take place
from it, independent of the husband's in-
tention.— IF a man say to his wife, "choose !"
— choose I — choose 1" and she reply, "I have
chosen the first," or "the second" or "the
third," three divorces take place, according
to the doctrine of Haneefa, and the in*
tention of the husband is not requisite
although the word here used be an implied
expression, because his repetition of the
word "choose 1" proves his intention to be
divorce, as the option given to the woman
is repeated only with that view.* — The two
disciples say that only one divorce takes
•Some grammatical reasoning, incapable
of translation, is omitted in this part.
BOOK IV -CHAP. III.]
DIVORCE.
89
place in cithtr case ; but they agree with
Haneefa, that the intention is not essential,
for the reasons above assigned. — And, in the
same manner, if the woman were only to
reply, "I have chosen," it is effective of
three divorces. And so also, if she were to
reply, "I have chosen a choice." — This is
admitted by all the doctors ; because, where
she only says, "I have chosen," it is pro-
ductive of three divorces : and, consequently,
when she speaks in a way to give this ad-
ditional force it produces the same a fortiori.
— And if she were to reply, "I have divorced
myself," or "I have chosen myself with
respect to one divorce," one divorce rever-
sible takes place.
Where the word divorce is mentioned by
the husband, the divorce which follows is
reversible. — IF a man say to his wife, "one
divorce is at your option," or "choose with
respect to a single divorce." and she reply,
"I have chosen myself," one divorce re-
versible takes place, because the man has
given the woman an option so far as one
divorce, and expressing it in direct terms
(as above)* the divorce proceeding from it is
reversible.
Section //.
Of Amir-ba-Yedt or Liberty.^
In a delegation of libertyt divorce takes
place according to the number mentioned by
the wife : independent of the husband's in-
tention : and the divorce which follows is
irreversible — IF a man say to his wife,
"your business is in your own hands,"
intending three divorces, and the woman
answer, "I have chosen myself with one
choice," three divorces take place. The
proof of this is drawn from the nature of
these expressions in their original idiom.
BUT if the woman were to reply, "I have
divorced myself with one divorce," or "I
have chosen myself by one divorce," one
divorce only takes place ; and thia divorce is
irreversible, although the reply be delivtred
in express and not in ambiguous terms,
because it bears relation to the words of
the husband, which being an implication,
amount to a delegation of irreversible di-
vorce, and not of reversible. — The reason
why an intention of three divorces is ad-
mitted in the present instance, is that the
words, "your business is in your own hands,*
are capable of both a restrictive and an ex-
tensive construction, and hence may imply
three divorces, as well as one ; an intention
to that effect therefore holds good, since that
is one of the senses in which the words may
be taken : contrary to the expression con-
sidered in the preceding section, to wit,
"choose !" that being incapable of bear-
*Because an express divorce is uniformly
reversible unless otherwise Specified.
tThis is a contraction of Amir-ke-ba-
Yed-ke, literally, 'tyour business is in your
own hands, i.e., "you are at liberty to do as
you please."—The word liberty is adopted
•mgly, for the sake of brevity.
ing an extensive construction, as was there
demonstrated.
Delegation of liberty may be restricted to
a particular time, or to several different
specified periods of time.—;Iv a man say to
his wife, "your business is in your own
hands this day, and after to-morrow," the
night is not included : — and if the woman
reject the liberty thus given to her for this
day, it is, with respect to this day, annulled ;
but it still remains to her for the day after
the morrow, because the husband has ex-
pressly specified two particular periods, with
the intervention of a similar periods to
which the liberty does not extend (to wit : to-
morrow) ; and hence it appears that those
are two distinct liberties, and the rejection
of one does not amount to a rejection of the
other. Ziffer says that both amount only to
a single liberty, this being analigous to a
case where a man says to his wife, "you are
divorced this clay and the day after to-mor-
row," which implies one divorce only, and
not two (on the idea of one taking place
this day, and the other the day after the
morrow) ; and hence, in like manner, one
liberty only is implied.— -But to this it may
be replied, that divorce is not of a nature
to admit restriction to any particular time,
whereas liberty is capable of such restriction ;
and hence that which regards the first period
mentioned is restricted to that period, and
that which regards the second period com-
mences de novo.
IF a man say to his wife, "Your business
is in your own hands to-day and to-morrow,"
the night is comprehended in it : and, if the
woman should* reject the liberty on the in-
stant, it is totally annulled, and does not
return on the morrow (according to the
Zahir Rawayet), as this amounts only to one
liberty, because that between the two periods
specific 4 ro similar period intervenes to
which the liberty does not extend.
OBJECTION. — Although a period similar
to the two specified does not intevene, yet
night intervenes, from which it would follow
that the liberty given for to-day and to-
morrow is not a single liberty.
REPLY.— Two distinct liberties are not
occasioned by this circumstance, because the
intervention of night, althoughit may inter-
rupt or suspend a matter, does not divide
or terminate it, as in a public court, for
instance, which may, on account of the night
coming on, be adjourned, without any actual
breach in the series of its proceedings ; thus
it is the same as if the man were to say,
"your business is in your own hands for two
days," in which* case a single liberty only is
understood.
And it is not annulled by the wife's rejec-
tion of it until the time or times mentioned
be fully expired.— IT is recorded, from Aboo
Haneefa, that although the woman should
reject the liberty on the instant, yet it stiKi
remains with her for the following day, at
she is not empowered to reject it (that is to
s , , she cannot refuse her assent to receiving
90
DIVORCE
[VOL. I.
itfTrbecoming established in her upon the
husband saying, "your business is in your
own hands/1 independent of her consent
(as in the direct execution of divorce, for
instance, where, if the husband were to say ,
"you are divorced," divorce takes place in-
dependent of the consent of the wife) ; and
such being the case, liberty remains still
with her for the morrow, when she may
lawfully make use of it bv chpsmg divorce.
The ground upon which Zahir Rawayet
proceeds, is that as, if she were to choose
divorce as this day, no liberty remains with
her for to-morrow, 10 if she reject the liberty
this day, no right of choice remains with her
for to-morrow, because a person who has a
choice of two things is not authorized to
choose more than one of them
IT is recorded, from Aboo Yoosaf, that if a
husband say to his wife." your business is in
your own hands for this day, and the same
for to morrow," this amounts to two liberties
because here the delegation applies to two
portions of time, distinctly and separately
expressed : contrary to the preceding case,
where the times arc not thus discriminated,
but are bothmentiored, under one head
The time of it mnv be fix*d fnr the occur
rence of any specified event —If a man say
to his wife, "your business is tn vovir own
hands on "the day on which such an on-
arrives," and the person mentioned arrive,
but his arrival be not known to the w.fe
until night, her rieht of choice no longer
remains, because liberty is a thing of con-
tinuance, and hence the word day. with
which it is associated, is restricted to the
day time, and thnt having passed away, it
discontinues.
It is not anrnilf^ by delay (whey there is
no specification of time), nor until the t..i£
rises T/rom her seat. #C.-!F a man sav to hi*
wife "your business is in vour own hands.
or "chooser* and she delay answering the
whole day, and do not rise from her seat, h<»r
right of option remains to her so Ions as she
does not employ herself in any other m»t»rr.
because a delegation of divorce by the forms
of liberty or option is a transfer of power to
execute divorce (that is, the husband by
that delegation empowers his wife to Rive
divorce, as persons are termed empowered
who act for themselves, and the act of the
woman here 's pronouncing divorce upon
herself, wherefore this property is simposed
to reside in her),— and in transfer oi power
a privilege of reply continue* to the end of
the situation of declaration, as has been de-
monstrated in the beginning of this chanter .r
And if the woman hear the declaration,
respect is had to the situation in which
she hears it ; but if she should not hear it,
respect is. in that case, had to the situation
in which she is informed of it, because,
calthongh Amir-ba-Yed, or liberty, be a
transfev of power to execute divorce, yet the
property of suspension is also allowed to
exist in it* as it is a suspension of the event
of divorce upon the act of the wife in pro-
nouncing it, and hence it comprehends two
things, a transfer of power, and a suspen-
sion ; — in the sense of a suspension, it con-
tinues in force beyond the Majlis, or continu-
ance of the situation of declaration, to the
Majlis or situation in which the woman
understands or is informed of it, where she
is absent, or in the >ense of a transfer of
power, it is annulled, on her rising from her
seat, where she is present ; but the situation
of the husband is not regarded, because the
suspension, is absolute with respect to him ;
contrary to a case of sale, as in that the de-
claration of sale does not remain in force
bevond the Majlis of declaration, since in a
sale the Majlis or situation of the seller is
regarded as well as that of the purchase :
and the retraction of the seller, at any time
previoui to th=; consent of the purchaser is
admitted, as sale, is merely of a transfer of
prooerty, in which suspension is not of all
understood ; now since it appears that the
situation of the wife alone is regarded, and
not that of her husband, we must recollect
that her situation may be altered in various
ways sometimes by removal from one place,
to another, and sometimes by her employing
herself in any other matter, as was previously
stated.
But tt is annulled on the instant of her
rising from her seat. — THE option of a
woman who is left at liberty to choose is
annulled on the instant of her rising from
her seat, as this act proves rejection, be-
cause by getting no the attention is deranged
and withdrawn from the present subject :
contrary to a case where she delays answer-
incr for a whole day, for instance, and does
not nse from her scat, nor employ herself
in anything else : far here her option re-
mains to her, as a Majlis or situation is some-
times of a short and sometimes of a long
duration, wherefore her right of option con-
tinues untitauch time as something appears
sufficient to terminate the Majlis, or to prove
rejection, And here it is to be observed,
that by employing herself in anything else
is to be understood such a thing as is, in its
naturp, terminative of her situation, and not
any general thing.
Jt is not annulled bv a change of posture
from a mere active to a mere quiescent post-
t1*nn.— IF the woman be standing, at the
period of receiving the liberty of option
from her husband, and afterwards sit down,
her ontion remains, and is not annulled, as
her sitting does not imply rejection, but
rather the contrarv. since her attention is
thereby more collected.— And the rule is
the same where the woman, being seated,
leans unon a pillow, or having leaned upon
her pillow fat the time the husband speaks),
sits up without a pillow, because these are
no more than changes from one mode of
sitting to another, and df not import rejec-
tion any more than where a person sitting
upon one part changes and sits upon another.
—Our author remarks that this is the doc-
trine of the Jama Sagheer, and is most ap-
BOOK IV.— CHAP. Ill,]
DIVORCE.
91
proved. — It is elsewhere said, that where the
woman is sitting up without a pillow, and
then leans upon a pillow, option no longer
remains, as this shovs an indifference re-
specting it ana >un ing to a rejection.
A wife miy signify her wish to con^ult
her friends, without prejudice to her right of
option — IF the woman, on receiving a liberty
of opinion, say that she wishes to see her
father in order to consult him, or to get
witnesses, in order to have their evidence,
her option remains, because counsel is ex-
pedient in every business, and witnesses are
requisite to controvert the husbmd's denial
of the fact ; and hence neither of these
wishes expressed on her part is a proof of
rejection.
IF the woman be riding upon a quadruped
or in a camel-litter, and stop the animal on
her husband's offer of liberty, still the right
of option is not annulled ; but if she pro-
ceed upon her journey, it is annulled be-
cause the going on or stopping of the animal
is the same with those acts in the woman,
since its motions depend upon the rider.
A BOAT or ship is the same as a house, as
by the going on of the vessel the woman's
option is not annulled ; because its motion
does not always depend upon the person
whom it carries.
Section HI.
Of Masheeator Will
Where a man empowers his wift to divoce
herself in express terms t the divorce which
follows is reversible. — IF a man say to his
wife, "divorce yourself/' not having any
particular intention, or intending one divorce,
and the woman reply, "I have divorced my-
self/' a single divorce reversible takes place ;
and if she were to say, "I have given three
divorces," three accordingly take place ;
where such is the intention of the Jausband :
the reason of this is that divorce, being a
general expression, takes place in the lowest
species ; but as, like other generic nouns, it
also applies to the whole, an intention of
three divorces is admitted : and, where there
is no particular intention, a single divorce
reversible takes place, because the powey of
divorce is delegated to the wife in express
terms, and express divorce occasions a divorce
reversible. — If the husband should in this
case intend two divorces it is not admitted,
because a generic noun does not bear that
construction, where the woman is free ; but,
if she be a slave, an intention of two divorces
is admitted, that being considered as the
whole, with respect to her.
Although her reply be expressed in the form
of an irreversible divorce.— Ir a man say to his
wife, "divorce yourself/' — and she reply, "I
have separated myself/' a divorce reversible
takes place, because separation is of the same
nature with divortje, since, if a husband
were to say to his wife, "I have irreversibly
separated you [from me], intending divorce,
a divorce irreversible takes place ;— and, in
the same manner, if the woman were (as
here) to say, "I have separated myself/' and
her husband reply. "I have consented
thereto," she becomss irreversibly divorced ;
and hence the expression of the woman, "I
have irrevers.bly separated myielf," stands
the same as the husband's delegation, which
is of simple divorce ; but here the description
of irreversibility which the woman has added
to the simple divorce is held to be nugatory :
and the simple divorce only takes place ; no
if she had replied, "1 have repudiated my-
self by one irreversible divorce," in which
case a divorce reversible only would take
place ; contrary to a reply of option, for if
she were to answer, "I have chosen myself,"
no divorce whatever would take place, as
these words are not of the same nature with
divorce, for which reason it is that if a man
were to say to his wife, "I have chosen you,"
or "choise I" intending divorce, no divorce
whatever takes place ; and in like manner,
if the woman were to speak first, saying,
"I have chosen myself," and her husband
reply, "I have consented," no divorce what"
ever takes place ; yet it is an universally
received doctrine, that if the woman say, "I
have chosen myself," in reply to a delegation
of option, divorce takes place ; but the words
of the husband in the present case, namely,
"divorce yourself/' is not a delegation of
option, and hence the reply of the woman,
as above stated/ '1 have chosen myself/' is
nugatory.
IT is recorded, as an opinion of Haneefa,
that in the present case divorce does not take
place from the reply of the wife, "I have
separated myself," because the woman acts
contrary to the power vested in her, by
taking upon her to pronounce a thing diffe-
rent from that delegated to her by her hus-
band, as the expression "separated" is
different from divorce, the one being implica-
tive and the other express ; and the husband
delegated express divorce only.
The power, when thus granted, cannot be
retracted — IF a husband say to his wife,
"divorce yourself," he is not at liberty to
retract, as his expression involves a vow,*
because he has, in this instance, suspended
divorce upon the execution of it by his wife,
and a vow is an obligatory act, for which
reason a man is not allowed to recede from
it. If, however, the woman rise from her
seat, or remove from the place, the words of
the husband, as above, transferring the power
of divorce to her, are annulled, their force
being confined to the situation where the
offer is made : — contrary to where he says to
her, "divorce your Zirra [fellow- wife], as
•Literally, "his words express (or amount
to(aYameen," that is to say, suspend the
matter spoken of upon the occurrence of some
condition on the event of which that matter
takes place, independent of any further
volition on the part of the ipeaker ; and it is
therefore, with respect to him, absolute and
unretractabie. Yameen is here translated
vow, as the above is one definition of vow. *
92
DIVORCE.
[VOL. I.
this is a commission of agency, which is not
restricted to place, and may be therefore
rc'racted to the constituent whenever he
pleases.
The power may be granted generally.— I*
a husband say to his wife, "divorce yourself
when vou please/' she is at liberty to divorce
herself either upon the spot or at any future
period, because the word when extends to
all times ; and hence it is the same as if he
were to say, '"divorce yourself at whatever
time you like."
IP a man say to another, "divorce my wife , "
the person thus addressed may d.vorce her
either upon the spot at any other time,
and the husband may also retract, because
this is a commission of agency, and therefore
is not absolute, nor restricted in point of
place ; contrary to where he says to his wife,
"divorce yourself," this being a transfer of
power, not a commission of agency,* as the
woman thus addressed acts from herself and
not from another. But if a man say to
another, ''divorce such an one my wife,"
(adding) "If you please," the man is em-
powered to divorce the wife upon the spot
only : and here the husband cannot retract.
— Ziflfer says that this and the proceeding
case are alike, the addition of "if you please"
in the one instance, or the omission of it in
the other, making no difference, because the
person so commissioned afterwards acts from
his own will, like an agent in sale, to whom
it may have been said, "sell this thing if
you please." The argument of our doctors
is that the words of the husband are a transfer
of power, as he suspends the divorce upon
the will of the person whom he addresses,
and he is the principal who acts from his
own will ; divorce, moreover, admits of sus-
pension, whereas sale does not.
A wife empowered to give herself three
divorces may give herself one divorce. — IF a
man say to his wife, "give yourself three
divorces," and she give herself one divorce
only, it takes plac« accordingly, because,
having been empowered so far as three
divorces, it necessarily follows that she is
enabled to give a single one.
But, when empowered to give herself one
divorce only, she cannot give herself three. —
IF a man say to his wife, "divorce yourself
once/' and she give herself three divorces,
nothing whatever takes place, according to
Haneefa. The two disciples say that a single
divorce takes place, because the woman has
done that to which she was empowered,
together with that to which she was not em-
powered ; and hence it is analogous to a case
in which a husband says to his wife, "I re-
pudiate you by a thousand divorces" where
*That is to say, after being thus em-
Dowered, she stands as a principal in the
execution of divorce, and not as an agent :
and a commission of agency may be annulled
at pleasure, whereas the power devolved to
another to act as a principal cannot be so.
three divorces take place, because he has
pronounced that to which he is empowered
along with that to which he is not empowered ;
consequently the former takes effect, but the
latter is nugatory ; and so likewise in the
present case — The argument of Haneefa is
that the Wife has, in this case, attempted to
do an act, the power of doing which has not
been delegated to her by her husband, and
hence she appears to divorce herself, first,
and not in reply to the desire expressed by
him, as he has empowered her so far as one
divorce only, and between three divorces and
one there is contradiction, the word three
expressing a compound number, and one a
single unit ; contrary to where a man pro-
nounces a thousand divorces upon his wife,
as here three take place, because he acts in
consequence of the desire of another ; and
contrary also to the preceding case (viz.
where the husband desires his wife to re-
pudiate herself by three divorces, and she
declares one only), for here one divorce takes
place on account of her being empowered so
far as three : whereas, in the present case,
she is not empowered so far as three, and
having acted contrary to the power vested in
her, what she does is nugatory.
Where the wife's reply disagrees with tlie
husband's declaration in respect to the nature
ofthedivorce.it takes place according to his
declaration, not according to her reply. — IF
a man desire his wife to repudiate herself by
a reversible divorce, and she divorce herself
irreversibly, or the contrary, that mode of
divorce takes place which was desired by the
husband : thus, if a man say to his ^ wife,
"give yourself one divorce reversible," and
she reply, "I have given myself a divorce irre-
versible," a divorce reversible takes place,
because the woman has declared a divorce in
express terms, but with an additional descrip-
tion, and "the latter is nugatory, as being
contrary to the desire expressed^ by the
husbcnd ; but the former (which is in its
nature reversible) takes place, as being in
conformity to the husband's desire : — and,
on the other hand, if the husband say to his
wife, "give yourself one divorce irreversible,"
and she reply. "I have given myself " a
divorce reversible," a divorce irreversible
takes place, because the description of rever-
sibility attached to the divorce by the wife is
nugatory, since the husband, having himself
affixed a description to it, does not require
more of his wife than simply divorce, without
any description ; hence it is the same as if
she had pronounced the divorce itself in a
defective way : thus the divorce takes place
under whatever description may have been
affixed to it by the husbad, whether re-
versible or irreversible.
Where the power is conditional upon the
pleasure of the wife, it if annulled by her
reply disaccording with the husband's declara-
tion.—IF a man say to his wife, divorce
yourself thrice, if you please," and she give
hergelf one divorce, no effect whatever fol-
lows, because the meaning of his words is
BOOK [I.— CHAP. III.]
DIVORCE.
"if you desire three divorces, repudiate
yourself/' and the woman giving one only,
it appears that she does not desire three, and
hence, the condition not being fulfilled, the
divorce does not take place.
IP a man say to his wife, "divorce yourself
once, if you please," and she give herself
three, no divorce whatever ensues, according
to Haneefa, because a desire of one divorce
only is essentially different from a desire of
three, this being analogous to a case of
execution as before mentioned, that is to
say, as the execution of three divorces in
that instance was demonstrated to be a sen-
sible contradiction to that of one ; so, in the
present instance, a wish for three is con-
tradictory to a wish for one ; and, from
the woman pronouncing upon herself three
divorces, it appears that she was not desirous
of one ; and hence the condition is not
fulfilled.— The two disciples say that one
divorce takes place on this occasion, because
a desire for one divorce is comprehended in
a desire for three, on the same principles as
the execution of three divorces comprehends
that of one (agreeably to their doctrine before
mentioned) ; and hence the condition is
virtually fulfilled.
And so also, by her suspending her will
up:n that of her husband. — IF a man make a
delegation of divorce to his wife, by saying
to her, "you are divorced if you be desirous
of it," and she reply, "I am desirous, if you
desire it," and he reply, in return, "I am
desirous" (intending divorce), the delega-
tion is void, because the husband has sus-
pended the divorce upon the will of the
women where that is unrestricted, that is to
say, independent of anything else ; but, from
the conversation, it appears that she sus-
pends her will upon that of her husband,
and hence the condition of divorce, namely,
the independent will of the wo&an, ist not
fulfilled ; thus she does not act from option ;
and the delegation is void of course.'— The
words of the husband, in the last reply,
namely, "I am desirous," are not effective
of divorce, although such be his intention,
because there is no mention whatever of
divorce in the words of the woman, from
which the husband's wish to that effect
might be inferred in bis answer, and the
intention alone does not suffice, as it has no
operation with respect to a thing not men-
tioned j whereas, if he were to say, "I am
desirous of your divorce," it takes place if
he so intend it, because he in this case
appears to give divorce de novo, as a desire
expressed with respect to any thing implies
the existence of that thing, and hence his
expression, "I am desirous of your divorce,"
is as if he were to say, "I cause your divorce,"
which accordingly takes place : contrary to
what would follow, if he were to say, "I
intend your divorce, ' in which case divorce
would not take place, because an intention
expressed does not imply the existence of the
thing intended. — If, moreover, in the case
now recited, the woman were to reply, "I am
desirous if my father be so," or, "ifgucf
a circumstance happen" (meaning a circum-
stance which does not yet exist), and the
father afterwards signify his desire, or the
circumstance upon which she has suspended
the divorce come to pass, yet divorce does not
take place, and the delegation is void : — but
if she in saying, "if such a thing happen, "
mean a thing which has already passed,
divorce takes place, because suspension upon
a condition ilready fulfilled amounts to im-
mediate or unsuspended divorce.
W/ien the power is expressed with an un-
restricted particle (in respect to time), it is
perpetual* extending to all times, and places.
— IF a man say to his wife, "you are divorced
when you please," or, "whenever you please,"
and she reject his offer, saying, "I am not
desirous of it" her rejection is not final, for
here the power vested in her is not confined
to the place or situation where it is delegated,
on which account she is at liberty to use it
either there or elsewhere, because the terms
when and whenever are used with reference
to all times, and extend to every time indis-
criminately, and hence the sense of the ex-
pressions, "when you please," and "when-
ever you please," is "at whatever time you
please," and they are, therefore, not confined
to place. And if the woman reject at pre-
sent, still it is not a final rejection, because
her husband has empowered her to divorce
herself at whatever time she pleases, where-
fore the power does not apply t:> the time
when she does not please. --But it is to be
observed that /.he woman is not it this case
authorized to pronounce upon herself more
than one divorce, because the words when
and whenever apply to all times, but not to
more than a single divorce ; thus she is
authorized to divorce herself at whatever
time she pleases, but not to pronounce divorce
as often as she pleases.
IF a man say to his wife, "you are divorced
as often as you please," she is at liberty to
divorce herself time after time, until three
divorces, because the expression "as often"
admits a repetition of the act :— but it is to
be observed that this suspension of divorce
upon the woman's will is restricted solely to
the marriage at present existing, and does
not exend to that which may afterwards
occur ; and hence, if the woman give herself
three divorces, and be again married to the
same man, after being rendered lawful to
him, and then pronounce divorce upon her-
self, it does not take place, because a mar-
riage has then occurred de novo ; — and it is
also to be remarked that the woman is not at
liberty to pronounce the three divorces upon
herself in one sentence, because the expres-
sion "as often as," implies unity, and does
not admit of the circumstances to which it
relates being taken collectively, and hence it
is lawful for the woman to pronounce"three
divorces upon herself at three separate times,
but not at once.
But not when it is expressed with an unre-
stricted particle in respect to place.— IF a man
DIVORCE.
[VoL. I.
say to his wife, "you arc divorced wherever
you please," yet the woman cannot divorce
herself but in that place ; and if she rise from
her place before she pronounce it, her will is
nbt regarded afterwards, because the words
wherever, or whatsoever, are adverbs of
place, and divorce has no connexion with
place ; the word wherever is therefore nuga-
tory, and the will only remains, which is
confined to the precise place, contrary to the
case of time (that is, where the husband says,
"when you please"), to which divorce has a
relation, as it may take place at one time and
not at another, and hence the mention of
time in divorce is regarded, whether it be
particular, as "you are divorced to-morrow;"
or general, as "you are divorced when you
please."
IF a man say to his wife, "you are divorced
how you please." and she remain silent, a
divorce reversible takes place, whether she
be desirous or not : or, if she break silence,
and say, "I am desirous of one divorce re-
versible," and the husband reply, "such also
is my desire," divorce takes place accord-
ingly, because a conformity is established
between the will of the wife and the inten-
tion of the husband ; but where the wife
desires three divorces, and the husband only
one divorce irreversible, or the contrary, a
divorce reversible takes place, because her
act is rendered nugatory by the non- con-
formity of her will with that of her husband,
and his words (viz. "you are divorced"), re-
main, which are effective of a divorce rever-
sible : but if the husband have no particular
intention, the will of the wife* alone is re-
garded, insomuch that, whether she desire three
divorces, or only one irreversible divorce, it
takes place accordingly, in the opinion of our
modern doctors, as this is what a right of
op-ion requires, — The compiler of the Hedaya
ooserves that Mohammed, in the Mabsopt,
says that the taking place of one divorce in-
dependent of the will of the wife, as above, is
the doctrine of Haneefa ; but that, with the
two disciples, divorce does not take place so
long as the woman does not divorce herself ;
thus she has her option of either one divorce
reversible or irreversible, or of three divorces :
and the tame difference of opinion subsists
with respect to manumission ; that is to say,
if a master say to his slave, "you are emanci-
pated how you please," the slave is free upon
the instant, according to Haneefa ; whereas,
according to the two disciples, he is not free,
so long as he is not desirous of being so. — The
argument of the latter is that the husband
has delegated to his wife a* power to effect
divorce upon herself under whatever descrip-
tion she pleases, whether a single divorce re-
versible or irreversible, or three divorces ;
and hence it is indispensibly requisite that
the divorce itself be also suspended upon her
will, sp that a will shall be confimed to her
in all circumstances that is, both before
carnal connexion and after it ; for, if the
dm>rce itself were not suspended upon the
will of the wife, it would follow that the wife
could have no will with respect to the
description of the divorce before carnal con-
nexion, as before consummation she cannot
give herself three divorces, since in such case
the wife becomes irreversibly repudiated by
a single divorce before the passing of her
Edit, and no longer remains a subject of
divorce. — The argument of Haneefa is that
the word "how" implies a requisition of
description ; now delegation of the descrip-
tion of a thing requires the existence of the
subject of it, and divorce cannot have
existence but by taking place.
IF a man say to his wife, "you are divorced
by as many as you please," or 'by what you
please," she is empowered to divorce herself
by whatever number she pleases, as the ex-
pression as many as and what are used with
relation to number ; and hence the husband
appears to have delegated a power to the
woman with respect to whatever number she
may approve. If, however, she rise from her
place before pronouncing any divorce the
delegation is void ; or, if she reject, her rejec-
tion is final, because this sort of singular
delegation does not argue or admit a repeti-
tion of the act ; and the address implying a
thing required to be immediately determined
upon, consequently demands an immediate
answer.
IF a man say to his wife, "divorce yourself
what you please, out of three," she is em-
powered to give herself one or two divorces,
but not three, according to Haneefa. — The
two disciples, on the contrary, maintain that
she may give herself three divorces, if so in-
clined.— The arguments on both sides arc
drawn from the Arabic.
CHAPTER IV.
OF .DIVORCE BY YAMEEN OR CONDITIONAL
r VOW.
Definition of the term Yameen with respect
to divorce-— BY Yameen is here understood
the suspension of divorce upon a circumstance
which bears the property of a condition, and
this suspension is termed Yameen, because
Yameen, in its primitive sense, signifies
strength or power ; and the suspension is a
motive to the suspender to be strong in the
avoidance of the condition in such a manner
that he may not be subjected to the conse-
quence or penalty, which is divorce or manu-
mission.
Divorce pronounced with a reference to a
future marriage, takes place upon the occur-
ence of such marriage. — WHERE a man re-
fers of annexes divorce to marriage (that is,
suspends it upon marriage), by saying to any
strange woman, **if I marry you, you are
divorced," or by deciding "any woman
whom I may marry is divorced," in this case
divorce takes place on the event of such mar-
riage — Shafei maintains that divorce does
not take place, the Prophet having said that
BOOK IV.— CHAP. IV.]
DIVORCE
95
there is no divorce antecedent to marriage. —
The argument of our doctors is that the
annexing of divorce to marriage is a Yameen,
or suspension, as appears from its containing
a condition and a consequence, and present
authority is not requisite to its propriety,
because the divorce does not take place until
the occurrence of the condition, at vxhich
time the authority necessarily takes place ;
and the end which it answers, before the
occurrence of the condition, is, that it re-
strains the yower from marrying that woman,
as his meaning in the expression is, "I will
not marry you, or, if I do, you are divorced."
With respect to the saying of the Prophet
cited by Shafei, it goes to the prohibition of
immediate divorce only, and not of that
which is suspended upon the occurrence of a
future oossibl*' event.
Or upon the occurrence of any other cir-
cumstance on whxh it may be conditionally
suspended. — IF a man annex divorce to a
condition specified, by saying to his wife, "if
you enter this house you are under divorce,"
the divoce takes place upon the occurrence
of the condition. This is universally ad-
mitted by the learned, because of the exis-
tc-ce cf the matrimoniil authority, at the
time of the husband's declaration ; and it is
evident that this declaration remains in force
until the condition be accomplished.
Provided it be pronounced during an actual ,
or with reference to an event ual, possession
of authority — BUT the annexing of divorce
to marriage is not lawful, unless the vower
be either authorized at the time, or annex
divorce to a future possession of authority ;
as it is indispensably requisite that the
penalty be a thing of probable occurrence,
in order that the apprehension of it may
operate upon the fears of the vower, and that
thus the property of Yameen (viz. restraint
from the apprehension of penalty), do really
exist at the time of declaring the condition,
in virtue either of present authority, or of a
reference to a future authority, •
OBJECTION — What is now said appears to
contradict the doctrine advanced in the pre-
ceding case, of a man annexing divorce to
marriage, by saying to a strange woman, "if
I marry you, you are divorced," for in that
case he is neither in present authority, nor
does he annex divorce to the future posses-
sion of it.
REPLY. — Although he does not annex the
divorce to an existing right, yet he annexes
it to the cause of a right which may exist,
(namely, marriage41), and annexation to the
cause is the same as to the right itself, be-
cause in the former the latter is involved. —
But if a man say to a strange woman, "if
you enter such an house you are divorced,"
and he afterwards marry her, and she then
enter the said house, divorce does not take
place, because in this case, he is neither in-
vested with any present right, nor does he
•Marriage being the cause of the right to
divorce.
annex the divorce either or a future right or
to the cause thereof.
Five conditional pat tides of various effect.
— THE coditional particles are as follows,
viz .: "if," "when," "whenever," "when-
soever," and "as often as,"— Of these the
parti *li "if" is solely conditional ; in the
use of the others condition is implied. — And
under the four first of these expressions,
upon the condition being fulfilled, the Ya-
meen, or vow, is completed, and no longer
exists ; that is to say, if the condition should
again occur, the penalty is not incurred a
second time, because the words above men-
tioned do not involve all future acts of the
kind expressed in the condition, nor do they
demand a repetition of the penalty ; and
hence, whvre the act . hich constitutes the
condit ion is once found to occur, the condition
is fulfilled, and no longer remains ; and the
vow docs not continue in force without the
condition; but from this rule must be ex-
ccpted the expression "as often as," which
applies universally, and such being the case,
it is requisite that the penalty be repeatedly
incurred : — in every case, therefore, where
divorce is the penalty derived from the use
of "as often as," it ref eatedly takes place
uf on the recurrence of the condition.
IF a man say to his wife, "you are divorced
as often as you enter, the house," and she
enter it three times, and then marry another
man, and afterwards again marry her first
husband, and the condition should then
occur, divorce does not take place, as no
penalty remains on account of its having
been completely incurred in the three
divorces which .followed the repetition of
this act in the first marriage ; and as the
continuance of a Yameen, or conditional
vow, depends upon the continuance of the
condition and the penalty, when these no
longer remain the vow discontinues also.
IF the words "as often as" be introduced
"in reference to marriage, by a man saying,
"as often as I marry any woman she is
divorced," divorce takes place upon every
instance of his marrying afterwards, though
he should marry the woman a second time,
after her having been in the interim married
to another, because here the penalty is re-
ferred to the power he possesses of divorce,
which is a consequence of marriage ; and as
this power is not restricted to any particular
instance, but invariably accompanies every
marriage, it follows that the penalty must
take place upon every occurrence of the con-
dition.
A conditional vow of divorce is not an-
nulled by the yttinction of property. — A
CONDITIONAL vow of divorce is not annulled
by the extinction of the right ; that is, if a
man say to his wife, "you are divorced,
when you enter this house," and the after-
wards give her one or two divorces, and her
Edit be completed, the force of the vow still
continues under the extinction of rigjit oc-
casioned by such divorce ; because the con-
dition specified, namely, her entrance into
DIVORCE.
[VOL. I.
the house, has not yet been accomplished,
and therefore still continues to exist ; and
the penalty remains, because of the continu-
ance of its subject j wherefore the vow also
continues : thus, if the condition take place
during the existence of right, the vow is ac-
complished and divorce takes place, because
of the occurrence of the condition, and be-
cause the subject is liable to the penalty ;
and if it occur under the extinction of right,
as above, the vow is done away, on account
of the condition having occurred : but no
divorce takes place, because in this case the
woman is not a subject of divorce ; for a sub-
ject of divorce is a uoman who is a property
according to the right of marriage
Case of a dispute between the patties con-
cerning the occurrence of the condition. — If
a husband and wife differ concerning the
condition, the former ascerting tr at it had no*
yet occurred, and the latter that it had, the
declaration of the husband is to be credited,
unless the woman produce proof in support
of her allegation, because the husband is as
the defendant, denying the existence of di-
vorce, and the consequent extinction of his
richt ; whereas the wife is as the plaintiff,
affirming it. This relates to a case where
the condition is of such a nature that its oc-
currence may be ascertained by other means
than by the testimony of the wife herself;
but if it be of such nature that no evidence
but her own is competent to the ascertaining
of the condition, her declaration is to be
credited in preference to that of her husband
This, however, holds with respect to herself
only, and not with respect to any other
woman; for if a man say to his wife, "upon
the coming on of your courses you are
divorced, and also such an one my other
wife," and the woman afterwards declare her
menstruation to have commenced, divorce
takes place upon her only, and not upon the
other wife. This proceeds upon a favourable
construction. Analogy would suggest that
divorce does not take place upon her either,
because she is in this case in the character
of plaintiff, affirming the occurrence of the
Condition, and the consequent divorce, and
the husband is as the defendant, denying ;
and the declaration of a plaintiff is not to be
credited but upon proof ; but the reason for
the more favourable construction of the law
in this instance is that the woman is in-
quisitor with respect to herself, as oc-
currence of her courses cannot be known but
through her ; and hence her declaration is
credited on this occasion as well as in cases
of Edit, or carnal conjunction ; that is to
say, if a woman, having been divorced, should
declare that "her Edit having passed, she
had then been married to a man, who hav-
ing duly consummated, had then divorced
her, and that her Edit from that husband
had also elapsed/' this her declaration is
credited, so as to render her lawful in mar-
riage to her first hushand ; and in the same
manner the declaration of the wife is credited
with respect to herself in the present instance ;
but it is not so with respect to the other wife*
because this one is only in the character of a
witness with resoect to the other, and the
declaration of a single witness is not to be
credited, especially where she is liable to
suspicion, which must be the case in the
present instance, on account of the enmity
subsisting between her and the other, from
the latter being her Zirra, or fellow wife ;
whence her declaration respecting such an
one is not credited.
In the same manner, if a man say to his
wife, "if you be desirous that GOD should
torment you with hell fire, you are divorced,
and this my slave to fiee," and she reply, "I
am desirous of such torment," or if he should
say, "if you love me you are under divorce,
and this my other wife along with you," and
she reply, "I love you," in both cases divorce
takes place upon the woman who is addressed
in these terms ; but the slave is not eman-
cipated in the former instance, nor is the
fellow- wife repudiated in the latter, for the
reasons mentioned in the proceeding case.
OBJECTION.— It would appear that divorce
ought not to take place in the former of these
instances, as the falsehood of the woman's
reply is evident, since no one can be supposed
desirous of hell fire.
REPLY. — The falsehood is not certain, as
it is possible that her hatred of her husband
may be sufficiently violent to induce her to
wish for a release from him at the expense
even of infernat torments. But notwith-
standing that the penalty (to wit, divorce)
be annexed to her reply, with respect to this
woman, although she speak falsely, yet
with respect to the other person who is
named, divorce or manumission are not so
annexed, and consequently that person is
unaffected by it.
Rule in case of divorce suspended upon the
courses —If a husband suspend divorce upon
the coming of his wife's courses, saying,
"upon th«£ coming of your courses you are
divorced," and she afterwards perceive the
sign* of the menstrual discharge, the divorce
does not take place until the discharge shall
have continued for three days, as that which
terminate within a less time is not a regular
discharge ; but where the discharge has con-
tinued for three days, divorce is decreed
from the period of its commencement.
BUT if a man say to his wife, "you are
divorced upon one term of your courses,"
she is not repudiated until she become clean
from her next succeeding courses, and her
Tohr, or term of purity, arrive ; because
by one term of the courses is to be under*
stood a complete menstruation, and men-
struation is not complete until and return
of the term of purity.
AND if he say to her, "you are divorced
when you fast a day," she becomes divorced
on the sunset of the first day on which are
fasts : but if he only say,r "you are divorced
when you fast," her divorce takes place from
the first time that she begins a fast . The
proofs are drawn on this occasion from the
BOOK IV.— CHAP. IV ]
DIVORCE
97
term of those expressions in the original
idiom.
IF a man say to his pregnant wife, "if you
bring forth a male child you are divorced
once, and if a female, twice," and she should
happen to produce twins, a son and a daughter,
and it be unknown which of them was first
born, the Kazee is here to decree a single
divorce ; but caution dictates that it be
regarded as two divorces — In this case the
woman's Edit, or term of probation, is
accomplished by her delivery ; for if she
brought forth the son first, a single divorce
would I take place, and her Edit would be ac-
complished by the birth of the daughter,
after which no other divorce could take place
on account of the birth of the latter, as the
accomplishment of the mother's Edit includes
a complete dissolution of her marriage, under
which divorce cannot take place ; and, on
the other hand, if she brought forth the
daughter first, two divorces take place, and
her Edit is accomplished by the birth of the
son, after which no other divorce could take
place, for the same reason ; hence, in the
first instance, one divorce only would take
place, and in the second two divorces ; but
in the present case the second divorce is
not decreed, on account of tlu> doubt 'in
which the matter is involved ; yet (us was
already observed) caution dictates that
this he considered as amounting to two
divorces.
Cas€i of divcrce suspended upon acts
which admit of frequent repetition. — * IF
a man say to his wife, "if you converse with
Zeyd and Amroo, you are under three di-
vorces," and he afterwards give her a single
divorce, and she become separated by the
accomplishment of her Edit, and she then
converse with Zeyd, and afterwards again
marry her former husband, and then converse
again with Amroo, she falls under two di-
vorces together with the first— In* all three
divorces, Ziffer maintains that on this "oc-
casion no divorce whatever takes pla*ce. —
This case may be considered in four different
views : — FIRST, where both the conditions
appear, to wit, converse with both Zeyd and
Amroo within marriage, in which case di-
vorce would follow evidently ;— SECONDLY,
where both conditions appear without mar-
riage, in which case divorce does not take
place, the reason of which is also evident ; —
THIRDLY, where the first condition exists
•In this and the succeeding passages a mat-
ter must be adverted to which it is necessary
to understand, in order that their sense may
be fully comprehended. When a - man pro-
nounces two or three conditional divorces,
these remain so far in force that they recur
upon the recurrence of the condition, even
after an intervening marriage ; but any di-
vorce by which tha* marriage may have been
dissolved is then counted in with that which
thus recurs upon the recurrence of the con-
dition
wilhin marriage and the second without,*
in which case likewise divorce does i.ot take
place, as that penalty cannot follow without the
existence of the n arriage ; — and, FOURTHLY,
where the first condition exists without the
marrnge. and the second within itf ;— and
this is the case concerning which Ziffer differs
from our doctors. — The argument of Ziffer is,
that as the existence of marriage is condi-
tional to the divorce taking place at the time
of the occurrence of the last condition, so it
is in the same manner conditional at the time
of the occurrence of the first condition, be-
cause they arc both (with respect to the rule
of divorce) as one thing, since that divorce
cannot possibly take place without the con-
currence of both of them. To this our doctors
reply that the case now under consideration
is a vow, which, being an act affecting the
maker of it, rests upon his competency ; now
the existence of marriage, at the period of
suspension (that it, of making the vow), is
maJe conditional, in order that the penalty
may to a certainty ensue at the period of the
conditions specified taking place : and, in the
present case, marriage actually existing at
the period of suspension, the vow holds good :
and the existence of marriage is also rendered
conditional at the time of the condition being
completely fulfilled, in order that the penalty
may take place within marriage ; because
this penalty is divorce, which cannot take
place but within marriage ; but, in the pre-
sent case, the time of the occurrence of the
first condition is neither a period within
which the vow has any force, nor in which
the penalty can take place ; wherefore that
interval is considered merely as the time
of the continuance of the vow, to which
the existence of marriage is not abso-
lutely necessary, as it depends upon the
vower, a vow being an act peculiarly
affecting the maker of it, as was already
remtrked.
Case of a man first procuring a conditional
divorces, and then repudiating his wife by two
express divorces. — J If a man say to his wife,
"if you enter this house you are under three
divorces," and he afterwards repudiate her
by two express divorces ; and her Edit be
fulfilled, and she be afterwards married to
another man, and he have carnal connexion
with her, and divorce her, and she be then
•That is to say, where the first occurs
within the first marriage and the second in-
termediately between the dissolution of that
and the commencement of the second mar-
riage.
fThat is to say, where the first occurs
intermediately between the dissolution of the
first marriage, and the commencement of the
second, and the second within the second
marriage.
I This and the following are termed cases
of obliteration. They are jmore fully treated
of under the article Aila.
98
DIVORCE
[VOL.1.
married to her first husband, and after
that enter the said house, three divorces
take place upon her, according to the two
Elders.*— Mohammed says that no more can
take effect upon her than the one divorce
remaining after the two which she had
already received, as above ; and such also
is the opinion of Ziffer. The foundation of
this difference, in point of doctrine, is that the
two divorces are held, by the Elders, to have
been entirely annihilated by the circum-
' stances of the intervening marriage, and
hence the first husband still continues em-
powered with respect to the three divorces
[conditionally declared as above] upon the
woman returning to him ; contrary to Mo-
hammed and Ziffer, who hold that they are
not annihilated, and therefore that in such
event he continues empowered only with
respect to the remainder of the three (as
shall be hereafter explained). The effect of
this difference of opinion appears in a case
where a husband, having suspended one
divorce upon the circumstance of hii wife's
entering a certain house, after wads repu-
diates her by two divorces, and the woman,
after having married another man, returns
to her first husband, and then enters the
house, in which case she falls under the rigor-
ous prohibition, according to Mohammed, the
two former divorces not having been annihi-
lated by the intermediate marriage ; but, in
the opinion of the two Elders, she does not
fall under the rigorous prohibition, as they
conceive the two former divorces to have
been annihilated.
Or by three express divorces. — IF a man
say to his wife, "you are under three divorces
if you enter this house," and he afterwards
repudiate her by three express divorces and
she marry another man upon the expiration
of her Edit, and after being divorced by him,
be again married to her former husband,
and then enter the said house, no effect what-
ever ensue* — Ziffer says that three divorces
take place, -because three divorces are sus-
pended generally upon the condition, whether
in virtue of the right from the present exist-
ing marriage, or of that which recurs after
the intervening marriage with another ; and
the expression is general, and not restrictive ;
hence, therefore, the occurrence of the three
suspended divorces may stili be conceived
possible after the three divorces before given ;
for which reason the vow also continues in
force, as the permanence of that is implied
in the possiblity of such occurrence. The
argument of our doctors is that the penalty
does not consist of three divorces generally,
but of the three suspended divorces, with
respect to which the husband is authorized,
in virtue of the present existence of marriage,
because he has imposed the vo w upon him-
self for the purpose of determent, and it is
only the three divorces therein mentioned
which ,can operate in that way, not those
•Haneefa and Aboo Yoosaf,
with respect to which he may be authorized
by a subsequent marriage, an event the oc-
currence of which is not probable, the chances
being so much against it ,* and the penalty
consisting of those three particular divorces
being done away by the three divorces (in
consequence of which the subject of divorce
no longer remains), the vow is also done
away : but it would be otherwise if, after a
vow expressed as above, the husband were
to repudiate his wife by a single irreversible
divorce, for there the vow remains in force,
because of the permanence of its subject.*
Case of divorce suspended upon carnal
connexion with the wife — IF a man say to
his wife, "when I have carnal connexion,
with you, you are under three divorces," and
he afterwards have carnal kowledge of
her, divorce takes place upon the instant of
such carnal connexion taking place ; and
here, although he should not immediately
cease such connexion, yet he does not be-
come liable for either a finef or a proper
dower ; but the fine or dower becomes obliga-
tory upon him if, after the shortest cessation,
he should again have carnal connexion with
her. This is analogous to a vow made with
respect to a female slave ; for if a master say
to his female slave, "when I have carnal
connexion with you, you are free," and he
afterwards have carnal knowledge of her,
she is emancipated on the instant of such
connexion ; yet she has no claim to a fine,
although he should not immediately cease ;
but if, after a cessation, he again renew the
connexion, she has then a claim to a fine.
This is the doctrine of the Zahir Rawayet —
It is recorded from Aboo Yoosaf that a fine
is due where he delays, although he should
not entirely retreat and again renew the
connexion, because this amounts to carnal
conjunction after divorce or emancipation, on
account of his continuing the act ; but
punishment is not due, .since the whole is
only one act, in which, Irs 'the commencement
affords no cause for punishment, so neither
is punishment incurred by the accomplish-
ment of it ; but yet the fine is incumbent,
as the commission of the carnal act upon a
prohibited subject cannot be free from both
punishment and fine. The grounds on which
the Zahir Rawayet determines in this case,
is that by Jama [the carnal act] is under-
stood the commencement of the act : and
continuation is not commencement ; where-
fore carnal connexion de novo is not im-
plied ; contrary to a case of cessation and
renewal, because in that case the connexion
takes place after divorce ; but yet, even in
this instance, punishment is not incurred;
on account of the doubt occasioned by the
unity of place and of passion j but such
•The subject still remains, because, after
a single divorce, a wife* continues a legal
subject of two other divorces, until the ex-
piration of her Edit.
t Mean ing the Akir, or fine of trespass.
BO.IK IV.— CHVP V]
DIVORCE.
99
being the case, the fine is incumbent, as the
commission of the carnal act upon a pro-
hibited subject cannot be free both from
punishment aad fine.
IF moreover, in the case now recited, the
husband had suspended a reversible decree
upon his com mission of the carnal act, the
divorce is virtually reversed by his d lay,
agreeably to A boo Yoosaf ; but if he cease
and again renew, it is then reversed, accord-
ing to all the doctors.
Section
Of Istisna : that is, Reservation or Exception
Divorce, with a reservation of the will of
God d»es not take place. — IF a man say to
his wife, you are divorced (adding) if it
please God" without any stop between, di-
vorce does not take place, because the Pro-
phet has said, "where a man makes a vow
of divorce or manumission, saying, IF IT
PLEASE GOD, he cannot be forsworn ;" and
also, because the husband has here intro-
duced the words "if it please GOD," in the
form of a condition, and hence the divorce is
suspended upon the will of GOD, and does not
take place until the occurrence of the condi-
tion : but the will of GOD, not being known,
nothing can be decreed which is suspended
upon it. — And here, as the suspension de-
stroys the effect of the preceding words, it is
a condition that the same follow then con-
nectedly, and without pause, as in other
similar cases : and the words "if it please
GOD," are here said to be introduced in the
form of a condition, because they are not
actually conditional, as by a condition is un-
derstood a thing not at present existing, but
the future occurrence of which is conceiv-
able ; wherefore a thing now existing cannot
be termed a condition ; nor a thing the exis-
tence of which is impossible ; and the will of
GOD is of one or other of these descriptions.
Unless it be pronounced with a paitse
between the divorce and the reservation. —
WHAT is here said proceeds upon a supposi-
tion that the words, "if it please GOD," fol-
low the preceding words immediately, and
without separation, by a pause; but if the
man should first say, "you are divorced."
and remain a moment or two silent, and then
say, "if it please GOD," the virtue of the
former words is established, beca use in that
case the additional words come in as a
retraction from the first words which is not
held legal.
IF a man say to his wife, "you are di-
vorced, if it please GOD/' and she die before
the utterance of the latter words, divorce
does not take place, because on account of
the reservation, "if it please GOD/' the
words preceding do not stand or operate as a
desire expressed.
OBJECTION.-— As death prevents divorce,
that is to say, as if is on account of death
that divorce cannot take place, it follows that
the same circumstance in the present case
precludes the words, "if it please GOD/' and
thereby prevents them from operating to
annul the first words in their effect, and thus
it would appear that on account of ihe
woman's dying as above, the divorce should
take place upon her, she not having expired
until after the words, "you are divorced,"
and before the utterance of the reservation,
"if it please GOD.
REPLY.— Death operates to the prevention
of divorce on account of its cutting off the
subject of it ; but it dees not prevent the
effect of the reservation in the present case,
as the validity of reservation depends up:>n
that of the declaration, which rests upon the
husband, who is still living : but it would be
otherwise if he should die before having
uttered the reservation, as in that case it Is
not added to the preceding words.
Divorce pronounced with an exception in
point of number takes place accordingly. —
Ir« a man say to his wife, "you are under three
divorces all but one," two divorces, take place;
and if he say, "all but two," one divorce
takes place ; for it is a rule that this figure
of speech termed Istisna, is expressive of a
remainder from the whole of a given number
from which an exception is made ; and Urn
is approved, because there is no difference
whatever between a man's saying (for ^ ex-
ample), "I owe such an one nine Dirms," or,
"I owe such an one ten Dirms all but one ;"
wherefore this mode of speaking by the ex-
ception of a part from the whole is approved,
because it amounts to a mention, simply, of
what remains after the exception is made, as
in the present instance.
BUT the exception of the whole from the
whole is disapproved, since, after exception
of the whole, nothing whatever remains the
mention of which might be established ; and
hence, if a man say to his wife," you are
under three divorces all but three, the thrci
divorces take place upon her, because the
exception of a whole from a whole is nuga-
tory, and therefore not admitted to have any
effect.
AND here, as m the preceding cases, the
exeception is of no effect, unless it be im-
mediately connected with what goes before
namely, the sentence of divorce.
CHAPTER V.
OF THE DIVORCE OF THE SICK.*
A wife divorced by a dying husband in-
herits if he die before the expiration of her
Edit.— IF a man lyjug on his death- bed, re-
«By the Mussulman law, a woman, on the
death of her husband, is entitled to an in-
heritance from his estate ; but it is possible
that the husband may sometimes be induced,
from personal dislike, or other motive, where
he finds himself dying, to repudiate his wife,
in order to exclude her from her right iff in-
heritance, in the event of his death ; an in-
justice which the rules and cautions
100
DIVOR
[VOL. I.
pud i ate his wife either by one irreversible
divorce, or by three divorces, and die before
the expiration of her Edit, she is still e.i
titled to her inheritance from his estate : but
if he should not die until after the accom-
plishment of her Edit, she has no claim.
Shafei maintains that she is not an inheri-
tress in either case, as the matrimonial con-
nexion, which was the cause of her inheri-
tance, is dissolved by the divorce ; whence it
is that if this man were to repudiate his wife
by an irreversible divorce, and she were to die
within her Edit, before the decease of her
husband, the husband does not inherit of her,
the matrimonial connexion which was the
cause of that relationship which entitled to
inheritance no longer remaining. To this
our doctors reply that the matrimonial con-
nexion at a time of a mortal illness is a cause
of inheritance with respect to the wife : but
where the husband is desirous of defeating
this right by giving an irreversible divorce,
his intention is resisted, by postponing the
effect of his sentence of divorce to the expi-
ration of his wife's Edit, in order to shield
her from injury ; and such procrastination .s
possible, as a marriage is accounted still to
subsist during the Edit, with respect to vari
ousofits effects, such as the obligations of
alimony, residence, and so forth : and hence
it may lawfully be accounted to continue in
force with respect to the woman's inheritance;
but, as soon as the Edit is accomplished, a
further procrastination is impossible, because
the marriage does not then continue in any
shape whatever. The case, however, is very
different where the wife happens to die be-
fore her husband (as mentioned by Shafei),
for in this instance the connubial connexion
is not a cause of inheritance in the husband
(in virtue of h's right as connected with her
property), because she was not sick but in
health at the time of his pronouncing divorce
and the connexion is dissolved with respect
to his right; especially where he himself
manifests his desire that it should be so, by
pronouncing upon her an irreversible di-
vorce ; since as the connexion would be dis-
solved though he were not desirous of the
annulment of his right, it follows that it is
so where he is desirous, a fortiori. The
mode in which the connexion may be dis-
solved without the consent of the husband is
by the wife, upon her death- bed, admitting
the son of her husband to carnal connexion
and dying within her Edit, in which case the
husband would not inherit of her. the matri-
monial connexion with respect to him becom-
ing null, notwithstanding herdoes not consent
to such annulment.
Unless she be divorced at her own request,
or by her own option, or for a comp^nsa
down in this chapter are intended to coun-
teract and guard against ; some of them are
also designed to counteract any fraudulent
collusion between the wife and her dying
dtpbanh, to the prejudice of his heirs.
tion. — IF a woman require her husband,
who is sick, to repudiate her by an irre-
versible divorce, and he accordingly pro-
nounce the same upon her, — or, if he desire
her to choose, and she choose herself,— -or, if
she procure divorce of him in the manner of
Khoola, that is, for a compensation, and he
afterwards die before the expiration of her
Edit, — she does not inherit of him, because
the only reason for postponing the effect of
the divorce is a legard for her right, to the
destruction of which she in this case con-
sents. But if she require him to repudiate
her by a reversible divorce, and he pro-
nounce three divorces upon her, she inherits,
because a reversible divorce does not dis-
solve the marriage ; and hence her requisi-
tion of such a divorce does not imply her
consent to the destruction of her right.
In case of any possible collusion between
the parties, by the husband, after a declared
divorce, acknowledging himself indebted to
her, or bequeathing her a legacy t she receives
whatever may be of least value, inheritance,
debt, or legacy — IF a man, upon his death-
bed, declare that he had repudiated his wife
by three divorces, at such a time, during
health, that her Edit had passed, and she
confirm this, and he afterwards make an ac-
knowledgment of his being indebted to her
in a certain sum, or bequeath her a legacy,
she will, in the event of his decease, be en-
titled to that sum of the three which is the
least, the legacy, the debt, or her proper in-
heritance : that is to say, if her heritance
be of smaller amount than the debt or the
legacy, it goes to her, and so of the others.
This is the doctrine of Haneefa. The two
disciples say that the acknowledgment or be-
quest are either of them legal, and therefore
that the woman is entitled either to the
whole of the acknowledged debt, or to the
entire legacy (provided that does not exceed
the third; or devisable proportion of his
pro'pertylj, as the case maybe. And if the
husband; in conformity with the requisition
of his wife, pronounce three divorces upon
her on his death-bed, and afterward acknow-
ledge himself indebted to her in a certain
sum, or bequeath her a legacy, she is in this
case entitled to whatever is of least value,
the debt, the legacy, or the inheritance, ac-
cording to all, except Ziffer, who says that
she is entitled to the whole bequest (not
exceeding the third of property), or to
the whole of the debt acknowledged, because
her right to inheritance being annulled by
her requisition of divorce, the obstruction
to the legality of the acknowledgment or
bequest (namely, the matrimonial con-
nexion), is removed. The argument of the
disciples, with respect to the former case, is
that when the husband and wife agree re-
specting his having divorced her, and her
•This, which is termed Sils Mai, is fully
explained in the Book of Wills, Vol. IV.
BOOK IV.— CHAP. V.]
DIVORCE.
101
Edit having passed, she from that period be-
comes a stranger to him, and he no longer
remains liable to suspicion (that is to say,
in the present case, suspicion of his prefer-
ring her before his other heirs and giving
her more than her right, which is inheri-
tance), whence it is that his evidence to her
advantage is credited : and it is also lawful
for him to pay her his Zakat, or to marry
her sister, or for her to marry another man :
contrary to the second case, as there the Edit
still remains unaccomplished, qnd the con-
tinuance of that affords 5"ouncN! for such
suspicion : now the subject of suspicion is a
circumstance as yet concealed and unknown,
wherefore the ground for suspicion is re-
garded, and not the actual fact suspected or
apprehended; and as the continuance of the
Edit affords ground of suspicion, the effect
of suspicion is established, namely, the in-
validity of acknowledgment, or bequest ; and
hence also is established the incredibility of
the evidence of husband or wife respecting
each other : as well as the incredibility of
evidence, in respect to relations either by
blood or by marriage ; since marriage and
affinity are grounds of suspicion. The agru-
ment of Haneefa is that suspicion exists in
either instance ; in the second, because a
woman may choose divorce, in order to open
to her the door of acknowledgment, or be-
quest, so that she may receive more than her
proper inheritance : and in the first, because
it may happen that the husband and wife
may form a collusion, and agree to hold
forth their separation and the completion of
her Edit, in order that he may be enabled
to favour her, by giving her more than her
just inheritance ; and the suspicion is con-
firmed where the subsequent acknowledg-
ment or bequest appears to be of more value
than the inheritance, on which account it is
that such excess is rejected, and the rule
dictates that she shall receive the smallest of
the three, the debt, the bequest, or the in-
heritance.— It is here to be observed that
no suspicion exists respecting the proper
amount of the woman's inheritance, that
being adjusted in proportion to the whole
property inherited, according to established
rules. — Neither* are Zakat or evidence sub-
jects of suspicion, as a husband and wife are
never known to from a collusion for the
purpose of enabling him to give her the
Zakat upon his property, to be bear evidence
in and matter affecting her.
Divorce pronounced in a situation of
danger cuts off the wife ftom her inheri-
tance, unless the danger be imminent or
certain. — IF a husband being in a besieged
town, or in an army, repudiate his wife by
three divorces, she does not inherit of him
in the event of his death, although that
should happen within her Edit .—but if a
man engaged in fig^t, or a cirminal carrying
to execution, were in such situation to pro-
nounce three divorces upon his wife, she
inherits where he dies in that way, or is
slain ; for it is a rule that the wife of a Faar
(or Evader*), inherits of him, upon a favour-
able construction of the law ; and his eva-
sion cannot be established but where her
right is inseparable connected with his pro-
perty, which is not the case, unless he be [at
the time of pronouncing divorce] sick of a
danqeorus illness (appearing from his being
confined to his bed, and other symptoms), or
in such other situation as affords room to
apprehend his death : but it is not estab-
lished where he pronounces divorce in a
situation in which his safety is more probable
than his destruction : — thus, a man who is in
a fort or town besieged, or one who resides
in an army, cannot be said to De in any immi-
nent danger, the former of these situations
being designed for security against the
enemy, and the latter to repel his attacks ;
— whereas one engaged in fight, or carrying
to execution, is in circumstances of immi-
nent danger : and consequently the evasion
is established in the latter circumstance, but
not in the former.— There are various cases
recorded corresponding with these at present
recited, and which proceed upon the same
rules.— It is to be observed however, that
what is here said, viz ; "where he dies that
way, or is slain," shows that there is no
essential difference between the two cases
where he dies in the way mentioned, or in
any other way, the same as a husband con-
fined to a sick bed, who happens to be
slain.
A conditioned divorce pronounced in sicfe-
ness, does not cut off the wife from her in-
heritance, unles* the condition be her own act.
—IF a man, being in health, say to his wife,
"when the first of such a month arrives
—(or)— "when your enter this house"— (or)—
"when such an one repeats evening prayers
—(or)— "when such an one enter this
house,"— "you are under divorce/' and the
thing mentioned take place at a time when
he is sick, she does not inherit of him :—
but if he were to make such a condition
upon his death-bed she inherits in all these
cases except one, namely, "when you enter
this house."— It is to be observed that the
suspension now treated of are of four dif-
ferent kinds :—FiRST, where divorce is sus-
pended upon the arrival of a specified time;
—SECONDLY, where it is suspended upon the
act of a stranger ;— THIRDLY, where it is
suspended upon the act of the husband him-
self;-and FOURTHLY, where it is suspended
upon the act of the woman : and each ot
these again are of two descriptions ; one,
where the suspension is declared in health,
and the condition occurs in sickness ; the
other, where both take place in sickness.
In the two first instances, namely where the
•Meaning one who endeavours unjustly to
defraud his wife of her .right, or by son*
means to deprive her of it, that is ^acconf-
modatin*the explanation to the tern L used
in the text), one who .flies from or evadw
rendering his wife her right.
102
DIVORCE.
[VOL. I.
husband suspends the divorce upon the
arrival of a specified time, by saying, "when
the first of such a month arrives you are
under divorce/' or where he suspends il
upon the act of a stranger, by saying, "when
such an one enters the house," (or)^ "when
such an one repeats evening prayers/' if the
suspension and the condition both occur in
sickness, the woman is entitled to inherit of
her husband, because his intention here ap-
pears to be evasion, from the circumstance of
his suspending divorce at a time when the
wife's right is inseparably connected with
his property ; but if the suspension take
place in health, and the condition in sickness,
the woman does not inherit of htm. — Ziffcr
says, that in this last case also she inherits
because whatever is suspended upon a con-
dition takes place on the occurrence of that
condition, and is than like the fulfilment of a
promise ; and also, because in this case di-
vorce occurs during sickness. — The argument
of our doctors is that the antecedent sus-
pension induces divorce at the time of the
occurrence of the condition consequentially,
but not designedly, and injury is not es-
tablished but from design ; the act of the
husband, therefore, is not to be set aside by
the annulment of its effect, namely, non in-
heritance.— And, in the third instance (that
is where the husband suspends the divorce
upon his own act), he is considered as an
Evader, and the woman inherits of him,
whether, the suspension take place in health,
and the condition in sickness, or both occur
in sickness ; and also, whether the act be of
ah avoidable or an unavoidable nature : the
reason of which is, that the husband on this
occasion evidently designs to defeat his
wife's right, whether by the suspension, or
by producing the condition during a mortal
illness.
OBJECTION. — It would seem that the hus-
band is not an evader where the condition is
an act of an unavoidable nature.
REPLY. — In the case now under conside-
ration, although the act of condition be un-
avoidable by him, yet it is in his power to
avoid the suspension of divorce upon that
act, and hence his act is set aside, in order
that the woman may not be injured.
Provided that act be of an avoidable nature.
—AND in the fourth instance (that is, where
the husband suspends divorce upon an act of
the wife), if the suspension and condition
both occur in sickness, and the act be of
such a nature as may be avoided by the
woman (such as speaking to Zeyd, for in-
stance), she does not inherit, ?s she in this
case consents to divorce : but if the act be
of a nature unavoidable by her (such as eat-
ing and drinking, or prayer, or conversing
with her parents), she is entitled to inherft
of her husband, as she is compelled to per-
fqrmance of such acts, since, if she were not
to per for m them there is fear of her perish-
ing either in this world or the next ; and
the consent cannot exist where she acts from
unavoidable necessity ; but if the suspension
take place in health, and the condition in
sickness, and the act be of a nature avoid*
able by the woman, she does not inherit, for
evident reasons. And where the act is of an
unavoidable nature, the rule is the same,
with Mohammed and Ziffer (that is, she does
not inherit), because, on this occasion, no
act appears on the part of the husband, after
the conexion of the wife's right with his
property.-— With the two Elders, on the con-
trary, she does inherit, because; 'the husband
in this case obliges her to the commission ' of
that act, and for that reason the act becom es
his own, she being only as his instrument ;
as in a case of compulsion, a compellee being
one who is straitened between two things; in
which predicament the wife here stands,
since, if she perform the act of condition,
she sustains the injury of divorce, and if she
refrain she is in danger of perishing either
here of hereafter.
Wher* recovery intervenes between a sick-
bed divorce and the death of the husband, the
'wife is cut off from inheritance. — IF a man
pronounce upon his wife three divorces in
sickness, and afterwards recover his health,
but happen to die before the expiration of
her Edit, she does not inherit.— Ziffer says
that she inherits, because the husband in
this case appears to have intended evasions
but to this our doctors reply that the sick-
pess in which divorce was pronounced having
been removed by the intermediate recovery
of health, the last sickness which fo'lows,
is the same as health, whence it apoears that
her right is not connected with his property-
and therefore the husband is not an evader
in divorcing her.
And so also where her apostacy intervenes.
— IF a sick person pronounce three divorces
upon his wife, and she afterwards aposta-
tize from the faith, and again return to it,
and the husband then die before the expi-
ratiorvofher Edit; she does not inherit of
him. t
But not where her incest intervenes. — IF,
however, she were not to apostatise, but
should admit the son of her husband to car-
nal connexion, she inherits, — The difference
between those two cases is, that by apostacy
her capacity of inheritance is destroyed ;
whereas, by admitting the son of her hus-
band to the commission of the carnal act it
is not so, for although this renders her pro-
bib ited to her husband, yet it does for-
bid her competency of inheritance, since pro-
hibition and inheritance may be united in
the same person (as, for instance, in a mother
or a sister), wherefore she inherits in this
case : but it would be different is she were
to admit the son of her husband to carnal
connexion during the existence of mar-
riage, because separation is the consequence,
whence it appears that she consents to the
destruction of the matrimonial connexion,
which is the occasion of her inheritance,
whereas, if she admit the son of her husband,
o carnal connexion after the latter having
pronounced three divorces upon her, pro-
£OOK IV.— CHAP. VI] DIVORCE.
hibition is not established by that act as it
had been already established by divorce.
Divorce occasioned by the the slander of a
dyin% husband does nit cut off his w fe frow
her inheritance. — IF a man, being in health,
slander his wife, that h, accuse her of
adultery, and afterwards mike asseveration
respecting the sam? on his death-bed, she
inherits of him. — Vfoharmud siys that shj
does not inherit : but if the slander be also
declared upon his death bed, sh» inherits,
according to all our doctors — The reason of
this is that the slander amounts to the sus-
pension of divorce up :>n a thing unavoidable
by the woman, as it constrains her to oppo-
sition,* that she may remove from herself
the scandal of the imputation.
And so a/so of a deathbed divorce occa-
sioned by an Aila. — IF a man make an
Aila.f or v >w of abstinence, from his wife,
during health, and she become divorced, in
consequence of it when he is upon his death-
bed, she does not inherit of him ; because
Aila is a vow of abstinence from carnal con-
nexion with her for the space of four months,
which at the end of that period occasions
divorce, a,nd hence it amounts to a suspen-
sion of divorce upon the arrival of a spec:fied
time, being the same as if he had said to her.
"uoon the lapse of four months, if I have
not carnal connexion with you within that
period, you are divorced ;" which was al-
ready explained.
Where a death-bed divorce is reversiblet the
wife inherits in every case. — IF a man upon
his death-bed repudiate his wife by a rever-
sible divorce, she inherits of him in all the
cases here recited, because the marriage is
not finally dissolved, since it continues law-
ful for him to have carnal connexion with
her ; and such being the case, the principle
upon which she inherits stands still unim-
peached.
103
NOTE — In all these cases where it is «aid
that the wife inherits, it means, "in case of
the decease of the husband, before the ex-
piration of her Edit/' — the reason of which
has been already mentioned.
CHAPTER VI.
OF RIJAAT, OR RETURNING TO A DIVORCED
WIFE.
Definition of Rijaat.— RIJAAT in its primi
tiyc sense means restitution ; in la* it sig
nifies a husband returning to, or receiving
*That is to say, forces her to require her
husband to verify his accusation by a Laan,
or solemn asseveration, before the magis-
tarte, which, if he deles so, occasions divorce,
—For a full explanation of this, see Chap. X.
treating of Laan.
fSee Chap. VII.
tnclc, his wife aftir diy>rce. and restoring
tier to h;r fjr.nsr situation, in which she was
n >t lia:> i 1 1 se:ur.unri fron the passing of
r uojfSis, or ot" chi spa^e of time cor-
responding with their periods, and which
she recovers by RijaU ; this is the defini-
tion of it in the Ja-na R*m>:>z ; from what
occurs respecting is in the present work, it
appears simply tomian the continuance of
marriage.
A man may return to a wife repudiated by
one or two reversible a* yore is — IF a man give
his wifj o ic or two divorces reversible, he
miy take her bic; any tim; before the ex-
piration of her Edit, whether sh~ be desirous
or not, GoJ having said in the Koran, "YE
MAY RS FAINT THEM WITH HUMANITY," Where
n:> distinction is madi with respect to tlu
wife's pleasure, or otherwise ; and by the
word retain is heri unJer-itooi Rtja.it, or
r turning: to, according to all the commen-
tators.
Provided he <i) s\) before the expiration of
her Edit. — THE existence o° the Edit is a con-
dition of Rijiat, b3caus2 by Rijaat is under-
stood a con'inuanc? of the mirriage (whence
the term retain is applied to it), and
this cannot be established but during the
Edit since after that is past the marriage no
longer remains.
Rijaat is of two kinds, express and implied.
— RIJAT is of two species : the FIRST is
termed express, where the husband says, for
example, "I have returned to (or taken
back) my wife, or addresses the same to her
personally : and the SECOND implied, where
h* has carnal connexion, or takes conjugal
liberties with her, such as viewing those parts
of her which are usually concealed, and so
forth. This second description of Rijaat is
according to our doctors. Shafei says that
the Rijaat is not approved, or regular, but
where it is expressly pronounced by the hus-
band (provided he be able to speak), because
Rijaat stands as a marriage de novo, and
(according to him) carnal connexion with the
wife is in this case prohibited, on account of
its legality having been annulled by the
divorce, which is a dissolver of marriage, for
it would appear that the marriage is itself
dissolved by a divorce, although it be of the
reversible kind, were it not that the law there
leaves to the husband an option of Rijaat,
which is the sole reason why he confines its
effect to the prohibition of carnal connexion,
and does not extend it to a dissolution of
the marriage itself. The argument of our
doctors is that that by Rijaat is understood a
continuance of the marriage, as was before
explained ; and mis may be shown by an act,
as well as by words, for acts sometimes
evince continuance, as in the case of abolish-
ing the option of a seller ; that is to say, in the
same manner as the abolition of the option of
a seller (which is the continuance of property)
is proved by an act, so also in the present
case ; now acts peculiar to marriage are signs
of the continuance of it; and the carnal
connexion, or other acts, as before stated, afre
104
DIVORCE.
[VOL. I.
peculiar to marriage, especially in the cas
of free women, since, with respect to them
they cannot be lawful but through marriage
and, with respect to female slaves, they ar<
sometimes lawful by right of marriage, anc
sometimes by right of possession ; contrary
to touching, or looking at the pudenda of a
woman, without lust, because that is some-
times lawful without marriage, as in the case
of a physician or midwife ; and the sight of
other parts than the pudenda sometimes hap-
pens to people who reside together and ii
a wife resides with her husband during her
Edit, if such an accident were to imply
Rijaat, he might then give her another divorce
to her injury, as it would protract her Edit.
The evidence of wit ties* to Rijaat laud-
able, but not incumbent. — IT is laudable that
the husband have two witnesses to bear
evidence to his Rijaat ; yet if he have no
witnesses the Rijaat is nevertheless legal,
according to one opinion of Shaffi. — Malik
holds that it is not lawful without witnesses,
GOD having ao commanded, saying, in the
Koran, "RETAIN THEM WITH HUMANITY,
OR DISMISS THEM WITH KINDNESS, AND
TAKE THE EVIDENCE OF TWO WITNESSES OF
YOUR OWN PEOPLE, AND SUCH AS ARE OF
JUST REPUTE ;" where, the imperative being
of injunctive import: the taking of evidence
appears to be incumbent. To this our doc-
tors reply, that in all the texts which occur
concerning Rijaat, it is mentioned generally,
and not under anv restriction of being wit-
nessed; moreover, by Rijaat is to be under-
stood (as was before stated) the continuance
of marriage, to which evidence is not a
necessary condition ; as in a case of Aila, for
instance, where it (the Aila or vow of absti-
nence) is done away by the carnal act, to
which there ire no witnesses : but yet the
taking evidence to Rijaat is laudable, for the
greater caution, so as to put it out of the
power of any person to contradict it. With
respect to the sacred text quoted by Malik,
the imperative is to be taken not in an in-
junctive, but in a recommendatory sense ;
for in this instance retaining them, and
separating from them, are connected by the
intermediate particle ''OR," the text saying
"RETAIN THEM, or DISMISS THEM, AND
TAKE TWO WITNESSES," &c., from which it
appears that the calling witnesses is laudable
only, and not injunctive, in the present case,
because, in separation, it is held to be laud-
able only by all the doctors.
The wifet should have due notice of it. — IT
is also laudable that the husband give his
wife previous information of his intention of
Rijaat, lest she fall into sin ;i for, if she be
not aware of his intention, it is possible that
she may marry another husband after the
accomplishment of her Edit, and that he
may have carnal connexion with her by an
invalid marriage, which is prohibited.
A declaration of previous Rijaat, made
after the^expiration of the Edit, is to be cre-
dited where both parties agree in it* — IF, after
the* accomplishment of the woman's Edit, her i
husband were to declare that he had taken
her back before the expiration of it, and she
confirm this, Rijaat is established ; but if she
deny the fact, her declaration is credited,
because the husband in this case pretends to
have performed an act which is not at pre-
sent in his power, and his declaration is
therefore liable to suspicion, and is not to be
credited unless that be removed by the
woman's confirmation. It is to be observed
that the oath of the woman (according to
Haneefa) is not necessary. This is one of
the six cases of Isthillaf,* which are dis-
cussed at large in the Book of Marriage.
But not when they disagree. — JF a man,
having repudiated his wife by a reversible
divorce, afterwards say to her "I take you
back," and she reply, "my Edit, is past,"
the Rijaat is not valid, according to Haneefa.
The two disciples say that it is valid, be-
cause it occurs within the Edit, that being
accounted to continue until the woman givts
notice of its completion; and in this case
the Rijjat takes place before such notice ;
hence also it is that if the husband say to
her, "I have divorced you," and she reply,
'my Edit is passed," still divorce takes
place. The argument of Haneefa is that
that the Rijjat appears to occur after the
completion of the Edit bacause the \yife is
trustee with respect to her declaration of
her Edit being completed : and as to the case of
divorce cited by the two disciples, it is not
admitted by Haneefa, for divorce in such
a circumstance, according to his opinion,
would not take place : admitting, however,
that it did take place, it may be replied that
divorce takes place from the declaration of
the husband, after the completion of the
Edit (by his saying "that he had divorced her
during her Edit"), because this a severity f
upon himself, and may therefore be allowed
credit , contrary to returning to a wife, as
that cannot be established by a declaration
made after'the expiration of the Edit, since
sucli declaration affects another person.
The declaration of wife who is a slave
must be credited respecting the termination
of her Edit. — IF the husband of a female
slave, after her Edit is past, declare that
tie had taken her back during her Edit, and
ler owner confirm his declaration, but she
lerself deny it, she is to be credited , accord-
ing to Henetfa. The two disciples say that
the confirmation of her owner is to be cre-
dited, because her person is his property,
and hence he makes a declaration in favour
of the husband, respecting a thing which is
lis particular right ; this, therefore, is ana-
ogous to a case where a master makes a
'"Cases treating of the necessity of a wife's
confirming any question respecting her mar-
riage by oath.
t Because (if she had tibeen before under
wo sentences of divorce) this is a third sen*
nee, which repudiates her from him by the
igorous prohibition
BooKlV.--
DIVORCE.
105
declaration concerning his slave's marriage ;
that is to say, if a man assert that he had
married the female slave of such an one after
the expiration of her Edit, she denying and
her master confirming his assertion, the de-
claration of the master is to be credited in
preference to that of the slave ; and so like-
wise in the case in question. To this our
doctors reply that the efficiency of Rijaat is
founded upon the Edit, because, if that still
exist, the former is good and valid, but not
otherwise ; and as the declaration of the
female slave is to be regarded concerning her
Edit, it must in the same manner be regarded
with respect to what is founded upon it.
But if the above case be reversed, — that is,
if the slave confirm and the owner deny the
husband's assertion, — the denial of the owner
is to be credited, according to the two dis-
ciples (and also according to Haneefa, in the
Rawayet Saheeh), because her Edit no longer
remains, and the right to the Ma tat, or pre-
sent,* rests with her owner ; wherefore her
assertion is not to be credited to the preju-
dice of her master's right, as she is in this
case liable to suspicion ; contrary to the for-
mer case, in which the owner by confirming
the assertion of the husband, acknowledges
the continuance of Edit at the period of
Rijaat ; and supposing this to be the case,
his [the owner's] authority disappears ; his
right, therefore, is not injured by her denial,
and hence, that is to be credited. If, how-
ever, in this case the female slave assert that
her Edit is past, and the husband and owner
unite in saying that it is not past, her asser-
tion is to be credited, she being trustee with
respect to that she says, as having sole in-
formation upon the point in dispute.
At what time the power of Rijaat termi-
nates,— WHEN the menstrual discharge, in
the third courses after divorce, continues for
ten days, or upwards, the powej of Rijaat
terminates upon the stoppage, although % the
woman should not yet have performe^i her
customary ablutions : but if it stop within
less than ten days, the power of Rijaat does
not terminate till such time as the ablutions
are performed, or the hour «"»f prayer is past.
The reason of this is that a menstruation
is not accounted to exceed the space of ten
days, and hence the woman's purification is
understood on the instant of the stoppage, at
any time beyond that period ; and the power
of Rijaat consequently terminates; whereas,
when it stops within that period, it is pos-
sible that it may still return, and hence her
purification cannot be finally determined
until the customary ceremonies of ablution,
&c., are performed. What is now advanced
applies to the case of Mussulman women
only ; but with Kitabees the power of Rijaat
terminates on the instant of stoppage of the
menstrual discharge in the third courses
after divorce, alttough it should happen
within ten days, because with such women
/ *See Book II. Chap, III
no other sign is requisite to establish purifi-
cation than the simple cessation, as they are
not held, by our doctors, to be subject to the
injunction of the law in this particular
THE power of Rijaat terminates where the
woman performs the teyummim,* and re-
peats the usual prayers, according to Haneefa
and A boo Yoosaf. This proceeds upon a
favourable construction of the law. Moham-
med says that it terminates immediately
upon the performance of teyummim ; and
this opinion is conformable to analogy, be-
cause the teyummim, where water is not to
be had, stands as a purification, having the
same virtue with ablution, as being a sub-
stitute for it — The argument of Haneefa
and Aboo Yoosaf is that sand or dust is
rather a defiler than a purifier, as it soils the
body, and the latter even adheres to it j and
rubbing the body therewith is admitted to
be a purification from necessity only ; but
this necessity does not absolutely exist until
the proper hour of prayer arrives ; and that
which is established through necessity is
restricted in its virtue to the particular
point which occasions the necessity ; and
hence the teyummim is regarded with re-
spect to prayer only, and not with respect to
the termination of the Edit. Some doctors
have delivered it as the opinion of the two
Elders, that the power of Rijaat terminates
upon the commencement of prayer ; other
say that it does not terminate until the con-
clusion, in order that the rule respecting ths
repetition of prayer may by fulfilled.
WHERE the woman, in performing ablu-
tion, omits any part of her person, if it be a
complete limb (such as the hand or foot, for
instance), or more, the power of Rijaat does
not terminate :f but if the part omitted be
less than a limb (a finger, for instance) it
terminates The compiler of the Hedaya
observes that this rule proceeds upon a
favourable construction of the law; for ana-
logy would dictate, in this case, that if a
* According to the Mussulman law, no
religious act can be performed without a pre-
vious purification, by ablution, where water
is to be had, or, in defect of water, by teyum-
mim, that is, rubbing the hands, face, and
other parts of the body, with sand or dust.
A woman; while in a state of impurity, is
incapable of any religious act; and hence
this formal purification is requisite upon the
stoppage of the menstrual discharge. The
po;ntupon which the case here considered
turns is whether, as the teyummim is only a
substitute for ablution, the power of Rijaat
continues until her repetition of prayer, or
whether it terminates immediately upon the
performance of that act. m
fThat is, as the ablution is in this case
incomplete, the power of Rijaat does not
terminate until prayer ; but when that w
repeated, it terminates of course,— the
woman's purification being then fully ascer-
tained.
106
DIVORCE.
[VoL. I.
complete limb be through forgetfulness
omitted, the power of Rijaat discontinues,
because the woman has performed the ablu-
tion upon the greatest number of her limbs,
and the rule of the whole applies to the
greatest number ; whereas, on the other
hand, in the omission of any part short of a
complete limb, it would suggest that the
power of Rijaat still remains, because the
laws respecting Janayat and the courses do
not admit of division, and hence, where the
power of Rijaat remains with respect to a
part, it continues with respect to the whole,
as in the liberty of prayer, for instance ; in
short, analogy requires that the rule be the
same in both cases ; but the reason for a
more favourable construction is that there is
an essential difference in the two cases, be-
cause any part short of a complete limb soon
decomes dry, especially in hot weather; and
hence it is not certain but that part may
have undergone ablution together with the
rest, for which reason it is here said that the
Rijaat terminates : whereas a complete limb
does not quickly become dry ; neither can
the omission of so large a portion of the per-
son, in ablution, be ascribed to forgetfulness.
It is recorded from Aboo Yoosaf that the
omission of ablution with respect to the
mouth or nostrils is the same, as with
respect to a complete limb ; but it is else-
where recorded from him that these stand
the same as any part short of a complete
limb (and of this opinion is Mohammed), be-
cause there is a difference of opinion con-
cerning the divine injunction directing the
ablution of those parts.
A husband may take back an enenjoyed
divorced wife, provided she be delivered of a
child within such a time ai establishes its
parentage in him.* — IF a man divorce a wife
who is pregnant, or who has brought forth
a child, and declare that he has never had
carnal connexion with her, he is neverthe-
less at liberty to take her back, because
where the pregnancy appears within such
time as renders it possible to be derived from
him, to him it is to be ascribed ; and this cir-
cumstance proves his connexion with her,
whence a right of Rijaat is established in
him, as the divorce thus appears to be rever-
sible, and in the same manner where the
parentage of the child born of her is estab-
lished in h>m, his connexion with her is also
established ; and it thus appearing that she
*To understand the scope of this case, it
is requisite to advert to one of the funda-
mental laws of divorce,— that a divorce pro-
nounced upon a woman with whom the
husband has not had carnal connexion is, in
all cases, irreversible. The case here con-
sidered supposes the husband to have repu-
diated his wife by a sentence of divorce
undefined, that is, without specifying
whether it is reversible or irreversible : for if
he were to declare it under the latter de-
scription, it holds so at all events.
has been enjoyed by him, the divorce is con-
sequently reversible ; and his declaration is
in either case null, as the law denies it, be-
cause, by ascribing the woman's pregnancy,
or the birth of the child, to the carnal met of
the husband, it establishes her marriage, and
consequently his right of Rijaat, a fortiori;
It is to be observed that by the husband di-
vorcing a wife who has brought forth a child
is here meant divorce after delivery ; for if
the child were born after the divorce, the
Edit would be thereby accomplished and the
power of Rijaat would terminate of course.
A man acknowleding that he had never
consummated with his divorced wife has no
power of Rijaat, although he have been in
retirement with her. — IF a man retire with
his wife in such a way as amounts to a Khal-
wat Saheeh, and afterwards divorce her, de-
claring that he has not had carnal connexion,
he has no power of Rijaat, because that would
have been confirmed to him by his commis-
sion of the carnal act ; but he acknowledges
that this has not taken place, and hence his
declaration is credited, as it operates to the
prejudice of his right ; and the law does not
on this occasion deny his declaration, because
a woman's right to her stipulated dower is
founded upon her making delivery of her
person, and not upon her husband's seisin of
it : contrary to the former case, as there the
law is repugnant to the husband's declaration.
IF a man divorce his wife after a retire-
ment, and again take her back, and after-
wards assert that he has not had carnal con-
nexion with her, and she should be delivered
of a child within a day short of two years
after divorce, the Rijaat is valid notwith-
standing his assertion, because the parent age
of the child is established in him. as the
woman had not declared the completion to
her Edit, and a child may be supposed to
continue so long in the womb, whence the
husband i§ considered as having had carn^al
connexion with her before divorce, because
if Her pregnancy were ascribed to such con-
nexion after divorce, the marriage stands
dissolved on the instant of divorce, on ac-
count of its not having been then consum-
mated : and of course the subsequent carnal
connexion is unlawful • and Mussulmans a-e
not supposed to commit any unlawful acts.
Rijaat may be established by the birth of a
child. — IF a man suspend the divorce of his
wife upon the cirumstance of her producing
a child, and she be delivered of a child, and
again of another within not less than six
months after, although it were more than
two years, Rijaat is established,* provided the
woman have not declared the completion of
her Edit, because divorce taking place upon
the woman in consequence of her first de-
livery, Edit was incumbent upon her ; and
her second child must be supposed to pro-
That is to say, the man is considered as
having taken back his wife. (See the begin-
ning of this chapter,)
BOOK IV. —CHAP. VI.]
DIVORCE.
107
cecd from an embrace of the husband during
the Edit, which act on his part amounts
to a formal reversal of the divorce.
IF a man say to his wife, ' 'every time that
you produce a child you are under divorce.",
and she be delivered of three children at
three separate births, that is, within not less
than six months of each other, Rijaat is estab-
lished by the birth of the second child and
in the same manner by that of the third, be-
cause, upon the birth of the first, divorce
takes place, and Edit is incumbent, and upon
that of the second Rijaat is established, for
the reason before observed, that it must be
supposed to proceed from an embrace of the
husband during the Edit ; and a second di-
vorce takes place, because the husband has
suspended divorce upon child birth with the
expression, "every time that," and Edit is
incumbent in consequence of this divorce ;
and by the birth of the third, Rijaat is again
established, for the same reason as above,
and a third divorce takes place in the same
manner as the second ; and in this case the
Edit is to be counted by the courses, because
the woman is not pregnant, but subject to
courses, at the period of each divorce taking
place upon her.
A woman under reversible divorce may
adorn hers*//.— IT is allowed to a woman
under reversible divorce to adorn herself as
she is lawful to her husband on account of
their marriage still holding : and as Rijaat
is laudable, and her adorning of her person
may excite him to it, the action is therefore
permitted by the law.
A man must not approach a reversible di-
vorced wife without giving htr intimation. —
IT is not proper for a man, having a wife
under reversible divorce, to approach her
without previous intimation, or letting her
hear his footsteps: — this is where he has no
intsntion of Rijaat ; because a woman is
sometimes undressed, and it mignt happen
that if he were to come upon her unawares
he would see parts of her, the sight of which
occasions Rijaat ; and this not being his in-
tention, he would give her another divorce,
which would protract her Edit.
A divorced wife cannot be carried upon a
journey until Rijaat be established. — A MAN
cannot carry with him, upon a journey, a
wife whom he has repudiated by a reversible
divorce, until he have called witnesses to bear
evidence to his Rijaat. — Ziffer says that the
husband has such a power, because their
marriage still holds ; which is the reason
why he may lawfully have carnal connexion
with her, according to Haneefa. — The argu-
ments of our doctors are twofold — FIRST the
word of GOD, who has sai'd, "TAKE THEM
NOT FORTH FROM THEIR DWELLINGS," where
the text applies to the woman under reversible
divorce, the carrying of whom upon a journey
is the removal of £hem from their dwel-
lings, and is therefore illegal ; — SECONDLY,
the only reason why the effect of a sentence
of reversible divorce is postponed to the ac-
complishment of the Edit is, the possible in*
tendon or wish of the husband to take back
his wife ; but where he does not do so before
the Edit is accomplished, it appears that he
had no such wish or intention, in which case
it would be evident that the sentence took
effect upon the instant of his pronouncing it
and that the wife was consequently sepa-
rated from that period ; for if the effect of
the sentence were in reality restricted to the
completion of the Edit, another Edit would
then always be requisite after the first : and
hence, as it appears that the wife is, in effect
as a stranger to her husband, from the time
of the sentence of divorce, it follows that he
has no authority to carry her forth ; whence
it is here said that he cannot carry her upon
a journey until he has called witnesses to bear
evidence to his Rijaat: — in which case the Edit
is annulled, and his authority re-established.
Cohabitation is not made illegal by a re*
versible divorce. CARNAL connexion with a
wife is not rendered illegal by a reversible
divorce, according to our doctors. Shafei
maintains that it is rendered illegal thereby,
since the connubial connexion is dissolved
because of the appearance of that which ter-
minates marriage, namely, his sentence of
divorce. The argument ojf our doctors is that
the connubial tie still continues, insomuch
that the husband is at liberty to take back
his wife, even against her will, because a
right of Rajaat is reserved to him out of ten-
derness, in order that he may b6 enabled to
recover his wife when he becomes ashamed
of having divorced her : and this necessarily
implying that he is empowered to recover
her, his being so proves that Rijaat is a con-
tinuance of the marriage, and not a marriage
de novo, as a man cannot marry a woman
against her will. With respect to what
Shafei advances, that "the connubial con-
nexion is dissolved on account of the ap-
pearance of that which terminates marriage,
namely, his sentence of divorce, it may be
replied that the effect of the terminator is
postponed to the completion of the Edit, -ac-
cording to all the doctors, out of tenderness
the husband, as above.
Section.
Of Circumstances which render a divorced
Wife lawful to her Husband.
A man may marry a wife repudiated from
him by one or two irreversible divorces. — IN
a case of irreversible divorce, short of three
divorces, the husband is at liberty to marry
his wife again, either during her Edit, or
after its completion, as the legality of the
subject still continues, since the utter ex-
tinction of such legality depends upon a
third divorce ; and accordingly until a third
divorce take place, the legality of the iubject
continues.
OBJECTION.— IF the legality of the subject
continue, it follows that it is lawful for any
other person besides the husband to marry
the wife during her Edit.
REPLY. — Her marriage with any other
during her Edit is forbidden, on account of
108
DIVORQE.
its inducing a « doubtful parentage ; -but if
the husband marry her, this objection can-
not exist. • • ' ' ' • '
But if by three divorces ihe cannot marry
her until she be tpfreviously married to another
man — IF a man pronounce three divorces
upon a wife who is free, or two upon one
who is a slave, she is not lawful to him until
•he shall first have beea regularly . espoused
by another man ; who, having duly consum-
mated, afterwards divorces her or dies, and
her Edit from him be accomplished, because
GOD has said "IF HE DIVORCE HER^ SHE is
NOT, AFTER THAT, LAWFUL TO • HIM*' (-that
is after a third divorce) "UNTIL SHE MARRY
ANOTHER HUSBAND." And here 'two divorces
to a slave are the same #8 three to a free
woman, because the legality of the subject
has only half its force in a • slave, on account
of her state of bondage ; and hence it would
follow that, to such an one, a divorce and a
half stands the sarrie three" divorces to a
free woman, -but as divorce i is mcapable of
subdivision; two divorces are "allowed. As
to what is said, that the>- second husband
duly consummating is a condition, it is
founded on the text here quoted, in which
the word Nikalv [marriage] implies carnal
connexion, as it bears two meanings, by one
of which it signifies carnal conjunction, and
by the other the legal union of the1 sexes
and it is on this occasion taken in the former
sense \ but' ever admitting that <the- word
Nikah, in the text, meant simply the mar-
riage contract, yet < the condition is estab-
lished upon a weH-fcnown tradition of1 the
Prophet who being questioned concerning
person a power -'of marrying again a wife
who, after he- had repudiated her by three
divorces, had been married to another man,
and whom, after retiring with her; and lift-
ing her veil, that- man had divorced, replied
"the woman is. not lawful to her first hus-
b£nd until she has tasted the embrace 6f /the
other ;"!Du* the', condition requires only the
entrance » of : the • penis - into the vagina, and
not the emission of seed) as the1 a-bove tradi-
tion implies the entrance- 'generally.,- whence
that only is understood. ,
Nature of the consummation in tfjc second
marriage which renders a divorce^ wife again
lawful to fteV first' husband; — A YOUTH under
puberty is the same? as a • full grown man
with respect \to fegarizrng ; that is to say, if
amahfeivehis wife three 'divorce*1, and she
after1 her Edit, ' mar*y * with a; youth oinder
maturity; and he perform the carnal act with
her, she' ^heTt ! [in ' case of hisi decease or
divorce*] becomes lawful 'tocher first husband
because the condition', 'namely, entrance, in
virtue of1 & 'regular marriaige, is necessarily
supposed 46 be 'fulfilled,' Malik says that
the carnal act of a full-grown man is the
condition; because unless he be arrived at
maturity * l the' woman's testing (that is1 en-
joying pleasure from) his embrace/ which is
the condition, is not fulfilled : "bnat the cases
before recited in the < book of imarrrage- dis-
prove this distinction of Malik. { It is
observed, that it is recorded in the Jama
Sagheer, that a boy -under puberty but wh6
is such as to be -able to perform the carnal
embrace is termed a Moorahick *, and where
such an one has carnal knowledge of his Wife,
ablution' is incumbent uptoh her, and she is
thereby rendered lawful to a former husbandl
if -he- should have repudiated her' by three
divorces ; and the carnal erribrace of sucH'aii
one is implied from the circumstance of hi*
having a priapism 'and desire. It is alsd'td
be observed that ablution is made incumbent
upon the woman, in the present Case, only 6n
account of the entrance of the boy's ^enis
into her vagina exciting an emissio se'tinnii
on her part, the necessity therteof with re-
spect to her being soley in Consequence bf
her full pliberty ; but it is 'not incurhbent
upon the boy, he not being subject 'to t he
necessity of such observance ; but yet it
required of him, that he may be habituated
to a laudable custom. ' " ' ''
A FEMALE slave, whom her husband has?
repudiated by two divorce**, is not renderelc]
lawful to him 'by the carna! embrace ofhef
mas er, becafuse that which is essential to heir
legatity {namely; marriage) dods not exl's^t
here1. '
The second 'marriage ; tyheri contracted
under a legalizing condition, is disapproved
but yet the 'Woman is rendered l legal by it 'tb
her fi rs t husband. -^Ir a rriari marry a womah
whose husband had repudiated her by three
divorces, under a condition of rendering her
lawful to' her 'former husband, as {f h'e were!
to declare to her — "I nrtarr^ you under a
condition of reridcririg you1 lawfu} to your
former husband, or, as il she were to say tcf
hlm--"I marry with you under the condi-
tion of my becdming 'lawful to1 miy fdrmer
husbarid/f — this is 'ah nlbominable marriage.
because the second hiisband 13 here t'ermed
a Mohulljl, or lefgatizer, and1 th<» Prophet r/as
said, •r'le^ the curse of GOD 'fall upon the
Mbhullil an'd the Mphallal-le-hoo : * bu^
nevertheleiss, if the parties contract a mar-
riage 'under this Condition, and the man
divorce' the1 woman after carnal connexion,
she, upon the completion of her Edit, be-
comes lawful to her' former husband, as
there undoubtedly exisfs a consummation
in a regular marriage, vi^hich is the cause of
legality, and the marriage is not ' invalidated
by the Condi tioh. His recorded from Aboo
Y6osaf that such' a m'arr'Uge is nujl, as it
falls"1 under ihe description of a Nikkah
MoWokket, or' temporary marriage, because
the words of the husband, ' *T marry you
under a condition of rendering you* lawful
to Vour1 former 'husband/' imply, * ' I marry
you until the tim* of our having "carnal con-
nexion, and not for an ' indefinite time, and
is'therefbr'e'the1 samfe'as wriere a ''man says tq
a >worriah, "I marry you for a rnontK. ahcl so
fotth ; and; the rnarriafgt bein^ invalid, th^
' *The thihg I'etiderect legal. It rnearls.
this odcfassioni a'lihlrt^ rehde^cl legal btf
indirect and uriap^bved expedient.
IV.— CHAP. II. ]
DIVORCE.
woman cannot by jthat. means be rendered
lawful to, her former, hu&band.; but in reply
to this our doctors urge that the restriction
of the rnarriage to any specified tirade is not
expressly 'mentioned by the parties, nor does
the man here, marry the woman under any
other condition than that of doing by her any
marriage requires ; and hence it does not
tcome under , the .description of a tenapbrary
osoarriage. It is recorded from Mohammed
, that the marriage is legal and valid,' for the
reasons before mentioned ; but yet the woman
. is not. thereby' made lawful to her first hus-
band, because the second huaband here en-
, devours to precipitate a thing which the
,Jaw postpones (for the law postpones her
legality, to herf former husband to ' the
death of her present), and -therefore meets a
due return in the defeat of his design (to wit,
{legalizing; the woman to her former hus-
band) '} in the same manner as in the murder
of an inheritee ; that is to say, if any person
slay his inheritee, he is thereby cut off from
inheritance, as having attempted to precipi-
tate that which the . law has postponed/ and
thus m^ets his punishment in the1 defeat of
\his desfgn (to wit, Immediate inheritance) ;
.and so also in the present case.
L '.The first husband, recovering his wife by
an intetVenient marnaqe, recbvers his full
tpower of divorce over her. — IF a man 'repu-
diate his wife by one of ;by two divorces, and,
her Edit being completed, she be married 'to
another man, and afterwards return to her
former! husband, he becomes again' autho-
rized so far a« three divorces, the one or tfte
two divorces formerly pronounced ' ur>on her
by him- having 'bcfen cancelled and ' 'obliterated
by her marriage with the second husband,
in the same manner ' as three divorces would
have been;* This is the doctrine of the two
Elders, Mohammed says that marriage with
a second husband doe.s not obliterate anv
tfiing short of three divorces. The proofs
on either side are drawn from the Arabic!' '
,, The wife's declaration of her having been
legalized is, to be credited.-^lw a'fnan pro*
nourvce three divorces upon his wife, and she
afterwards, declare that "her Edit having
been. duly accomplished, >ehe has been mar-
ried to another -man, and enjoved and
divorced by him, and that her1 Edit from
him is. .elapsed,"— he* former htisband may
•That is to say, one or,' two divorces are
obliterated, the sape as three would be, Kad
that' been the nuniber formerly pronounce cl
by hirn. It is necessary to observe U?at this!
cfllse involves 'a principle in divorce which is
rtowhere expressly 'mentioned : namelv, 'that
the same woman is not a legal subject of
more than three divorces to any one , rnan,,
and consequently, that a rrian who repudi-
ates hit wife 'by two divorces (for instance),
* he marry her again, unless the! interven-
tion/of another rnwbahd obliterate these t^o,
has no power beyond one divorce' in the
escond marriage,
lawfully admit her asservation, and marry
her, provided that from the period of his
divorcing her such a space of time have
elapsed as affords a possibility of this having
been the case, and that he actually believe
her assertion tp be true : because the sub-
stance of. the woman's assertion i$ either
a matter of mere temporal concern, (as . not
comprehending), any merit or demerit before
GOD), .or it is a 'matter of religion (on ac-
count of legality being suspende/d upon it),
and the declaration of a single person, either
in matters of a temporal or spiritual nature,
is worthy of credit ; and the confirmation of
her assertion is not forbidden or reprobated,
where the space of time which has inter-
vened admits the possibility of its truth. —
The learned differ concerning the shortest
period which admits of this possibility, as
shall be fully explained in treating of Edit.
CHAPTER VII.
OF
Definition of the. term. — AILA, in its
primitive sense, signifies a vow. In lav, it
implies a husband swearing to abstain from
carnal knowledge of his wife for any time
above four months, if she be a free woman.
or two months, if she be a slave.
The mode in whitih Ail* it established.- *!F
a man swear that he will not have -carnal
connexion with his wife, — or, that he will
not have such connexion with her 'within
four months,— an Aila is established ; be-
cause GOD- has said, "WHERE A MAN MAKES
A VOW [Aila] WITH RESPECT TO HIS WIFE,
HE MUST STAY FOUR MONTHS," — to the end
of the verse.
In breach of Aila expiation is incumbent.
—!F a man, in a case of Aila, have carnal
knowledge of his wife within four months
after, he is forsworn in his vow, and expia-
tion is incumbent upon him, this being in-
curred by the breach of his vow ; and the
Aila drops, as his vow is cancelled by the
breach of it. .
But if it be observed, a divorce irreversible
ensues at its termination. — BUT if he have
not carnal knowledge of her for the space
of four months; a divorce irreversible takes
place, independent of any decree of separa-
tion from the 'magistrate,— Shafei §a;ys that
a decree of the magistrate is requisite, be*
cause the husband here withhold* her, right
(namely carnai connexion) from his, wife,
and hence the magistrate acts as his substi-
tute, in effecting t separation ; as in the case
of ennuchs and impotent perapns, in short,
according to Shatei, a right » to ,p(5rnand
separation rests with , the woman, *p the
same manner, as in the case of her , marriage
to one who U impotent or an ennuch ; ,.^d m
consequence of a depree of, the magistrate
she becomes repudiated by a divorce
110
DIVORCE.
[VoL. I.
siblc,— The arguments of our doctors are two-
fold -.—FIRST, the husband, in abstaining
from carnal connexion for the space of four
months, acts unjustly towards his wife, by
withholding from her that which is her right,
for which the law makes him a due return,
in depriving him of the benefit of marriage
upon the expiration of that term ; and this
is an opinion recorded from Othman, and
Alee, and Abdoola-Ibn-Mussaood, and Ab-
doola-tbn-Abbass, and Abdoola-lbn-Aumroo,
and Zeyd-Ibn-Sabit :— -SECONDLY, in times
of ignorance* an Aila stood as a divorce,
and the law afterwards constituted it a di-
vorce postponed to the period of four months:
— Now, if a man swear to abstain for four
months, his vow drops at the expiration of
that term ; that is, if the same man should
afterwards marry and cohabit with the same
woman he is not forsworn, because the vow
was temporary ; but if he should have sworn
to abstain for ever, his vow continues in
force, because it is general (that is to say, is
not restricted to four months), and no viola-
tion appears by which it might be cancelled
yet divorce does not take place upon it re-
peatedly, unless where marriage is repeated,
because, after separation, the withholding of
the woman's right cannot be supposed to
exist ; but if, after separation, the vower
were to marry her again, the Aila returns ;
and consequently, upon carnal cohabitation
in this marriage, he would be forsworn ; or
if he abstain, an irreversible divorce again
takes place upon her, at the expiration of four
months, as before, because the obligation of
the vow continues, on account of its being
ganeral, and in consequence of the man
marrying her again her right to carnal con-
nexion is established, and of course his in-
justice in withholding it from h«r. — And here
it is to be observed that the TC commencement
of the Aila is to be counted from the date of
the second marriage ; and if this man were
again a third time to marry her, the Aila
returns, and occasions an irreversible divorce
at the expiration of four months, in case of
the husband refraining from carnal connexion
for that term, for the reasons already stated.
— What is now advanced proceeds upon a
supposition of the vower marrying the woman
again without the intervention of her marriage
with another man ; but if, in the interim,
she had been married to another man, divorce
would not take place in consequence of the
vower abstaining from carnal connexion for
the space of four months, in the second mar-
riage, because the vow is confined in its
effect, to divorce in the first or original pro-
priety,! the Aila in the present case, being
•That is, before the establishment of the
Mussulman faith.
t When a man marries a woman, his milk
flvhich, is here and elsewhere rendered
propriety, or ri$ht ; that is, peculiarity of
possession) continues with respect to her,
notwithstanding divorce, until it be abro-
the same if the husband were to suspend
divorce upon his abstaining from carnal co-
habitation for the space of four months,
where the effect is restricted to the propriety
then existing, and so in this case likewise. —
This case is grafted on the case of oblitera-
tion, concerning which there is a difference
of opinion between Ziffer and our doctors:
and that case is where a man, having said to
his wife, "if you enter this house you are
under three divorces," afterwards repudiates
her by an express sentence of three divorces,
and she is again married to him, and then
enters the said house, from which no divorce
takes place, according to our doctors, whereas
Ziffer holds that divorce takes place : as was
recited at large in a former chapter. — But
observe that, in the case now under consider-
ation, although divorce do not take place,
yet the obligation of the vow remains, as it
was general, and continues uncancelied by
any breach of it : and hence, if the man
should ever have carnal connexion with the
wife at any subsequent period, expiation is
incumbent upon him; on account of this
breach of his vow.
A vow of abstinence for a term short of
four months does not constitute Aila. — IF a
man make a vow to abstain from carnal
knowledge of his wife for less than four
months (as if he were to restrict it to two
or to three months), it is not an Aila, because
Ibn Abbas has said that Aila is not occa-
sioned by a vow of abstinence from carnal
connexion with a wife for a period short of
four months ; and also, because a husband
who abstains from the embrace of his wife
for the space of four months or upwards ;
has no obstruction to plead, that being the
longest space during which any obstruction
is supposed to exist;* but an obstruction
gated by Her marriage with another. In
short, the propriety, or peculiar right, of
a husband is a priciple which is alive in
the actual existence of marriage, and is not
annihilated, but remains dormant, or quies-
cent, under a termination of it by divorce ;
and hence it is that, where a man marries a
woman, after having repudiated her, he is
said to attain a revival of propriety, not a
propriety de novo. Many of the most im-
portant and (apparently) unaccountable laws
of divorce are to be traced to this source. In
the present case the Aila is said to have been
restricted in its effect to the vower' s original
propriety, and consequently, in its effect,
recurs upon every revival of that propriety
by marriage ; but it being abrogated by the
woman's intervening marriage with another,
the vower' s subsequent marriage with her is
an attainment of propriety de novo, in which
the vow cannot operate.
•By the , obstruction here t mentioned is to
be understood pregnancy for the last four
months, during which it is not deemed lawful
for a husband to have carnal connexion with
his wife.
BOOK IV.-CHAP. VII,]
DIVORCE.
Ill
may continue for a time short of four months
and consequently divorce will not take place
from a vow of abstinence for that time.
IF a man make a vow, saying to his wife,
"by GOD I will not have carnal connexion
with you for two months, nor for two months
after that," Aila is established. The proofs
of this are drawn from the Arabic. But if
a man swear that "he will not have carnal
connexion with his wife for two months,"
and then remain silent for a day, and the
next day again swear that "he will not have
carnal connexion with her for two months,
after the other two," Aila is not established,
because the second vow is distinct and sepa-
rate from the former, the husband, upon his
making his first vow, being prohibited from
carnal connexion for two months, and upon
making the second, four months, except-
ing the day on which he remained silent,
whence the term of four months complete
(being the space of time requisite to consti-
tute Aila) is not included in this vow.
IF a man vow that "he will not have
carnal connexion with his wife for a year,
excepting a day," Aila is not established.
This is contrary to the opinion of ZifTer, who
places the excepted day at the end of the
year, conceiving this to be analogous to a
case or hire ; that is to sav, if a man agree
to let ct hire a house to another for a year
excepting a day, the day e- cepted is trans-
ferred to the end of the year, and so in this
case likewise ; and the exception being trans-
ferred to the end of the four months the
complete term of an Aila is involved in the
vow. The argument of our doctors is that
the term Mawalee [maker of an Aila] is
applied only to one who cannot have carnal
connexion with his wife for the soace of four
months without incurring a penaltv, such as
expiation for instance ; but in the present
case the husband may have carnal connex-
ion with his wife without incurring Any
penalty, because the day excepted is not, par-
ticularly specified, contrary to a case of hire,
where the excepted day is transferred to the
end of the year, from necessity, as the con-
tract, or engagement of hire, would without
that be void, on account of ignorance ;
whereas this is not the case in a vow. But
if, after this vow, the man were on any par-
ticular day to hava carnal connexion with
his wife, and four months or unwards of the
year still remain, Aila is established, as the
exception then drops.
IF a man, being in Basra, and his wife in
Koofa, swear that he will not go to Koofa,
Aila is not established, because he can st'll
have carnal connexion with his wife, with-
out incurring any penaltv,* bv bringing her
from Koofa to the place of his residence, and
there enjoying her.
A vow of abstinence, under a penalty an*
•That is, without subjecting himself to
any obligation of performing expiation tor
the breach of his vow.
nexed, constitutes an Aila. — IF a man make
a vow, annexing to his breach of it pilgri-
mage, fast, alms-gift, manumission, or di-
vorce, by saying to his wife, "ff I have
carnal connexion with you, I am under an
obligation to fast," — or "to give alms," — or
"to perform a pilgrimage," — or "such an
one, mv slave, is free," — or "you are di-
vorced,"— or "such and one, my wife, is di-
vorced/'— Aila is established, as in this case
an obstacle is opposed to the commission of
the carnal act from the terms of the vow,
in the mention of the condition and the
penalty, the several penalties above men-
tioned amounting to prohibition, as the in-
curring of any of them is attended with
trouble or injury. Aboo Yoosaf objects
that suspending the manumission of a slave
upon the commission of the carnal act does
not amount to an Aila, as it is possible for
the husband to evade the penalty, by first
selling the slave, in which case he might
commit the act without incurring any
penalty. To this Haneefa and Mohammed
reply that the sale of the slave is not a
matter of certainty, as a purchaser is not
always found, and hence this objection is of
no weight.
Aila holds respecting a wife under re-
versible divorce. — Iv a man make an Aila
with resoact to a wife under reversible
divorce, the Aila is established ; but if with
respect to one under irreversible divorce,
it is not established, because the connubial
union still subsists in the former case, but
not in the latter ; and in the sacred writings
she alone is declared to be a subject of a vow
of abstinence who is the wife of the vower.
But drops on the accomplishment of her
Edit. — IF a man make an Aila with respect
to a wife under reversible divorce, and her
Edit be accomplished before the expiration
of the term of Aila, the Aila then drops, as
the woman (becoming totally separated by
the completion of her Edit) no longer remains
a subject of it.
An Aila made respecting a woman before
marriage, is nugatory.— lv a man say to a
strange woman, "By GOD I will never have
carnal coxnexion with you," — or "you are
to me like the back of my mother,"* and he
afterwards marry her, neither Aila nor Zihar
are established, as these expressions are ipso
facto null, the woman, at the time of his
addressing her in these terms, not being a
subject of either one or the other, since none
are so but wives ; but yet if a man marry a
woman after having vowed in this manner,
and have carnal knowledge of her, he must
perform expiation on account of breach of his
vow, which is still binding upon him.
*A species of abuse, by which, in times of
ignorance, the wife stood virtually ^divorced.
Since the propagation of the faith, it' only
occasions the wife to be prohibited to her
husband until such time as he shall perforjn
an oyniation. See article Zihar.
DIVORCE.
[VOL. I.
THE term of Aila, with respect to slave,
is two months, this being the space of time
fix^d for her final separation ; thus the term
of Aila of a slave is half that of a free woman,
as well as her Edit.
An Aila made respecting a wife at a dis-
tance may be orally rescinded. — IF, at the
time of making an Aila vow, there should
exist any natural or accidental impediment
to generation on the part of either the man
or the woman (such as the former being sick,
or the latter being impervia coeunti, or an
infant incapable of the carnal act — or their
being at such a distance from each other as
does not admit of their meeting during its
term), it is, in this case, in the man's power
to rescind his Aila, by saying "I have re-
turned to that woman/' upon which the Aila
drops. — Shafei says that Aila, cannot be re-
scinded but by the carnal act (and such is
likewise the opinion of Tehavee), because,
if the above declaration of the husband
amounted to a rescindment, it would follow
that a breach of the vow in therein estab-
lished, and consequently that expiation is
incumbent : whereas this is not the case. —
The argument of our doctors is that, the
Mawalee, having wronged his wife by a vow
prohibiting his carnal connexion with her,
it remains with him to make her such satis-
faction as circumstances admit of, by a ver-
bal acknowledgment : and the wrong being
thereby removed, he is no longer subject to
the penalty annexed to it, namely, divorce.
— It is to be observed that if the obstruction
to generation, in the case under considera-
tion, be removed during Aila, and after the
Mawalee's oral rescindment as above such
rescindment is null, and his commission of
the carnal act is then requisite to rescind it,
as he is here enabled to employ the actual
means, whilst the end remains as yet un-
attamed.
An equivocal expression of divorce, take*
effect according to the husband's interpretation
of his intention. — IF a man say to his wife,
"y°vi are prohibited to me," let him be asked
concerning the intention of these words : and
if he say, "my design, in those words, was to
express a falsehood," his declaration is to be
credited, as his intention coincides with their
actual tenor. (Some have said that his
declaration is not to be credited before the
Kazee,* as his speech is apparently a vow,
since the rendering prohibited that which is
lawful amounts to a vow.) And if he say,
"1 intended divorce," and single divorce irre-
versible taket place, except where he designed
three divorces in which ca*e three divorces
take place, as was stated in treating of Talak
Kinayat, or divorced by implication ; and if
he say, "I intended Zihar/' Zihar is accord-
ingly established with the two Elders.
Mohammed says that this is not Zihar ;
because it is essential to Zihar that the hus-
band compare his wife to his own relation
•That is, in point of law.
within the prohibited degrees, which is not
the case in this instance. — The argument of
the two Elders is that he has dsclared prohi-
bition generally ; and Zihar also involves a
sort of prohibition (namely, the prohibition
of carnal connexion, until after expiation),
and a circumstance generally expressed is
capable of bearing a restricted construction,
— And if he say, "I intended prohibition," —
or "I had no particular intention," his speech
amounts to a vow, and consequently an Aila
is established from it, because a vow is the
original thing (with our doctors) in rendering
prohibited that which is lawful, as shall be
demonstrated in treating of vows. Some doc-
tors construe any expression of prohibition
into a divorce, where there is no particular
intention, as being agreeable to custom.
CHAPTER VIIL
OF KHOOLA.
t Definition of the term. — KHOOLA, in its
primitive sense, means to draw off or dig up.
In law it signifies an agreement entered into
for the purpose of dissolving a connubial
connexion, in lieu of a compensation paid by
the wife to her husband out of her property.
— This is the definition of it in the Jama
Ramocz.
Reasons which justify Khoolat or divorce
for a compensation. — WHENEVER enmity
takes place between husband and wife, and
they both see reason to apprehend that the
ends of marriage are not likely to be answered
by a continuance of their union, the woman
need not scruple to release herself from the
power of her husband, by offering such a
compensation as may induce him to liberate
her, because the word of Goo says "No CRIME
IS IMPUTED TO THE WIFE OR HER HUSBAND
RESPECTING THE MATTER IN J.IEU OF WHICH
SHE HATH RELEASED HERSELF;" that IS to
say, there is no crime in the husband's
accepting such compensation, nor in the
wife's giving it.
Which occasions a single irreversible
divorce. — AND where the compensation is
thus offered and accepted, a single divorce
irreversible takes place, in virtue of Khoola ;
and the woman is answerable for the amount
of it, because the Prophet has said that
Khoola effects an irreversible divorce : and
also, because the word Khoola bears the
sense of divorce, whence it is that it is
clashed with the implied expressions of it,
and from an implied divorce a divorce irre-
versible takes place ; — but intention is not
essential to Khoola, because by the mention
of a compensation, the act is made indepen-
dent of it :— and also, because it is not to be
Imagined that the womaKi would relinquish
any part of her property but with a view to
her own safety and ease, which is not to ba
obtained but by a total separation, What is
now advanced proceeds upon a supposition*
BOOK IV.-CHAP. YIIIJ
DIVORCE.
113
of the aversion being on the part of the wife,
and not on that of the husband ; but if it be
on the part of the husband, it would be
abominable in him to take any thing from
her, because the sacred text days: "IF YE BE
DESIROUS OP CHANGING (that is, repudiating
one wife and marrying another), TAKE NOT
FROM HER ANY THING:" — and also because
a man, by divorcing his wife from such a
desire of change, involves Jher in distress ;
and it behoves him not to increase that dis-
tress by taking her property. If. moreover,
the aversion be on the part of the woman, it
is abominable on the husband to take from
her more than what he had given or settled
upon her namely, her dower. (According to
the Jama Sagheer, if the husband take from
her more than the dower, it is strictly legal,
as the text of the Koran already quoted is
expressed generally , but the former opinion
is founded on a tradition of the Prophet, to
whom a woman having mentioned her hatred
of her husband, he advised her to give up
her dower, as a compensation, to induce the
husband to divorce her, to which she replied,
"I will give that and more 1" but the Prophet
answered, "not more!" — and here the aver-
sion was on the part of the woman). — But
yet if the husband should take more than the
dower, it is approved in point of law ; — and
so also, if he were to take any compensation,
where the eversion is on his part, because
the sacred text, goes to establish two points ;
one, the lawfulness of Khoola in a judicial
view ; and the other, its admissibility
between the parties and Gop Almighty ;
now from the tradition which has been
recited, appears that where the aversion is
on the part of the wife, a Khoola for more
than the dower is disapproved ; and, on the
other hand, the text before quoted shows that
if the aversion be on the part of the husband,
he should not take any thing, and conse-
quently not more than the dower .a fortiori ;
wherefore the ground of admissibility is
abandoned, on account of the contradiction
between the tradition and the text ; and
practice is established upon the other re-
maining ground, namely the lawfulness of
Khoola in a judicial view.
The wife is responsible for the compensa-
tion.— IF a husband offer to divorce 'his wife
for a compensation, and she consent, divorce
takes place, and she becomes answerable for
the compensation, ; because the husband is
empowered, of himself, to pronounce either
an immediate or a suspended divorce, and he
here suspends the divorce upon the assent of
the woman, who is at liberty to agree to the
compensation, as she has authority over her
own person, and the matrimonial authority,
like retaliation, is one of those things for
which a compensation is lawful although it
do not consist of property ; and the divorce is
irreversible for the reason already assigned,
and also because Kkoola is understood to be
an exchange of property for the person ; and
upon the husband being vasted with a right
in the property, the woman; in return, is
vested with a right in her own person, in
order that an equality may be established.
Difference between a wife requiring Khoola
in lieu of an unlawful article and requiring
divorce in \ieuof the same in express terms, —
IF the thing offered to the husband in return
for Khoola be not lawful property (as if the
woman were to desire him to grant her
Khoola in lieu of wine or a hog, and he con-
sent, saying, "I agree to a Khoola in lieu of
such wine," or so forth; a divorce irreversible
takes place, but nothing is due to the hxus-
band : but if a compensation for divorce con-
sist of a thing not lawful property (as if the
woman were to desire her husband to divorce
her for a cask of wine, and he consent, saying
"I divorce you in consideration of such
wine," and so forth), a reversible divorce
takes place. — The reason, ' or divorce taking
p'ace in both instances t that the husband
has suspende ) it upon the consent of the
woman, which is already testified ; and the
difference between the case of Khoola and
that of divorce is that, in the former, the
compensation being null, the word used by the
husband [Khoola] remains, and that, as being
a Kinayat, or implied sentence, is effective of
irreversible divorce ; whereas, in the latter
the word divorce is express, and conse-
quently occasions reversible divorce only.—
And the husband has here no claim upon his
wife, because she has not named any appre-
ciable article, which might be the means of
deceiving him ; and also, because if the thing
named be particularly specified by her, it
cannot be lawfully made incumbent upon
her in favour of her husband, on account of
his being a Mussulman ; and in the same
manner, it cannot be made incumbent if it
be not particularly specified, as in that case
she does not charge herself with it: —but it
is otherwise where she specifies a thing under
a false denomination (as if, for instance, she
were to make a proposal of Khoola to her
husband, by saying, "divorce me for this
cask of vinegar," and he agree, and the cask
afterwards appear to contain wine), for in
this case he had a claim upon her for an
equal quantity of vinegar of the medium
standard, becaus> her naming an appreciable
article has been the means of deceiving him ,
— and it is also countrary to a case in which
a master emancipates his slave, or constitutes
him a Mokatib, in return for a cask of wine,
forthm the emancipated person is responsi-
ble to his emancipator for the amount of his
, estimated value as a slave, because the
i owner's property in his slave is a thing
' which bear a certain estimable value, and
1 which he therefore cannot be supposed
willing to relinquish gratuitously ; whereas
the property in the wife's person is not to
any estimable value in the circumstance of
the dissolution of the connubial right, as the
only reason for its being so, in the attain-
ment of such rights, is its importance, and
consequent title to respect , when it, is that
the attainment of that right without a return
is not countenanced by the law ; but *^*
114
DIVORCE
[VOL, I
relinquishment of that right being in itself
a manifestation of such respect* there is then
no occasion to impose upon any one an
obligation of property for the purpose of
manifesting it.
The compensation /or Khoola may consist
of anything which is lawful in dower. —
WHATEVER is capable of being accepted as
a dower, is also capable of being accepted as
a compensation for Khoola since whatever
is capable of being a proper return for that
which is appreciable (namely), the woman's
person at the time of its coming into pro-
priety), must, in a superior degree, be capable
of being a compensation for a thing not ap-
preciable (namely, the woman's person at
the time of the destruction of propriety).
Case of Khoola required in lieu of pro-
perty unspecified. — IF a woman say to her
husband, "Grant me Khoola for what is in
my hand," and he agree, and it should after-
wards appear that she had nothing in her
hands divorce, takes place ; but nothing re-
mains incumbent upon the woman, as she
haft not deceived her husband by any specific
mention of property : but if she were to say
"grant me Khoola for the property In my
hand," and he agree accordingly, and it
should appear that she had nothing in her
hand, she must in this case return to him her
dower, because she has deceived him by a
specification of property which did not exist ;
and hence he does not appear to consent to a
relinquishment of the connubial propriety
without a return, and the woman cannot be
legally bound to give the thing specified, or
its value, as its kind or species is unknown ;
neither can she be laid under any legal
obligation to render the estimated value of
her person, that is, her proper dower, be-
cause, in the circumstance of the destruction
of the connubial propriety, that is not appre-
ciable ; it is therefore fixed that there remain
incumbent upon her whatever the husband
may have given in lieu of his attainment of
the propriety, in order that thus he may
be shielded from injury. —If, moreover, a
woman say to her husband, "grant me Khoola
for the Dirms in my hand/' and he agree
and it afterwards appear that she had nothing
in her hand, he has a claim upon her for
three Dirms. — The proofs are here taken from
the Arabic.
Case of Khoola in lieu of an absconded
slave. — IF a man enter into an agreement of
Khoola with his wife, in lieu of an absconded
slave, on the condition that, if the slave be
recovered, she shall make him over to the
husband, but if not, she shall not be answer-
able ; yet she is not released «from responsi-
bility, and it remains incumbent upon her
either to make delivery of the slave or of his
value, because an agreement of Khoola is of
a reciprocal nature (whence it is requisite
that the recompence be received on the part
of the husband) ; and the condition of release
from responsibility agreed to by the parties
is disapproved, and consequently void ; but
yet the Khoola is not so, as it is not rendered
void by involving an invalid condition.
Analogous to this is a case of marriage ; —
for if a man marry a woman, agreeing to
give, as her dower, an absconded slave on
the condition that if he be recovered he shall
be made over to her — but if not, that the
husband is not to be answerable : yet the
husband is not released from responsibility,
and it remains incumbent upon him either
to deliver to his wife the slave specified
when able so to clo, or to pay her hit price.
Cases of Khoola granted for a specified sum.
— Ira woman say to her husband, "divorce
me thrice for one thousand Dirms,1' and he
pronounce a single divorce, there remains
incumbent upon her one third of the thou-
sand Dirms, because, in requiring three
divorces for the whole sum, she has required
each divorce, separately, for the third of that
sum. — It is however to be observed that the
single divorce pronounced in thi* case is
irreversible, as being given in lieu of pro-
perty.
IF a woman say to her husband, "divorce
me thrice, upon my payim* you one thousand
Dirms," and the husband give her one di-
vorce, nothing is incumbent upon the woman,
according to Haneefa, and the husband is at
liberty to take her back. The two disciples
say that a divorce irreversible, takes place in
return for one third of the thousand Dirny*
because the expression "upon payment of"
is the same as the word, "for" in contracts
of exchange. The argument of Haneefa is
that the expression "upon pay merit" is a
condition, and the thing conditioned cannot
be divided according to the parts of the ^con-
dition itself : contrary to the word "for" as
that is used to express a return, and as the
property is not due, divorce express (and
consequently reversible) remains.
IF a man say to his wife, "divorce yourself
thrice, for (or upon payment of) one thou-
sand Dirmsf" and she pronounce upon herself
one divorce, no effect whatever takes place,
because the husband is not desirous that she
should become separated for any thing short
of the whole sum specified ; contrary to a
case where the propojal comes from the wife
(as in the preceding instance), because, as
she there appears to be desirous of procuring
separation from her husband at the whole
expense specified, it follows that she is wil-
ling to procure it, at the third of that expense
only, a fortiori.
IF a man say to his wife, "you are divorced
upon payment of one thousand Dirms/' and
she agree, divorce takes place upon her, and
the husband has a claim upon her for the
thousand Dirms, in the same manner as
where a man says, "you are divorced fora
thousand Dirms," and the wife consents, in
which case divorce takes place, and one thou-
sand Dirms are incumbent upon her :— but
it is to be observed that in both cases the
woman's assent is a condition, because the
words of the husband, "you are divorced for
one thousand Dirms," mean, "you are under
divorce in return for one thousand Dirms
BOOK IV.— CHAP. VIIL ]
DIVORCE.
115
due from you to me," — and his words, "you
are divorced upon payment of one thousand
Dirms," mean "you are under divorce on
condition that one thousand Dirms be due
from you to me/' and the return cannot
be made incumbent upon her without her
assent ; moreover, a circumstance suspended
upon a condition cannot take place until the
condition be previously fulfilled, wherefore
the effect in this case depends upon her
agreeing to what is proposed. And here the
divorce is irreversible, for the reason already
stated.
IF a man say to his wife, " you are
divorced, and there is against you a thou-
sand Dirms," and she consent, — or, if a man
say to his slave, "you are free and there is
against you a thousand Dirms," and the
slave assent, — the slave is free, and divorce
takes place upon the wife, but nothing
remains incumbent upon either, according
to Haneefa : — the rule is also the same if
they were not to assent. — The two disciples
say that the sum specified is incumbent upon
them, where they assent ; but that, if they
do not assent, neither divorce nor emanci-
pation take place ; for they argue that the
latter part of the husband's address is such
as is used in bargains of exchange ; and a
contract of Khoola, or of Kitabat, being a
contract of exchange, is therefore to be con-
sidered as such ; — as in hire, for instance,
where if a man say to another, "carry this
burthen, and there is a Dirm for you," it is
the same as if he were to say, " carry this
burthen for a Dirm." — To this Haneefa re-
•plies that the latter part of the sentence has
a separate and detached sense, and there-
fore is not be connected with the preceding
part, unless there be something to sho<v that
it is so ; — but here nothing exists to evince
such connexion , because divorce and manu-
mission are frequently produced without any
substantial return : — contrary to cases of sale,
or of hire, as neither of these are to be
conceived without a substantial compensa-
tion.
A proposal of Khoola made to the wife,
with a reserve of option to the husband, is
invalid. — IF a man say to his wife, " you are
divorced fora thousand Dirms, on a con-
dition of option to me (or, to you) for three
days,*' and she consent, the option is invalid,
where it is reserved to him, but valid where
it is reserved to her ; and if she rejects his pro-
posal within the three days, the Khoola is
null : but if she do not reject it within that
time, the divorce takes place, and the sum
specified by the husband becomes incumbent
upon her. — This is the doctrine of Haneefa.
The two disciples say that the option is null
in either case, and that divorce takes place
upon the woman, and the sum specified
becomes incumbent upon her, because option
is used for the purpose of dissolving a con-
tract, or other agreement, after it has been
concluded, and not for preventing the execu-
tion of it ; and the act of the man, or of the
woman, implying proposal on the part of
the former, and acceptance on that of the
latter, does not carry with it dissolution' on
either part ; his proposal does not, as it is a
Yameen, or suspending vow, on account of
its involving a condition and a consequence
(namely, the suspension of divorce upon the
woman's consent) ; and a vow is in itself
incapable of effecting dissolution ; nor does
her acceptance, as that is the condition of
the vow and as the vow is in itself inca-
pable of effecting dissolution, so is the con-
dition ; and such being the case, the reserve
of option on either part null. — The argu-
ment of Haneefa is that Khoola on the part
of the woman stands as a sale, since it is a
transfer of property for a return, and accord-
ingly, if it proceed first from the wife, by
her saying to her husband, "divorce me in
return for one thousand Dirms, on a con-
dition of option to me (or, to youj for three
days," and she afterwards retract before her
husband signifies his consent, her retraction
is approved, on which account it is restricted
to that Majlis, or situation, and does not
extend beyond it, — that is, if she rise from
her seat before her husband signifies his
assent, it becomes null ; the condition of
option in it therefore, when proceeding from
the wife, is approved ; but when it proceeds
from the husband, the •condition of option
is not approved, because it is then a vow,
wherefore his retraction of it is not ap-
proved, and it continues in force beyond the
Majlis ; and as it is a vow on the part of the
husband, he can have no option, since a vow
does not admit of option. Let it be also
observed that the case of a slave, with
respect to manumission, is the same as that
of a wife, with respect to divorce ; —that is
to say, manumission for a consideration is
an exchange, on the part of a slave, that
same as divorce for a return, on the part of
a wife.
The assertion of the husband respecting
Khoola is to be credited.— Iv a man say to
his wife, " I yesterday divorced you for a
thousand Dirms, but you did not consent,"
— and the woman reply that she did con-
sent, the assertion of the husband is to be
credited : but if a man say to 'another, ' I
yesterday sold you this slave for a thousand
Dirms, but you did not consent," and the
other reply that he did consent, the asser-
tion of the purchaser is to be credited. — The
reason of the difference between these two
cases is that divorce for a compensation is
a vow, when proceeding from the husband,
and his acknowledgment of his having made
the proposal doe/ not necessarily imply an
acknowledgment of the condition having
taken place, as the vow holds good indepen-
dent of that circumstance, whereas sale
cannot be effected without the consent of
the purchaser, and hence an acknowledg-
ment of sale necessarily implies an acknow-
ledgment of that circumstance without
which sale cannot exist, namely, consent,
and the seller's denial of that circumstance
is a contradiction to his previous ackno^/-
DIVORCE
[VOL. I
ledgment, and consequently not to be
credited.
A mutual discharge leaves each party with-
out any claim upon the other. — A MOBARAT,
or mutual discharge (signified by a man
gay ing to his wife, " I am discharged from
the marriage between you and me," and her
consenting to it), is the same as Khoola,—
that is to say, in consequence of the declara-
tion of both, every claim which each had
upon the other drops, so far as those claims
are connected with their marriage. This is the
doctrine of Haneefa. Mohammed says that
nothing is done away bv either except what
is particularly mentioned by both the husband
and tl>e wife. Aboo Yoosaf unites with Mo-
hammed, as to the Khoola, but with Haneefa
as to the mutual discharge. —The argument
of Mohammed is that mutual discharge and
Khoola are contracts of exchange, in which
the circumstances specifically stipulated are
also regarded, and not those which are not
stipulated. The argument of Aboo Yoosaf
is that the word Mobarat, from its gramma-
tical form bears a reciprocal sense, and
therefore requires that the discharge be
equally established on both sides ; and this
is general ; yet the discharge is in this case
restricted to those rights connected with
marriage, as the design proves it to be so ;
but Khoola only requires that the woman be
treed from the restraint of her husband ; and
as that is obtained by the dissolution of the
marriage, it does not retire that all its
effects be terminated. The argument of
Haneefa is that Khoola bears the sense of
separation, and that i. ffeneral, the same as
a mutual discharge, and consequently mar-
riage is thereby terminated, together with all
its rights and effects, the same as bv a mutual
discharge.
Khoola entered into bv a father on behalf
of his infant daughter is invalid.— IF a father
transact a Khoola with the husband of his
mtant daughter, agreeing to pay the con-
sideration out of her property, the Khoola is
u-uu with r«soect to her, because this
exhibits no regard for her interest, as hey
person is not appreciable in the dissolution
or a marriage, whereas the consideration is
so : contrary to marrige (as where a man
contracts his infant diughter to another) for
ai *.* valid, because the woman's person, on
ad tl?8 *nto a mar"aSe> i* appreciable : —
in th .Woman'8 person not beins appreciable
a w T <**8S0^ut>°n of a marriage, the Khoola of
as D S*°k °^ a mort«l illness is considered
but K^eec*m8 fr°.m tr**rc* °f her property :
ma . nS appreciable upon Intrance into a
marriage, if a man sick of a mortal illness
were to marry a woman on a proper dower, it
*f considered as coming from the whole of his
pr?Perty.~ The Khoola, therefore, being ille-
*o> the dower of the infant does not drop.
. f does the husband acquire any right to
"f r property.— There are two traditions with
jjspect to the act of the father occasioning
j vorce in this instance; according to one,
other it does not ; the former, however, it th
better opinion, because the Khoola is a sus-
pension of divorce upon the consent of the
father, which is the name as upon any othei
condition.
Unless he engage to hold himself res ponsib It
for the compensation. — IF a father transacts
Khoola on the part of his infant daughter foi
a certain sum, engaging to hold' himseli
responsible for the payment, the Khoola ii
valid, and the sum specified bacomes incum-
bent upon him, because the engagement even
of a stranger for the consideration of Khoola
is valid, and consequently that of a father in
superior degree : in this instance also the
infant's dower does not drop, as the father
has no authority with respect to the relins
quishment of it.
Or refer it to his daughter's consent. —
AND if the father were to stipulate that hii
daughter is to be responsible for the sum
specified, this will depend upon her con-
sent where she is competent (that is, capable
of comprehending the nature of her situation
and that of the present transaction, and pro-
nouncing upon them) ; and if she consent,
divorce takes place, on account of the con-
dition being fulfilled upon which it is sus-
pended : but the sum specified (or considera-
tion) is not incumbent upon her, as an infant
is incapable of undertaking the discharge of
any pecuniary obligation : and if the father
consent pn his daughter's behalf, there are
two traditions concerning it ; — according to
one, divorce does not take place until she
shall exentually express her consent ; and
according to another, divorce takes place
independent of it ; but here the compensa-
tion agreed for is not incumbent upon her at
ail events.— And in the same manner, if a
father, transacting a Khoola on the part of
his infant daughter, agree that the compen-
sation shall' consist of her dower, and he
happen not to be surety for the same,* the
validity of the Khoola depends upon the
daughter's consent, which if she declare,
divorce takes place ; but yet her dower does
not drop : and also, if the father consent
on his daughter's behalf, there are two tra-
ditions concerning it, as already stated : if
however, he be surety for the dower, amount-
ing to one thousand Dirms (for instance),
divorce takes place, because the condition
(namely consent) is existing ; and five hun-
dred Dirms only are incumbent upon him,
according to a favourable construction of the
law. Analogy would suggest that he is liable
for the whole thousand, upon this ground,
that where an adult woman transacts Khoola
on her own behalf, before consummation of
marriage, for any specified sum (say one
thousand Dirms), and her dower be also one
thousand, the whole sum is incumbent upon
her, and is discharged by five hundred drop-
ping from her dower, an8 her paying the
See Book of Marriage, Chap. HI,
BOOK IV.— CHAP. IX.]
DIVORCE,
117
other five hundred out of her own property :
— but according to the more favourable con-
struction of the law, nothing whatever is
incumbent upon her, because the intent of
the husband, in the transaction, is merely
to free himself from the obligation of her
dower ; and this end being obtained, nothing
beyond that remains incumbent upon her.
CHAPTER IX.
OF ZIHAR
Definition of the terms.— THE word Zihar
is drived from Zihr, the back.— In the lan-
guage of the law it signifies a man comparing
his wife to any of his female relation, within
such prohibited degree of kindred, whether
by blood, by fosterage, or by marriage, as
renders marriage with them invariably un-
lawful.— as if he were to say to her [by a
peculiarity in the Arabic idiom], "you are to
me like the back [Zihr] of my mother/' It
is essential to Zihar that the person compared
be the wife of the speaker, insomuch that
Zihar does not apply to a female slave ; and
competency to pronounce Zihar appertains
only to one who is a Mussulman, of sound
mind, and mature age, that pronounced by a
Zimmee or an infant being nugatory ; and its
effect is to prohibit the person who pronounces
it from carnal connexion with his wife, until
he shall have performed an expiation.
Zihar prohibit! carnal connexion until ex-
piation.—IF a man say to hit wife, ^you
are to me like the back of my mother, she
[the wife] becomes prohibited to him, and his
carnal connexion with her is unlawful, as
well as every other conjugal familiarity,
until he perform expiation for the; same as
is enjoined in the sacred writings. „
Natute and duration of Zihar. — In tirnes
of ignorance (that is, before the establish-
ment of the Mussulman faith), Zihar stood
as a divorce ; and the law afterwards pre-
served its nature (which is prohibition), but
altered its effect to a temporary prohibition,
which holds until the performance of ex pia-
tion, but without dissolving the marriage. —
The reason for this is that Zihar is an offence,
as being a declaration founded upon a false-
hood, and which amounts to a disowning or
denying of the wife ; and therefore finds its
proper punishment in her being rendered un-
lawful to him whp pronounces it, by a pro-
hibition which cannot be removed but by his
performing expiation : and as carnal con-
nexion b xcomes prohibited by Zihar, so do
all its accompanying privileges, such as
kissing, touching, and other familiarity, lest
t he husband be tenrpted toth* commission of
the carnal act ; in the same manner as is the
rule with respect to relations within the
prohibited degrees, with whom net only the
carnal act itself, but also every familiarity
which leads to the commission of it, are pro-
hibited : contrary to that respecting women
fasting, or in their courses, with whom
although the commission of the carnal act
itself be prohibited, yet other liberties are
not so, as those situations are perpetually
recurring to them and if such a rule were
to hold, it would operate as an almost con-
tinual restraint upon them ; whereas, with
respect to women under Zihar, or within the
prohibited degrees, this is not the case.
// the prohibition occasioned by Zihar be
violated, yet no additional penalty is in-
curred.— IP a man, having produced Zihar
upon his wife, have carnal connexion with
her before he make expiation, it behoves
him to respect and pray forgiveness from
GOD ; but nothing is incumbent upon him,
except the expiation on account of his Zihar,
as before, and that he refrain from any re-
petition of the carnal act with her until he
perform such expiation, because it is re-
lated of the Prophet that he thus commanded
one who had committed the carnal act with
his wife after Zihar, and before expiation
from which tradition it appears that nothing
more is incumbent (in consequence of the
commission of the carnal act before expia-
tion), for if it were so, the Prophet would
somewhere have mentioned it.
Zihar cannot occasion divorce. — LET it be
observed that from the words of the husband,
"you are to me like the back of my mother,"
nothing but Zihar is established, because
the term employed expressly signifies Zihar ;
and if he should intend divorce by it, yet
that does not«"take place, as the law of di-
vorce is broken through in this particular.*
and consequently Zihar does not admit of
divorce being intended by it.
Zihar is ei tab/ i shed by a comparison with
any part of the body which implies the whole
person. — IF a man say to his wife, "you are
to me like the belly of my mother," or "the
thigh/' or "the pudendum,"— Zihar is
thereby established, as Zihar signifies the
likening of a woman to a kinswoman within
the prohibited degrees, which interpretation
is found in the comparison being applied to
any of the parts or members improper to
be seen. — And Zihar is in the same manner
established, by the likening of the wife to
any other kinswoman within such prohibited
degree as that marriage with them is at all
times unlawful, such as sisters, and aunts,
and foster-mothers, who are invariably pro-
hibited, as well as a natural mother. And
so also it a man say to his wife, "your head
is to me like the back of my mother/' or
"your pudendurm" or "your waist/' — be-
cause by thsse the whole person is figura-
tively expressed ; and so also if he were to
say, "your half or your third," because
in this case the effect is established in a
•That is to say, Zihtr has been made, by
the law, a thing distinct and separate from
divorce, and subject to a rule peculiarly ap-
plicable to itself. *
118
DIVORCE.
diffusive portion* and consequently extends
to the whole person, because, as the diffusive
portion of any thing is a proper subject of
all other acts such as purchase, sale and
so forth, so is it of divorce; but divorce
being incapable of division, is necessarily
established in the whole person : and as
Zihar resembles divorce it therefore, like
divorce, extends to the whole also.
A general comparison takes effect accord-
ing to the husband's explanation. — WHERE a
man says to his wife, "you are to me like
my mother," it is requisite that his intension
be examined into, so as to discover the true
predicament in which the wife stands ; and
if he declare that his meaning was only to
show respect to his wife, it is to be received
according to his explanation, because in
speech respect may be expressed by a general
comparison ; or, if he declare his intention,
to have been Zihar, that is accordingly estab-
lished, for here appears a comparison with
the whole person of his mother, in which her
back is included : but as that is not expressly
mentioned, the speaker's intention is requi-
site to establish it ; and if he declare his
intention to be divorced, a divorce irreversible
takes place, as his comparing his wife with
his mother is likening her to one who is pro-
hibited to him, and is therefore the same as
if he were to say, "you are prohibited to
me," thereby intending divorce ; — but if he
declare that he had no positive intention
neither Zihar nor divorce are established
(according to Haneefa and Aboo Yoosaf),
because the address bearing the construction
of respect, must here betaken in that sense,
as being of less importance than any other.
Mohammed says that Zihar is established
independent of intention, because a com-
parison of the wife with a limb or member
of the mother occasioning Zihar, it follows
that, where it is made with the whole, Zihar,
is established a fortiori. — With Aboo Yoosaf
if the intention of the husband be merely
prohibition, an Aila only is established,
because the prohibition by Aila is less rigo-
rous than by Zihar. — With Mohammed, on
the contrary, Zihar is established : his argu-
ment is taken from the Arabic.
And the same of a comparison in point of
prohibition. — IF a man say to his wife, "you
are to me prohibited, like my mother," in-
tending either Zihar or divorce, it takes effect
according to his intention, as this address
may be taken in either sense, — in that
of Zihar, as being a comparison, — and in
that of divorce, as expressing prohibition;
strengthened by the comparison. In this
case; however, if he have no intention, accord-
ing to Aboo Yoosaf, Aila is established,-—
and, according to Mohammed, Zihar, — as in j
the preceding case —And if he say, "you
are to me prohibited like the back of my i
^ .~ . - ~-} ,^. — . - . . ^
*Joozoo Shae is here rendered a diffusive >
portion, in opposition to Joozoo Mayeen a '
particular or specified portion,
mother," and thereby intend divorce or Aila,
yet nothing but Zihar is established, accord-
ing to Haneefa. — The two disciples say that
whatever he may intend is established, as
prohibition equally implies either Aila or
divorce ; according to Mohammed, however
where divorce is the intention, no Zihar
is established ; whereas, according to Aboo
Yoosaf, divorce and Zihar are both estab-
lished together (that is, divorce is estab-
lished on account of the intention, and Zihar
on account of the term Zihr [back] being
expressly mentioned, as was stated in its
proper place) — The argument of Haneefa
is that the words above recited expressly
signify Zihar, and therefore do not b. ar any
other sense ; and the word prohibited, which
is introduced there, relates solely to the pro-
hibition by Zihar, as prohibition is of various
kinds of which that by Zihar is one, and is
on this occasion preferred, on account of the
accompanying comparison with the back of
the mother , and all other kinds of prohibi-
tion being only constructive, and that by
Zihar positive, the prohibition to which the
word "prohibited" alludes, is to be taken as
relating to the Zihar only.
Zihar. has no effect upon any but a wife, —
ZIHAR is not established with respect to any
but the wife of the speaker, insomuch that if
a man pronounce a Zihar upon his female
slave, it has no effect for various reasons. —
FIRST, GOD has said, — "MEN WHO PRO-
NOUNCE ZIHAR UPON THEIR WOMEN/'— .
where, by women is understood wives ;
secondly/ the legality of a female slave is
of a secondary or dependent nature, and
that of a wif« of a primary or original
nature, and hence those two , persons must
not be confounded ; TmRDLY, Zihar is an
imitation of divorce, and divorce does nol
take place upon a slave.
IF a m^n marry a woman without her
consent, and pronounce a Zihar upon her
before that be obtained, and she afterwards
signify her consent, the Zihar is void,
because the husband, in making the com-
parison, said no more than what was at that
time strictly true, and hence what he says
does not amount to a disowning or denying
of her.
OBJECTION.— It would here appear that
the validity of the Zihar remains suspended
upon the woman's consent to the marriage,
in the same manner as the manumission of
the purchaser of a slave from an usurper
rests upon the consent of the proprietor (that
is to say, where a person purchases a slave
of the usurper of him > and emancipates him,
the validity of his emancipation depends
upon the proprietor's assenting to the sale),
because Zihar is a right of possession by
marriage, in the same manner as manu-
mission is a right' of possession by right, of
property.
REPLY.— The validity of the Zihar is not
suspended upon her consent of. the .marriage,
because Zihar is not one of the rights of
marriage, as it has no place in the ordinances
BOOK IV.-CHAP, IX,]
DIVORCE.
of the law,* whereas matrimony has a place
in them, and that which is not of the law is
incapable of appertaining as a right to that
which is one of its ordinances ; contrary to
the case of manumission proceeding from the
purchaser of a slave out of the hands of his
usurper, as manumission is a right of pro-
perty.
Zihar collectively pronounced takes place
upon every individual to whom it is addressed.
— WHERE a man addresses all his wives col-
lectively, saying, "ye are to me as the back
of my mother," Zihar is established with
respect to every one of them, he having on
this occassion applied the Zihar to them all
indiscriminately, as in divorce, where if a
man direct a sentence of divorce to the whole
of his wives collectively, it takes place upon
the whole. And here an expiation is incum-
bent upon him, on account of each wife
respectively, because prohibition has been
established with respect to each ; and expia-
tion is ordained for the purpose of terminating
and abolishing the prohibition ; and where
that is numerous the expiation must be so
likewise, according to the number of pro-
hibition ; contrary to a case where a man,
pronounce an Aila (or vow of four months'
abstinence from carnal connexion) upon all
his wives collectively, and break his vow
by having carnal knowledge of them within
the four months, for here a single expiation
only is incumbent upon him, because in this
case expiation is incumbent upon him, out
of respect to the honour and greatness of the
name of GOD ; and his name, in a vow of
Ali, is mentioned once only, as it is pro-
nounced by the man saying to all his wives,
"by GOD I will not have carnal connexion
with you."
Section.
Of Expiation.
A Zihar may by expiated by the1 emanci-
pation of a slavet &c. — THE expiation of a
Zihar may be effected by the emancipation of
a slave ; or if, from not being possessed of
such slave, this mode be impracticable, it
may be effected by a fast of two months
successively'! or if the state of the health
do not admit of such fast, by the di«tribu-
t ion of victuals to sixty poor men: becaui"
a passage which occurs in the Koran, re-
specting expiation, demonstrates the obliga-
tion of performing it in one or other of those
ways : but the expiation is supposed to pre-
cede a man's touching his wife, after having
pronounced a Zihar upon : — in expiation by
manumission or fasting this is evident, be-
cause the text relates to that ; and so also
*That is there are no particular rules
instituted for it in the Koran, the laws re-
specting it being taken from the Sonna
t By Sawm, or fasting is here and else-
where understood an abstinence from food
and every carnal enjoyment from the rising
to the setting sun of each day, within the
prescribed term.
in expiation by the distribution of victuals
to the poor ; — because by expiation prohibi-
tion is terminated, wherefore it is necessary
that the expiation be first made in orde*
that carnal connexion may be lawful.
The emancipation of a slave of any descrip-
tion suffices.— IT suffices for an expiation that
a slave be released, whether that slave be an
infindel or a Mussulman, an infant or an adult
a male or a female, because the word Rakba,
in the Koran, applies equally to all of these,
as it signifies one who is possessed, in right
of property, by another, under any descrip-
tion whatever. — Shafei says that the eman-
cipation, of an infidel does not suffice as an
expiation, because this is a right of GOD,
which cannot lawfully be expended upon
one who, as being an infidel, is his enemy ;
like Zakat, which is a right of GOD, and the
disbursement of which upon infidels, as being
the enemies of GOD, is therefore illegal. —
To this our doctors reply, that the emancipa-
tion of a slave [Rakba] is what is mentioned
in the text, and that is fulfilled by the manu-
mission of an infidel * and as to what Shafei
advances, of expiation being a right of GOD,
and therefore not to be expended upon his
enemies, it may be replied that the intention
of the expiation is to render the slave equal
to the fulfilment of such duties as relate to
GOD, that is to say, of Zakat, pilgrimage,
bearing evidence, fighting for the faith,
magistracy, and so forth ; and if the slave
be not a Mussulman, and continue an infidel
after manumission, thereby enhancing his
crime of infidelity, and precluding himself
from receiving those advantages which he
was qualified to enjoy through his freedom,
it is to be attributed to the error of his choice,
and not to any defect in the act of the
expiator. . .
Unless such slave be defective in one of his
faculties — IT is not sufficient, as an expiation,
to emancipate a slave who is blind, or maimed
of both the fellow- members, whether hands
or feet, because here such a slave is utterly
deprived of one of his bodily endowments
either of seeing, carrying, or walking, and
th« privation of any one advantage in a slave
renders the manumission of him insufficient
as an expiation, sm-e a person in such a
state is accounted dead : but where the
privation is not entire it does not forbid the
validity of the expiation, and hence it suf-
fices for that purpose to emancipate a slave
who is blind of one eye o maimed of one hand
or foot, or of a hand andr foot, from opposite
sides as this am junto noufrto an absolute pri-
vation of one of t^e aHva ages, but only to a
defect : the case, however is otherwise where
he is maimed of a hand an foot upon the same
side for in this case his emancipation would
not suffice, as this amounts to a privation of
the advantage of walking, since, without
the assistance of the hand upon the lame
side, that is impracticable.
The emancipation of a deaf slave suffices.—
IT suffices, as an expiation, to emancipate is
deaf slave Analogy would suggest that thSs
120
DIVORCE
[VOL. I.
is not sufficient, as the slave ia here deprived
of one faculty; but it is admitted as suf-
ficient, upon a favourable construction of
the law, as the radical faculty still continues,
since one who is considered as deaf may yet
be capable of hearing what is spoken aloud :
if, however, he cannot hear at all (as where
a person is born perfectly deaf), his eman-
cipation does not suffice.
But not that of one who has lost both his
thumbs- — IT does not suffice, as an expiation,
to emancipate a slave who has lost both his
thumbs, as his power of carrying, which is
one of his bodily endowments, is in that case
destroyed.
Or who is insane — NEITHER does it suffice
to emancipate a slave who is insane, because
no use is to be derived from the members of
the body unless they be informed with reason,
and therefore a privation of reason amounts
to a privation of all the corporal endowments.
Unless it be an occasional insanity only, —
BUT if the slave be one who is insane only
at intervals, his freedom suffices for an expia-
tion, as this circumstance is not an utter
privation of the faculty, but only a defect in
it, which does not prevent the sufficiency.
Nor of a Modabbir, or Am-Walid or
Mokatib, u.ho has paid part of his ransom. —
IT does not suffice, as an expiation, to
emancipate a Moddabir, or Am-Walid, as
such are eventually entitled to their freedom,
and hence their bondage is incomplete ; — and
so also of a Mokatib who has fulfilled his
contract of Kitabat in part, because in this
case his freedom must be accounted as in
return for the part of his ransom already
received, and consequently does not suffice
for an expiation, as that is an act of piety,
in which speciality is essential — It is recorded
as an opinion of Haneefa that the release of
this Mokatib is sufficient, as bondage is found
to exist in him in every shape, and accord-
ingly the contract of Kitabat admits of being
annulled ; contrary to Am-Walids and Mo-
dabbirs, as a Tadbeer or Isteelad cannot be
cancelled.
IF a person who pronounces Zihar emanci-
pate, for expiation, a Mokatib who has not
paid any part of his ransom, it suffices. —
Shafei says that it does not suffice, because
the Mokatib is a claimant of freedom, in
virtue of the contract of Kitabat, and is
therefore the same as a Modabbir, — The
argument of our doctors is that ^bondage
exists in a Mokatib in every shape, because
the contract of Kitabat is capable of annul-
ment; and also, ^because the Prophet has
declared "a MOKATIB is a slave as long as
a single DIRM remains due*from him."
That procured for a parent or child suf-
fices.—If a man purchase his father or his son
intending expiation thereby, it suffices. —
Shafei says that it does not suffice ;— the
same difference of opinion subsists in the case
of expiation of a Yameen, as shall be recited
at i&rge in treating of vows.
But not that of a share in a coparcenary
e, — IF a man/ being rich, emancipate his
half of a coparcenary slave, and then indem-
nify his partner for the value of the remainder,
this does not suffice for an expiation with
Haneefa. — The two disciples hold that it
suffices, because the expiator, becoming pos-
sessed of his partner's share by indemnifying
him, does in effect emancipate a slave who is
entirely his own property : — but it were other-
wise if the expiator be poor, as in this case
it is incumbent upon the slave to perform
Siayet, or emancipatory labour, for the part-
ner's share ; and hence the emancipation
is, so far, for a return. The argument of
Haneefa is that in this case the emancipation
is defective in the proportion of the partner's
share, until the transition of the property
is it to the emancipator be effected by his
indemnifying the other partner, and this
circumstance forbids its sufficiency for an
expiation.
The partial emancipation of a sole slave
(when followed by the emancipation of the
remainder) suffices. — IF a man emancipate
half of his own slave, as an expiation, and
afterwards emancipate the remainder for the
same purpose, it suffices, as this amounts to
no more than emancipating him by two sen-
tences instead of one ; and the defect which
appears in the second half on account of the
first half being already free is not regarded,
since this defect has been induced upon the
expiator's property, in consequence of his
emancipating it on account of expiation :
and a defect like this is not regarded ; but is
considered in the same light as when a man
having thrown a goat on its side for the
purpose of sacrifice, happens to direct his
knife in the animal's eye, so as to render it
defective, which is not regarded, the sacrifice
of the goat being still lawful, as the defect
has befallen the property on account of
sacrifice : contrary to the preceding case,
because there the defect appears in the
property-of the other partner. — This proceeds
upon the tenets of Haneefa. — W ith the two
disciples manumission is indivisible, and con-
sequently the emancipation of an half is, in
effect, the emancipation of the whole slave,
so that it is not considered in that instance
as proceeding from two sentences.
But not if carnal connexion take place
between the two emancipations. — IF a man
emancipate half his slave, as an expiation
of Zihar, and then have carnal connexion
with the wife upon whom he had pronounced
the Zihar, and afterwards emancipate the
other half, it is not valid as an expiation,
according to Haneefa, because he holds
that manumission admits of division, and
the condition of its sufficiency, in the sacred
writings, is that it be performed before the
man touch his wife ; but here the emancipa-
tion of one half takes place after touching.—
With the two disciples, on the contrary, the
emancipation of an half amounts to an
emancipation of the whole, wherefore the
emancipation in this case appears to take
place upon the whole ; before touching.
; Zihar may be expiated by fasting two month
BOOK IV.— CHAP. IX.)
DIVORCE.
121
— IF the person pronouncing a Zihar be not
possessed of a slave, his expiation may be
made by fasting for two successive months,
provided those do not include the Ramzan,
nor the festival of Fittir,* nor the days of
Nihrf or Tashreek.J The fast must be suc-
cessive (that is, uninterrupted), because it is
thus expressed in the text ; and it is a
condition that the Ramzan be not included,
because the abstinence observed in that period
is not counted in expiation ; for if it were to
be so counted, this would in effect induce the
annulment of a thing ordained by GOD ; and
it is also a condition that the festival of
Fittir, and the days of Nihr and Tashreek,
be not included, as (these being ordained
festivals) any extraordinary abstinence in
them is forbidden.
But if carnal connexion take place during
the fast, it must be commenced de novo. — IF
the expiator, either wilfully or through for-
getfulness, in the night, or, from the latter
cause, in the day time, should during the
term of expiation have carnal connexion with
the wife upon whom he had pronounced the
Zihar, he must again begin the fast anew,
according to Haneefa and Mohammed. Aboo
Yoosaf says that it is not incumbent upon
him to begin it again, as his connexion with
the wife does not amount to an interruption
of the fast, since that is not broken by it ;
and if it be said that one condition of the
fast is that it precede touching, it may be
replied that a compliance with that injunction
is here rendered impossible ; he therefore
holds that it must in this case suffice that a
part of it precede touching, for 'if the fast be
commenced anew (as in the doctrine of
Haneefa and Mohammed), if follows that the
whole would be subsequent to touching. —
The argument of Haneefa and Mohammed is
that the conditions of making expiation by
fast are twofold ; — one, that the fast precede
touching ; — another, that the twcv months be
exempt from touching ; and the second of
these being violated by the connexion, the
circumstance with respect to which the con-
dition was made is not fulfilled, and therefore
the fast must be commenced anew, because
though the observance of the first condition
be now rendered impossible, yet still it remains
in his power to perform the expiation in such
a way as may fulfil the second condition of
it.
IF the expiator wilfully break his fast in
the day time, within the two months, either
with or without excuse, he must commence
it anew, according to all the doctors, as this
is an interruption of the fast, a condition of
which is that it be for two months succes-
*The day of breaking Lent,
fThe day of sacrifice, being the tenth of
the month Zooal Hidjee when the pilgrims
assemble at Mecca.
JThe true sense of Taahreek (as here ap-
plied) the translator has not been able to
discover.
sively ; and this being still in his power it is
therefore incumbent upon him.
Fasting the only mode in which a slave can
expiate Zihar. — IF a slave pronounce a Zihar
upon his wife, a fast of two months succes-
sively is the only mode of expiation which is
allowed him, because he is incapable of
possessing any thing in his own right as a
proprietor, and consequently cannot expiate
in any other way. — And here, if the owner
of this person were to release another of his
slaves, or to distribute victuals to sixty poor
men, on his behalf, yet it does not suffice,
as a slave, being incapable of possessing
property, cannot be regarded as a proprietor,
from his master's consignment or transfer of
it.
Zihar may be expiated by the distribution
of alms. — IF the person pronouncing a Zihar
be incapable of observing a fast (from the, ill
state of his health or other cause), it is in-
cumbent upon him to give victuals to sixty
poor men, GOD having said, "WHERE A
MAN CANNOT FAST, LET HIS EXPIATION BE
MADE BY DISTRIBUTING VICTUALS TO SIXTY
POOR MEN." — By the term victuals is here
understood half a Saa* of wheat, or one
Saaf of barley or dates, or the value thereof
in money ; because the Prophet has said,
"for each pauper there is half a SAA of
WHEAT ;" — and also, because regard is here
had to the removal of want from each for
one day, and consequently the proportion to
each is determined by the Sadka Fitter, or
alms given on the festival breaking Lent. —
Observe that what is here said, "or the value
thereof in money," is the opinion of our doc-
tors, as has been related at large in the book
of Zakat. And if the expiator bestow one
Man J of wheat, or two Mans of Barley, or
dates upon the poor, it suffices, since this
fulfils the design, as wheat and barley are
of one and the same genus or nature, in
respect to food, and consequently to com-
pensate the defect in one grain by an addi-
tion of the other is lawful : contrary to a
case where a man fasts, and at the end of
a month becomes incapable of continuing
the fast, on account of sickness, for here the
expiation would not be effected by giving
victuals to thirty paupers, because fasting
and victuals are not homogeneous, and con-
sequently the completion of one by means of
the other is insufficient.
IF the person pronouncing a Zihar desire
another person to distribute the victuals for
him as an expiation, and the latter do so,
it suffices, as this amounts to borrowing so
much ; and the pauper to whom the person
so commissioned gives the victuals appears
first to make seisin of them in behalf of the
expiator, and then to receive them on his
own account ; thus the expiator is first
•About four pounds,
t About eight pounds.
{About eighty pounds.
122
DIVORCE.
JVOL
r.
seised of the property, and then makes it
over to the pauper.
IF the pronouncer of a Zihar feed cixty
paupers morning and evening it suffices,
where they are filled, whether they eat more
or less.— Shafei says that this does not
suffice, as it is requisite that the victuals he
regularly consigned to sixty poor men, the
same as in Zakat and Sadka Fitter, because
in consigning, their wants are more effect-
ually relieved than by feeding, which is only
an act of permission, and consequently can-
riot stand for consignment. — The argument
of our doctors is that the word Itaam, or feed-
ing is what is mentioned in the text, and the
literal meaning of that is to give a power
over food, which is found in permitting to eat,
the same as in consignment: but in Zakat
and Sadka Fitter ; consignment is essentially
requisite, and mere permission does not
suffice, because there the gift is incumbent,
and by gift, consignment is understood. -In
short, with respect to whatever is mentioned
in the sacred ordinances of the law under
the term victuals, permissfon is sufficient ;
but in what is mentioned under the terms of
gift or payment, consignment is a condition.
IF among the sixty paupers thus fed
morning and evening there by an infant
newly weaned from the breast, it does not
suffice, as the expiation ii not in that case
completely performed, a child of this de-
scription not being yet able to eat a full pro-
portion of victuals.
WITH barley-bread it is requisite that some
provision be bestowed such as it is usual to
eat with bread, as the appetite cannot be
satisfied with that alone ; but with wheaten-
bread this is unnecessary.
IF victuals be given to one pauoer for
sixty days, it suffices, because the relief of
want is what is required, and want recurs
every day, wherefore giving it to the same
person a second dav amounts to giving it to*
a second pauper.— But if the victuals for sixty
be given at once to a single pauper, it does
not suffice :— yet if thev be given to him at
sixty separate times within the day it suf-
fices, according to §ome ; but others allege
that it does not suffice.
Carnal connexion during expiation bv a/m?
does not require that the alms be distributed
anew. — IF the person pronouncing a Zahir
have carnal connexion with his wife within
the time of his performance of expiation by
alms, as above, still it is not necessary that
he should recommence, as it is not set forth
aa a condition in the word of GOD that this
"species of expiation should precede touching ;
but it nevertheless behoves him not to touch
her until he shall have made expiation, as
it is possible that in the interim he may be
enabled to perform that by the manumission
of a slave, or by fasting for two months, in
which case this would induce expiation by
those methods after touching, contrary to the
injunction of the text.
IF a man, as an expiation for two Zihars, i
distribute to each of sixty paupers a double
proportion of victuals (suppose one Saa of
wheat to each), yet this does not suffice for
more than one Zihar, according to the two
Elders. — Mohammed tays it suffices for both.
—But if the victuals be bestowed in this way
upon sixty paupers, as an expiation for the
breach of a fast, and for Zihar, it suffices for
both. — The argument of Mohammed is that
what is bestowed upon the paupers aforesaid
suffices for the performance of both expia-
tions, and the persons upon whom it is
bestowed are also proper subjects of both
expiations, and consequently the act is effect-
tual for two expiations, in the same manner
as where the occasions of expiation are dif-
ferent (as in the case of expiation for a
breach of fast and a Zihar),— or where the
expiations are separately performed. The
argument of the two Elders is that the inten-
tion, where things are of one and the same
nature, is nugatory : but regard is had to it,
when things are different in nature, because
a respect to intention is ordained, for the
sake of distinguishing between different
things ; and hence, if antonement were due
from a person for the neglect or omission of
two days' fast, in the month of Ramzan (a
Thursday and a Friday for instance), and
the person by fasting afterwards two davs
intend atonement, it suffices although the
days on which he thus fasts be not the same
with the days of omission, because the thing
is essentially the same ; contrary to where a
person owes one day's fast for atonement,
and another day's fast in pursuance of a
vow, — for then a distinction is necessary,
because of the difference between the things ;
now as the intention, where the things are
of the same nature, is nugatory, and as the
thing bestowed is capable of constituting a
single expiation only (because half a Saa of
wheat to each pauper is ordained as the
smallest amount sufficient towards expiation,
whereforelhe expiation is vitiated by being
under, but not by exceeding, the prescribed
quarttity), it follows that the distribution of
victuals as aforesaid is effectual towards one
expiation onlv, the same as where a single
expiation only is intended : — contrary to
where the victuals are bestowed at separate
times, because giving a second time is the
same as giving to another pauper.
IF the man upon whom two expiation of
two Zihars are thus incumbent emancipate
two of his staves, it suffices, although he
have no specific intention as to either the
slaves or the Zihars, respectively ; — and in
like manner, if he fast for four months,
or distribute victuals to one hundred and
twenty paupers, it suffices, because, as the
thing is the tame, specific intention is not
requisite.
IF moreover, this man emancipate a single
slave in part of expiation of two Zihars, it
rests with him to specify to which of the two
he intends the manumission of that slave to
apply : but if he were thus to emancipate a
slave in part of expiation of a Zihar, and of
a Murder, it is invalid with respect to either.
BOOK IV.-CHAP. X.]
DIVORCE.
123
Ziffer says, that the emancipation of a single
slave is totally ineffectual in either case.—
Shafei, on the other hand, maintains that it
is equally efficient in both cases, the speci-
fication resting with the expiators, because
all expiations are of one and the same
nature with respect to their end, which is
the covering of criminality, but as intention
with respect to things similar in nature, is
unavailable, the simple intention remains ;
and as (if that were expiation) the expiatior
is at liberty to specify to which expiation
the act is to apply, so here also. — The argu-
ment of Ziffer is that the expiator in this
case appears to have emancipated half his
slaves on account of one Zihar, and the other
half on account of the other Zihar. and con-
sequently, that he is not at liberty after-
wards to specify his emancipation as apply-
ing to either Zihar in particular, after having
granted it as applying to both, since he then
possesses no further option.— Our doctors
argue (with Shafei) that specification, with
respect to things similar in nature, is unavail-
able, and consequently nugatory, wherefore
simple intention remains ; but where things
arc different in nature (such as the eman-
cipation of a sfave, as an expiation for Zihar,
and also for homicide), the specification of
intention is available ; and the intention
being approved, the emancipation 'of the
slave does not apply wholly either to the
expiation for Zihar or to the expiation for
homicide.~As to what Shafei advances,
that all expiations are of one and the same
nature, in regard to their end, it may be
replied that a" difference of nature between
the expiations, in the present case, subsists
in regard to the different occasion of them,
although in respect to their end they be of
one and same nature.
CHAPTER X.
OP LAAN, OR IMPRECATION
Definition of the term. — LAAN, in the lan-
guage of the law, signifies testimonies con-
firmed by oath, on the part of a husband
and wife (where the testimony is strength-
ened by an imprecation of the curse of GOD,
on the part of the husband, and of the wrath
of GOD on the part of the wife), in case of
the former accusing the latter of adultery.
A man accusing his wife of whoredom must
verify his charge by an imprecation.— IP a
man slander his wife (that is to say, accuse
u^°L whor/,dom)' or denv the descent of a
child born of her by saying, 'this is not my
child, and she require him to produce the
ground of his accusation, imprecation is
incumbent upon him, provided both parties
be competent in evidence— (that is, of sound
£"&-tdlllli urcc,' a?d Mussulman*,) and
that the woman be of a description to subjects
her slanderer to punishment (that ii. mar.
ried,*) for if she be not such (as if she have
been for instance, enjoyed under an invalid
marriage, or delivered of a child whose father
is unknown), the man is not under any ob-
ligation to make an imprecation, although
she be a person competent in evidence.
Conditions under which the imprecation is
imcumbent. — LAAN, according to the tenets
of our doctors, is a testimony confirmed by
oath, as was before observed ; and it in-
volves, on the part of the husband, if his
accusation be false, the CURSE of GOD, which
stands as a substitute of punishment for
slander ; — or, on the part of the woman, the
wrath of GOD, which stands in the place of
punishment for whoredom, if it be true : —
it is therefore requisite that the parties be
both competent in evidence, as the ground
thereof is testimony ; and it is also requisite
that she be of a description to subject her
slanderer to punishment, as the Laan, with
respect to the husband, stands as a substi-
tute of punishment for slander (whence the
necessity of her being a married woman) :
and Laan is incumbet on account of the
denial of a child, because the husband, in
denying the child's descent, accuses his wife
by implication.
OBJECTION.— The denial of the child's
descent does not positively imply an accu-
sation of the wife, as it is possible that the
child may not have been begotten by the
husband, and yet that the wife is not an
adul tress (as where a man, for instance, has
had carnal connexion with her erroneously,
and a child is produced from it, in which
case the child is the undoubted progeny of
another), and hence, in his denial of its
descent from him, the husband speaks truly,
without any accusation of adultery against
the wife being implied*
REPL\-. — This possibility is of no weight,
because a stranger, if he were to deny the
descent of child from the known and re-
puted father, is held to be a slanderer not-
withstanding this possibility ; and so in this
case only, — It is also a condition of impre-
cation that the wife require her husband to
produce the ground of his accusation, as this
is her right, the demand of which is neces-
sary ; as well as that of all other matters of
right : and if he decline it, the magistrate
must imprison him until he either make an
imprecation, or acknowledge the falsity of
his change, by saving, "I falsely attributed
adultery to her,"— as this is a right due
from him to his wife, and which it is in his
power to render her, wherefore he is to be
imprisoned till stch time as he does what is
incumbent, or acknowledges his falsity, so
as that the occasion for the imprecation may
be removed (that is, the condition of impre-
cation, namely, the mutual change of false-
hood), because imprecation is not incumbent
except where each changes the plea of the
•Arab.— Mahsana. For a full definition
of this term, see SLANDBK.
124
DIVORCE,
VOL I.
other with falsehood, after the husband
having produced against his wife an accu-
sation of adultery. And the husband having
made an imprecation, the same is then in-
cumbent upon the wife, it being so ordained
in the Koran (but imprecation commences
with the husband, as he in this case appears
as the plaintiff) ; and if she decline miking
imprecation, the magistrate is to imprison
her till such time as the either agrees to
make it, or to acknowledge her husband's
veracity, this being his right incumbent upon
her, and which she is able to render, where-
fore she is to be imprisoned until she ren-
ders it.
Not incumbent, upon slaves or infidels — IP
a slave, or an infidel, or one who has suffered
punishment as a slanderer, accuse his wife
of whoredom, punishment for slander is due
upon him, because here imprecation is impos-
sible,* and consequently its original is due,
and this punishment for slander, that
being, the original ordinance in this case,
according to the wprd of GOD,— "!F MEN
ACCUSE MARRIED WOMEN OF WHOREDOM, AND
PRODUCK NOT POUR WITNESSES, SCOURGE
THEM WITH EIGHTY STRIPES ,'" no impre-
cation is the substitute of punishment for
slander ; and where the substitute cannot be
had, the original is due.
Nor, where the wife is a slave, an infidel
or a convicted slanderer. — IF the accuser be
a person competent in evidence, and his wife
be a slave, or an infidel, or a Kitabeea. or
one who has suffered punishment as a slan-
derer, or of the description of those whose
accusers are not liable to punishment, as
being an infant, or idiot, or adultress,
punishment is not due, nor is imprecation
incumbent upon him, as in this instance
neither competency in evidence nor marriage
(in the sense which induces punishmerfc) are
attached to the accused.
OBJECTION.—- It would appear that in this
case punishment for slander is due upon the
husband, as imprecation is a substitute for
that, and where the substitute cannot be
had. it follows that the original is due.
REPLY. — Punishment is not due upon the
husband, as he is capable of imprecation,
thepbstacle to which exists in this case on
the part of the wife, and this circumstance
precludes punishment, in the same manner
as where she acknowledges the truth of the
iccusation.— The foundation of ths is a say-
ing of the Prophet, namely. "There are four
descriptions of women with respect to whom
imprecation is not incumbent, Jews and
Christians married to MUSSULMANS, and
ilaves married to freeman, and free women
Tiarried to slaves."
Nor tftfier* bath parties are convicted s/an-
lerers,*— IP the accuser and his wife be per-
ions who have both already suffered punish-
*As infidels and slaves, not being compe-
:ent to give evidence, are incapahie of
precftion.
ment for slander, punishment is due upon
the former, because in this case a reason is
found against imprecation the part of the
accuser, he being incapable of making it.
Form o/ imprecation and the manner of
making it — THE manner of imprecation is
as follows : — The Kazee first applies to the
husband, who is to give evidence four several
times, by saying, "I call \GoD to witness to
the truth of my testimony concerning the
adultery with which I charge this woman ;"
and again, a fifth time, "may the curse of
GOD fall upon me if I have spoken falsely
concerning the adultery with which I charge
this woman," — after which the Kazee re-
quires the woman to give evidence, four
separate times, by saying, "I call GOD to
witness that my husband's words are al-
together false, respecting the adultery with
which he charges me/' and again, a fifth
time, "may the wrath of GOD light upon
me if my husband is just, in bringing a
charge of adultery against me," — Hasan
records it as an opinion of Haneefa that ^the
husband should, in making the imprecation,
address himself in the second person, saying
"by GOD I speak truly concerning the
adultery with which I charge you," because
the use of the second person does not admit
the possibility of the address affecting any
other. The reason for the form, as above
stated, is that the relative, when joined to
the third person, removes doubt.
When both parties have made imprecation
a separation takes place. — AND on both
making imprecation in this manner, a sepa-
ration takes place between them ; but not
until the Kazee pronounces a decree to that
effect. — Ziffer says that separation takes
olace upon the imprecation, independent of
any judicial decree, because a perpetual pro-
hibition is established by it, the Prophet
having said,, "the two who make impreca-
tion £an never come together," — which
proves {heir separation, as the Prophet's
forbidding their ever coming together after
imprecation expressly declares this. The
argument of our doctors is that as, in conse-
quence of the establishment of a prohibition
between them, the retaining of the woman
with humanity* is impossible, it is incum-
bent upon the husband to divorce her on a
principle of benevolence ; but if he decline
so doing, it then behoves the Kazee to issue
a decree of divorce, as the Kazee is the sub-
stitute of the husband in this matter for the
purpose of removing injustice : and a proof
of this is that Aweemar divorced his wife
after imprecation, in the presence of the
Prophet, which shows that the marriage still
continued, and was not virtually dissolved
by the imprecation, otherwise the Prophet
would Have prevented him from pronouncing
divorce. — Observe that the separation here
? Alluding to, the words of Koran,— "RE-
TAIN THEM WITH HUMANITY/ OH
THEM WITH KINDNESS. (See Rijat.)
BOOK IV.— CHAP. X.]
DIVORCE.
125
mentioned is an irreversible divorre, accord-
ing to Haneefa and Mohammed, because the
act of the Kazee must be referred to the hus-
band, as in cases of impotence.
The husband, on receding from his impre-
cation, may again marry his wife. — IF, after
imprecation, the husband should acknow-
ledge that his accusation was false, by say-
ing, "I falsely laid adultery to her charge,"
he becomes privileged with respect to her,
that is to say, it is lawful for him to marry
her as well as any other person.* This is
according to .Haneefa and Mohammed.
A boo Yousaf says that she it for ever pr^>
hibited to him, and that he cannot marry
her, — the Prophet having said, "two who
make imprecation can never come together/'
which shows the separation established be-
tween them to be perpetual: wherefor his
marriage with her is illegal.— The argument
of Haneefa and Mohammed is that the hus-
band's acknowledgment is a retraction from
his evidence (that is, from has imprecation),
and evidence is by subsequent retraction
rendered null and of no effect : and as to the
saying of the Prophet above cited, it means
that the parties cannot come together as
long as they both persevere in their impreca-
tion ; but after the husband's acknowledg-
ment, the imprecation no longer remains
either in substance or in effect, and conse-
quently they may then come together.
Imprecation occasions a decree of bas-
tardy.—Iv a husband accuse his wife by
denying her child, it is requisite that the
Kazee issue a decree denying the descent of
the child from him and affixing it upon the
mother ;f .and the manner of the impreca-
tion here is that the Kazee first makes the
husband give evidence saying, "I testify in
the sight of God that I speak truly concern-
ing the matter I have brought against her
in denying the child •" after which h* makes
the wife give evidence in the same manner
saying, I call God to witness that he speaks
falsely concerning the matter he has brought
against me, in denying the child."
IF a husband accuse his wife both by bring-
ing a charge of adultery ao^inst her, and also
by denying a child born of her, it is necessary
that both these circumstances be mentioned
in the imprecation, after which the Kazet is
to issue a decree, denying the descent of the
child from the husband, and fixing it upon
the mother, because the Prophet, once so
decreed upon such an occasion, and also, be-
cause the design of the imprecation in this
casg is to bastardize the child, wherefore a
decree must be passed agreeably to the
design of it.
A DECREE of separation between the parties
comprehends a decree of bastardy in respect
AiJ ?hlv *r *J rec°rded « an opinion of
Aboo Yoosaf that m a decree of separa-
tion, a decree of bastardy is not cornpre-
"That is, without her being previously
married to anotfeer.
tThat is, bastardizing it.
handed, but that it is requisite that the
magistrate first effect the separation, and
then say, "I throw the child upon the mother,
and remove it from the father's house ;"
because separation may sometimes take place
without affecting the descent of children, as
where a man accuses of adultery a wife who
has children,* in which case a separation is
established by imprecation, but bastardy is
not induced upon the children ; the Kazee's
mention of bastardy is therefore requisite.
A husband receding from imprecation must
be punished for slander. — Ira husband, after
imprecation, contradict himself, by acknow-
!ecjging that he had accused his wife falsely
let the magistrate punish him, because he
then acknowledges himself liab'e to punish-
ment ; and it is afterwards lawful for the
husband to marry her again (according to
Haneefa and Mohammed), because having
once suffered punishment for slander, com-
petency to make imprecation no longer ap-
pertains to him ; and the prohibition which
is the effect of the imprecation is removed.
In the same manner, if the husband and wife
make imprecation, and the husband after-
wards accuse of adultery a strange woman,
who is married, and suffer punishment on
that account, it then becomes lawful for him
to marry his wife again for the reason afore-
said And so also, if the wife, after divorce
in consequence of imprecation, be found in
adultery, and suffer correction from the Kazee
on that account, it then becomes lawful for
the husband to marry her again, as a com-
petency to make imprecation no longer
appertains to her.
Imprecation not incumbent where the hus-
band or wife is an infant, or an idiot. — IF a
man accuse his wife, she being an infant or
an idiot, imprecation is not incumbent upon
th» parties, because the accuser of such a
person is not liable to punishment for slander
unless he be a stranger \ imprecation, there-
fore, is not incumbent in the accusation of
such wives by their husbands, as it is the
substitute of punishment for slander. And
the rule is the same where the husband is
insane, or an idiot, because such an one is
not competent in evidence.
Or where the husband is dumb. — IF a dumb
person accuse his wife, imprecation is not
incumbent, because imprecation is not in- '
cumbent unless the accusation be expressed
in terms, as is the case in slander, where
punishment is not incurred unless the ac-
cusation has been expressly made.-^-Shafei
opposes this ; for he holds that punishment
is due upon the accusation of a dumb person,
and consequently, that imprecation is in-
cumbent, because his signs are the same as
the words of one who has the power of speech ;
but the argument of our doctors is that the
signs of a dumb person are not altogether
free from doubt, and punishment is removed
by any circumstance of doubt .
•Meaning, children already born, before
the period of the husband's accusation.
126
DIVORCE.
[Votl.
Or where the accusation is indirectly in
sinuated. — IF a man say to his wife, "you
pregnancy is not of me/' imprecation is no
incumbent. — This is the opinion of Haneef<
and Ziffer : and the reason upon which they
found it is, that the circumstance of preor
nancy does not admit of being positively
ceri tried, wherefore the husband's words do
not convey an immediate accusation. — The
two disciples say that imprecation is incum-
bent in this case, provided the woman be
delivered of a child within six months; anc
it is this which is meant by what is said in
the Mabsoot that "the existence of preg-
nancy at the time of accusation may be
certified ;" but to this we reply that where
the accusation cannot be immediately es-
tablished, it must remain suspended upon a
condition, in the same manner as if the hus-
band were to say to his wife, "if you produce
a child it is not mine ;" and the suspension
of accusation upon a condition is nugatory.
BUT if he were to say to her, "you are an
adulteress, and your pregnancy proceed from
adultery," imprecation is incumbent upon
both parties, as accusation is here established
in the mention of adultery. Yet the Kazee
is not in this case to issue any decree affect-
ing the descent of the foetus. — Shafei says
that a decree of bastardy must be pro-
nounced, because the Prophet decreed a
bastardy in the instance of Hillall, who had
accused his pregnant wife. — The argument
of our doctors is that the effect of a decree
of bastardy cannot take place until after de-
livery, since before delivery there is a pos-
sibility of doubt respecting the pregnancy ;
the Kazee, therefore, is not to decree a bas-
tardy.— As to the decree of the Prophet quoted
by Shafei, it is possible that the Prophet may
have been certified of the woman's preg-
nancy by inspiration.
Imprecation made posterior to the birth of
a child doe* not affect that child's descent —
IF a husband deny the descent of the child
upon the near approach of birth, or at the
time when it is usual to receive congratula-
tions, and to purchase clothes and make
preparation for it, his denial holds good,
and imprecation is^ incumbent upon him on
account of it : but if he do not deny it until
afterwards although imprecation be here
also incumbent, yet the descent of the child
remains established in him. — This is the
doctrine of Han ee fa. — The two disciples say
that the dental is admitted during labour, as
it is admitted within a little time, but not
within a long time, and hence a distinction
is made between the shorter1 period and the
longer, by the time of labour, as the pains of
labour are among the effects of breeding. —
The argument of Haneefa is, that it is im-
possible to fix any time, because time is fixed
for the purpose of consideration, aad man-
kind vary in the length of time necessary
for that purpose ; wherefore regard is had to
a thing which shows the child to be his,
namely, his receiving the usual congratula-
tions, or remaining silent at the time of such
congratulations, or purchasing things to pre-
pare for the birth, or Jetting that time pass
without denying it — This is where he is
present ; but if he be absent, and ignorant
of the birth of the child, and afterwards
come, the time aforesaid is regarded, accord-
ing to both authorities ; that is to say, with
Haneefa, it remains to him to deny the child
within such space of time as congratulations
are admitted — and with the two disciples,
within the space of time which corresponds
with a woman's labour.
IF two children be produced at one birth,
and the husband deny the descent of the
first-born, and admit that of the second, in
this case the parentage of both is established
in him, because they are both supposed to
be begotten from one seed ; and punishment
is due upon the husband, because he has
contradicted himself in acknowledging the
second child ; and if he admit the first, and
denv the second, the parentage of both is
established in him for the same reason ; and
imprecation is here incumbent because his
denial of the second child implies an accu-
sation from which he does not afterwards
retract (as in the former instance), since his
virtual declaration of his wife's chastity, in
acknowledging the parentage of one of the
children, here precedes the accusation, being
the same as if he were first to say, "she is
chaste," and then to say, "she is an adul-
teress" in which case imprecation would be
incumbent, and so here likewise.
CHAPTER XL
OF IMPOTENCE
•
*4n impotent husband must be allowed a
vear't probation after which separation
takes vlace — IF a husband be Irneen [im-
potent"), it is requisite that the Kazee appoint
the term nf one year from the period of liti-
gation, within which if the accused have
carnal connexion with his wife it is well ;
but if not, the Kazee must pronounce a sepa-
ration, provided such be the desire of the
wife, because the same is recorded from Alee,
and Omar, and Ebu Musood, — and also, be-
cause the woman is entitled to the carnal
njovment, and it is possible that the hus-
:>and may be incapacitated from the per-
formance of that act, not only by a radical
nfirmity, but also by some supervenient and
accidental cause, whence it is necessary that
some certain term be appointed, in order that
he true reaspn of his inability may be ascer-
ained ; and this term is fixed at one year
>ecause that contains four seasons, and dis-
•ases are principally occasioned by an excess
ither of heat, cold, dryness, or humidity,
jualities which are peculiar to each season
espectively ; and it is probable that one of
lesefour may particularly agree with the
BOOK IV.-CHAP. XI]
DIVORCE.
117
man's condition, fso as by its influence to
dissipate his disease ; thus it may be ascer-
tained, when a year has completely elapsed,
whether his inability proceeded from any
radical infirmity, in which case, it is impos-
sible to retain the wife with humanity,* and
hence it is incumbent upon the husband to
separate from her, upon a principal of bene-
volence : but if he should not do so, the
Kazee is in that case to pronounce a separa-
tion, as his substitute ; yet it is requisite
that the woman desire such separation, as is
her right.— -The separation here mentioned
amounts to the execution of a single divorce
irreversible, because the act of the Kazee is
attributed to the husband, whence it is the
same as if he had himself pronounced such
a sentence upon her. Shafei alleges that
this Reparation is an annulment of the mar-
riage : but with our doctors marriage is held
to be incapable of being annulled of itself,
although it may be annulled by effect, in the
same manner as in the case of a husband's
apostacy. And this separation amounts to
an irreversible divorce, not a reversible, be-
cause the intent of it is the woman's relief
from a hardship, which cannot be effected but
by complete divorce : for if it were not so,
it would still remain in the husband's power
to reverse it, which would defeat the de-
sign.
And the wife retains her whole dower, if
the husband should ever have been in retire-
ment with her.— The wife, in the case here
mentioned, is entitled to her whole dower, if
the husband should ever have in retire-
ment with her, because retirement with an
Inneen is accounted a Khalwat Saheeh, or
complete retirement, as well as with any other
person ; and an Edit is incumbent upon her,
as was mentioned in a former place. What
is here advanced proceeds upon a supposition
of the husband acknowledging that he has
not performed the carnal act with Kis wife.
But the wife9 s claim of separation maybe
here defeated by the husband swearing that
he had enjoyed her.— BUT if he controvert
her plea, asserting that he has copulated
with her, and she have been married as a
Siyeeba, his affirmation upon oath is to be
credited, because he is the defendant against
her claim of separation, and the affirmation
of a defendant must be credited when given
upon oath : moreover, the instrument of
generation is originally created free from
inability or disease, and it is natural that he
should perform the carnal act where no
obstruction exists : and the declaration of a
person is to be credited when apparent cir-
cumstances bear testimony to his veracity,
and where he rests his cause upon the nature
of things. If, therefore, the husband thus
™&* oajH, the wife's right of separation is
thereby defeated ; but if he decline this, the
term of a year is then to be appointed as
•Alluding to the words of the Koran be-
fore mentioned.
aforesaid. Where she was married as a
virgin, she is to be examined by some of her
own sex, and if they declare her to be still a
virgin, the term of a year, is to be appointed,
as above, because the husband's falsehood is
then evident : but if they declare her muli-
ebrity,* the Kazee is in that case to require
the husband to make oath, which if he do,
her right to separation is defeated ; but if
he decline, decision is to be delayed for a
year as above,— -All that has here been said
supposes the husband to be merely Inneen, or
impotent: but if he be a Maj boob, or com-
plete eunuch (that is, one deprived both of
yard and testicles, or of the former only),
the Kazee is to pronounce an immediate
separation (where such is the woman's
desire), because in this case the delay of a
year can be attended with no advantage :
if, however, he be only a Khasee, or simple
eunuch (that is, castrated), decision is to be
deferred for a year, as in a case of impotency,
because there the yard still remains with
which it is possible that he may perform the
act.
Rules to be observed at the expiration of the
year of probation. — WHERE the term of a year
is appointed for the trial of a man charged
with impotence by a wife whom he had
married as a virgin, and he declares, at the
expiration thereof, that he has had carnal
connexion with her within that interval, and
she denies this, she is then to be examined
by some of her own sex ; if they pronounce
her to be still a virgin, she has it at her
option either to separate from her husband,
or to continue with him, because the testi-
mony of the examiners is confirmed by her
virginity, that being the original state of
every woman ; but should they declare her
muliebrity, the husband is then to be re-
quired on the other hand to make oath
which if he decline, she has an option, as,
above, her plea being strengthened by the
circumstance of his declining to swear ; but
if he swear, she has no option. If, moreover,
she was a Siyeeba originally (that is at the
time of marriage), and the husband declare
that he has had carnal connextion with her
within the year of probation, and she deny
this, his declaration upon oath is to be cre-
dited.— that is to say, the oath is to be ten-
dered to him, which if he take, she has no
option ; but if he decline it, she has then an
option as already stated. And here, if she
choose to continue with him, she has no sub-
sequent option, as by so doing she manifests
an assent to the relinquishment of her
right. t
The year of probation to be calculated by
the lunar calendar. — TH« year of probation
appointed by the Kazee in cases of impotence
is to be counted by the lunar calendar ; this
is approved ; and the days of the courses,
and of religious fasts (such as Ramzan), are
•Meaning womanhood, as opposed to vir-
ginity.
128
DIVORCE.
[VOL. I.
therein included, -as these occur in all year
alike, nor can a year pass without them ; but
the days of sickness of either party are not
included, as a year may pass exempt from
such an occurrence.
A husband cannot annul the marriage,
where the defect is on the part of the wife —
IF the defect be on the part of the woman,
the husband has no Bright to annul the mar-
riage* - Shafei maintains that he may annul
it, and put her away, on account of any of
the five following defects namely, leprosy,
scrophula, madness, Ritk.f or Karrn.t be-
cause some of these (such as the two latter)
are obstructive of generation ; and others
(such as the three former) are causes of
natural and insuperable aversion, as is con-
firmed by a tradition of the Prophet, who has
said, "flee from LEPERS as ye would from a
WILD BEAST." — The argument of pur doctors
is that if the enjoyment of the wife's person
were to be totally precluded by any circum-
stance (such as death, for instance, before
retirement), yet the marriage is not annulled,
but is rather established and confimed, inso-
much that the whole dower remains due ; and
hence, where such privation of the connubial
enjoyment is merely dubious, on account of
its being occasioned only by a defect in the
subject, it remains unannulled, a fortiori -
upon this ground, that the design of matri-
mony is to legalize generation, and the
connubial enjoyment is the advantage pro-
posed in it ; and the ability to perform the
act, where any natural obstruction exists,
may be obtained, as in a case of Ritk or
Karrn (for instance) which are to be remedied
by chirurgtcal operations ; and in all other
cases the ability is evident.
A wife cannot sue for a separation on
the ground of her husband being leprous,
scrophulous, or insane. — IP the husband be
lunatic, leprous, or scrophulous, yet his wife
has no option, as in cases where he is an
eunuch, or impotent. This is according to
Haneefa and Abou Yoosaf. Mohammad says
that she is entitled to an ootion, in order that
she may remove an evil from herself ; con-
trary to the case of a husband, he having it
in his power, in similar circumstances, to
relieve himself by divorce. — The argument
of the two Elders is that in marriage no
right of option originally exists, for if this
were allowed, it would operate to the destruc-
tion of the husband's right ; and it is an -
mitted in the case of eunuchs, or of persons
naturally impotent, only because the circum-
stance of natural or accidental infirmity tends
to defeat the tnd for which marriage was in-
stituted ; but with persons of the descriptions
now under consideration this reason does not
• That is, to break it off so as to destro)
the woman's claim to her dower, which coulc
not be done by divorce.
t Vulva impervia coeunti.
| A bone, or other unnatural excrescence,
yulva anteriore parte enascn*.
hold, as the husband who laboures under any
of those defects is still capable of generation,
whence an evident difference appears between
the two cases.
CHAPTER XII.
OF THE EDIT.
Definition of the term. — BY Edit is
stood the term of probation incumbent t.
a woman in consequence of the dissolu ,
of marriage after carnal connexion :
most approved definition of Edit is, the term
by the completion of which a new marriage
is rendered lawful.
The Edit of a divorce of a free woman it
three menstruations. — WHEN a man repu-
diates his wife, being a free woman, either
by a reversible or an irreversible divorce, or
when separation takes place between a hus-
band and wife, without divorce, after carnal
connexion, the Edit, or woman's term of
probation, consists of three terms of her
courses, provided she be one who is subject
to the menstrual discharge, GOD having so
commanded in the Koran. — The separation
which takes place between a married couple,
independent of divorce, bears the same
construction as divorce, because the Edit is
made incumbent in a case of divorce for the
purpose of ascertaining whether the woman
be pregnant, and the same necessity occurs
where separation takes place between a hus-
band and an enjoyed wife without divorce. —
The separation without divorce may be occa-
sioned either by a woman admitting the son
of her husband to carnal connexion, or by
her apostatizing from the faith.
And of one not subject to courses, three
months : and of one who is pregnant, the
term of tier travail. — THE Edit of a woman
who, on account of extreme youth or age,
is not subject to the menstrual discharge,
is three months, because GOD has so ordained
in the sacred writing, — The Edit of a preg-
nant woman is accomplished by her delivery,
whether she be a slave or free, because GOD,
in the sacred writings, has so ordained re-
specting woman in that situation.
That of a slave is two menstruation — THE
Edit of a female slave is two terms of her
courses, because it is thus mentioned in the
traditions, and also, because bondage is re-
strictive to the half, whence it would appear
that the Edit of a slave should be only one
term and a half of her courses, but the men-
strual discharge b^ing ift capable of subdie vi-
sion, the half is, of necessity, made a whole
term, and hence the Edit of such an one is two
terms ; and it is to this that Omar advert,
where he says, "I would if possble fix the
Edit of a female slave at one and an half of
her courses."
And of one not subject to courses a month
and an half. — WHERE the farnale slave is
one who from extreme youth or age is not
BOOK IV.— CHAP. XII.]
DIVORCE.
129
subject to the menstrual discharge, her Edit
is one month and an half, because time being
capable of subdivision, the terai is fixed at
the half on account of her bondage.
Edit of widowhood — THE Edit of a free
woman upon the decease of her husband is
four months and ten days. Such being the
term mentioned in the Koran: — and that of
a female slave in the like circumstance is two
months and five days, bondage being restric-
tive to the half.
Case of Edit of widowhood after divorce.
—!F a man divorce his wife upon his deathbed,
so as that she still inherits of him,* Haneefa
and Mohammad say that her Edit, in conse-
quence of his decease, is four months and
ten Hays, if she complete three terms of her
courses within that period; but if the three
terms be not accomplished, as requiring a
longer time (five months for instance), her Edit
is in that case three terms of her courses, what-
ever time those may require. In short, here
are two terms ; one, that of four months and
ten days ; and the other, that of three mem-
struation ; and whichever of these is the
longest, the same is the term of Edit. — Aboo
Yoosaf says that the Edit of this woman
is three menstruations. — This difference of
doctrine obtains where the sick person has
repudiated his wife by one divorce irre-
versible, or by three divorces:— but where
the divorce is reversible, the Edit is four
months and ten days, according to all the
doctors. The argument of Aboo Yoosaf, in
support of this doctrine, as above, is that the
marriage had been dissolved and terminated
by the divorce, previous to the decease of the
husband, and the Edit of divorce is three
terms of the courses, whence such is the Edit
incumbent in the present case, as that of four
months and ten days (being the Edit of
widowhood), is required only where the mar-
riage was dissolved by the husband's decease ;
but in the present case it was dissolved
before his death, by divorce. To this indeed
it may be objected that, if the ntarfiage be
dissolved before the husband's decease, it
would follow that the wife cannot inherit : —
but the marriage is accounted to hold, in
respect to inheritance only, and not so as to
alter or affect the Edit : — contrary to where
a dying husband repudiates his wife by a
reversible divorce ; her Edit in that case
being universally held to be strictly an Edit
of widowhood, since the marriage then
actually continues in every shape, — The
argument of Haneefa and Mohammed is that
the marriage being here accounted to con-
tinue with respect to inheritance, is also
accounted to continue with respect to Edit ;
and hence the longest of the two is regarded.
— If a man be put to death for apostasy, so as
that his wife inherits of him, the same diffe-
rence of opinion obtains respecting her Edit
as is above recited. — Some commentators
allege that her Edit is held to be three terms
of her courses by all the doctors, as her
marriage is not accounted to continue to the
time of her husband's decease with respect
to inheritance, since a Mussulman woman
cannot inherit of an infidel ; but yet the
wife does here inherit, because her claim to
inheritance is established upon the instant of
her husband's apostasy j— her Edit, therefore,
is three terms ot her course.
A female slave, emancipated during Edit,
must observe the Edit of a free woman.— IF
a master emancipate his female slave, whilst
in her Edit fro.n a reversible divorce, she
is in that case under Edit as a free woman,
and must count it accordingly : because, in
reversible divorce, so long as the Edit is
unaccomplished, marriage continues in every
shape :— but if a master emancipate his
female slave, whilst in her Edit from a di-
vorce irreversible, or from the deceased of her
husband, her Edit is not affected or altered
by such emancipation:— that is, it does not
become the Edit of a free woman, because
her marriage has been completely dissolved
by the irreversible divorce, or by the hus-
band's death.
Rule of Edit of a woman past bearing.—
IF an Ayeesa* be in her Edit, counting it by
months, and the menstrual discharge should
chance to appear upon her, in this case all
regard to that portion of the Edit which has
been counted by months drops, and her Edit
commences de novo, to be counted by the
terms of her courses.— The compiler of this
work observes that this is where the Ayeesa
had been subject to the courses before she
became hopeless of children, as in this case
her despair is done away ; and this - is ap-
proved, because it is evident that months,
with respect to such a woman, are not
the absolute substitutes of Edit : but if an
Ayeesa be one to whom the menstrual dis-
charge had never occurred before, and be in
her Edit, counting it by months, and' see
the appearance of the sanguinary discharge,
regard to the term of the Edit which has
been counted by months does not drop, be-
cause the counting by months is the original
rule with respect to such a woman, and not
merely the substitute for her courses.
IF a woman be in her Edit counting it
by the term of her courses and after two of
those they should stop, and she become an
Ayeesa, her Edit commences de noVo, to be'
counted by months, and all regard to- the
courses drops, so as that the substitute
(which is months) and the original (which is
the courses) may not be confounded.
Rule of Edit in an invalid marriage. — *
THE Edit of a woman wedded by an invalid
marriage is counted by her courses, both in
case of her husband's death, and also of a
separation taking place between them; and
so likewise that of a woman with whom a
man has had carnal connexion erroneously ;
because in those cases, the Edit is incumbent
*See Chap. IX
* laterally, a despairer, that is, £» woman
whose courses are stopped, and who is con-
sequently supposed to be past child-bearing.
130
DIVORCE.
[VOL. I.
merely for the purpose of ascertaining whe-
ther the woman be pregnant, and not as a
right of marriage ; and as the courses are
the means' of ascertaining the state of the
womb, the Edit of those women is to be
counted by their returns.
Edit of an Am-WaHd.— IF the master of
an Am-Walid should die, or emancipate her,
her Edit is three terms of her courses.—
Shafei says that her Edit is only one term,
as it is incumbent upon her on account only
of the extinction of the owner's propriety,
and consequently no more is requisite to
effect it than what may suffice to cleanse her
womb. — The argument of our doctors is,
that Edit is incumbent upon her on account
of the extinction of Firash* (for she is the
partner of her master's bed), and is, therefore,
the same as that used in the dissolution of
marriage: — moreover, Omar has said, "the
EDIT of an AM-WALID is three terms of her
courses." — If the Am-Walid 'be not subject
to the menstrual discharge, her Edit is three
months, the same as that of a married
woman.
Edit of the widow of an infant. — IF an
infant die; leaving a wife pregnant, her Edit
is accomplished by her delivery, according
to Haneefa and Mohammad. Aboo Yoosaf
says that it is four months and ten days
(and such also is the opinion of Shafei), be-
cause the pregnancy cannot be attributed to
the infant, and is, therefore, with respect to
him, the same as if it had taken place pos-
terior to his decease. — The arguments of
Haneefa and Mohammed herein are twofold ;
FIRST, the word of GOD, who has said in the
Koran, *'A WOMAN, IF HE BE PREGNANT,
MUST WAIT UNTIL HER DELIVERY/'— which IS
generally expressed, and therefore applies to
the woman here treated of : SECONDLY, the
Edit of a woman whose husband dies is (in-
case of her 'pregnancy) fixed at the remain-
ing term of her travail, whether that be short
or long : now the Edit of a widow is not
designed for the purpose of ascertaining the
state of her womb ; for if it were so, if would
not be determined by the lapse of time
(supposing her to be one who is subject
to the menstrual discharge), but by three
terms of her courses : whereas we see that
the law fixes it at four months and ten days,
although she be a woman of that description ;
but it is made incumbent merely as a fulfil-
ment of one of the rights of marriage; and
the same reasoning applies to the wife of the
infant in question, although her pregnancy
be not attributed to him : contrary to where
pregnancy takes place, subsequent to the
infant's decease ; for here her4* Edit of four
months and ten days having commenced,
* Firash literally means a bed, whence it
is metaphorically used to express a right of
cohabitation or concubinage : it is so used
in the setise of a wife or a concubine, whence
it is here and elsewhere translated partner of
his bed.
is not afterwards to be altered by her sub-
sequent pregnancy ; but in the case now
under consideration, the Edit of the term of
travail was due from instant that Edit
become incumbent ; hence there is an evi-
dent difference between the two cases ; and
consequently there is no analogy between
them. The pregnancy is determined to have
taken place after the death of the husband,
where the woman is not delivered within less
than six months from the date of the hus-
band's decease.— This is the approved rule.
Some have said that it is so judged only
where she is delivered within not less than
two years. But if a husband, being adult,
should die, and his wife be delivered of a
child at any time between six months and
two years from the period of his decease, her
Edit is accomlished by her delivery, be-
cause the pregnancy is in this case attributed
to the husband, and hence is accounted the
same as if it had existed at the period of his
decease.— Observe that the parentage of a
child born of the wife of an infant cannot be
established in the infant,, whether her preg-
nancy had appeared during his life, or not
until after his decease, because an infant,
not being possessed of seed, cannot be con-
ceived capable of impregnating a woman ;
and marriage is not held to be a substitute for
seed,* excepting where the existence of seed
on the part of the man may be supposed.
Edit of divorce of a menxtruous woman,
— IF a man divorce his wife whilst in her
courses, that term is not to be counted in her
Edit, because the Edit is fixed at three com-
plete menstruations, and if the above were to
be counted, it would induce a deficiency, as
part of that had passed previous to divorce,
and therefore cannot be included.
Edit of a divorced woman who has con-
nexion with a man during the term of her
Edit of divorce.— lv a man have erroneous
carnal conrtexion with a woman who is in
her Edit from divorce, another Edit becomes
incumb'nt upon her, and the two are blended
together,— that is to say, her ensuing courses
are accounted in both Edits ; and if the
former Edit should be accomplished before
the latter, the accomplishment of that still
remains incumbent upon her. This is the
opinion of our doctors. — Shafei mamams
that two Edits cannot be blended together,
because the Edit is an act of piety (as it
restrains from taking another husband, and
so forth) and two acts of piety are not per-
mitted to be united in one account ; as m
fasting for instance, where no part of the
abstinence of one day can be put to the ac-
count of another.— The argument of our doc-
tors is that the design of the Edit is to ascer-
tain the state of the womb, and as that is
answered by a single Edit, the two Edits may
be counted together ; and piety is not the de-
sign of the Edit, but rather a dependant on it;
•That is, cannot be held to amount to a
virtual establishment of parentage.
BOOK [V.— CHAP. XII.]
DIVORCE.
131
whence it is that the Edit miy be accom-
plished, even without the knowledge of the
woman, merely by her refraining from going
abroad, or from marrying another husband,
or from consummating her marriage with
him during the term ot it.
Edit of a wid>w who admits a man Jar -
ing her Edit of widowhood.— IF a man have
carnal connexion with a woman who is in
her Edit from the death of her husband, she
is to complete that of four months and ten
days, being the Edit of widowhood ; at the
same time counting such terms of her courses
as may occur within the remainder of that
time, so as that the two Edits may be counted
together as far as is possible,
The Edit of a widow, or a divorced wife ,
may be accomplished without her knowledge.
—THE Edit of divorce commences imme
diately upon divorce, and that of widowhood
upon the decease of the husband ; if, there-
fore, a woman be not informed of her widow-
hood or divorce until such time as the term
of Edit be passed, her Edit is then accom-
plished, because the occasion of Edit being
incumbent is widowhood or divorce, and it
is therefore held to commence upon the
occurrence of the occasion. — Our modern
doctors have decreed that the Edit of divorce
should not bt held to commence until the
divorce be publicly declared, in order to
guard against collusion between the parties ;
as it is possible that a husband and wife
might privately agree to declare a divorce,
and pretend that Edit had already past, so
as that, by this meani, the marriage being
dissolved, he might be enabled to acknow-
ledge a debt in her favour, or make her a
bequest of more than her proper inheritance.
Edit from an invalid marriage. — IN an
invalid marriage the Edit commences imme-
diately upon the Kazee's decree of separation,
or upon the determination of the husband,
expressly signified, to refrain from carnal
connexion.— Ziffcr says it commerfce from
the date of the lait carnal connexion from
parties because, in an invalid marriage, ft is
t* carnal connexion which g.ves occasion
for it, and not the marriage.-— Tht argu-
ments of our doctors are twofold ;— FIRST,
every instance of carnal connexion occurring
man invalid marriage stands only as one
single met, as they all proceed from, and origi-
nate m ; one contract (whence it ts that one
dower suffices for the wholt) : wherefore,
until the actual stparation, or determination
signified, as above, Edit cannot be estab-
lished, for in every previous instance of
carnal connexion it is possible that the same
may be repeated; and hence, so long at the
separation or determination do not exist, no
particular instance of the carnal act can be
positively termed the last :— SICONDLY, the
last instance of carnal connexion cannot be
ascertained to be the laat, but by the hus-
band i ; signified determination to refrain for
the future, since permission on the part of
the woman, and ability on thai of the man,
in a matter of so concealed and doubtful a
nature as carnal connexion, stand as a con-
tinuance of it, and any other man wba may
be desirous to marry the woman will require
to know the effect of the Edit ; it La there-
fore requisite that something known and
visible be substituted for that which is con-
cealed, so as that such visible circumstance
miy afford a standard whereby to determine.
A uuman's oath confirms the Accomplish*
mint of her Edit. — IF a woman under Edit
should declare that it is accomplished, and
her husband deny this, her declaration upon
oath is to be credited, because she is confided
in this point and he has thrown an impu-
tation upon her veracity ; she is therefore to
swear in the manner of a plaintiff.
Case of a woman re-married after divorce
and again repudiated. — WHEN a man hiving,
repudiated his wife by an irreversible divorce,
marries her again during her Edit, and after-
wards divorces her before consummation, a
complete dower is in this case incumbent
upon him, and upon the woman an Edit de
novo, according to Haneefa and Abop Yoosaf,
^-Mohammed says that no more is incum-
bent upon the man than an half dower, nor
upon the woman that the accomplishment of
her first Edit, because the second divorce is a
divorce before consummation, and, therefore
does not require either that he should pay a
complete dower, or that he should observe a
new Edit ; nor does anything remain with
respect to her, but that she complete the first
Edit incumbent in consequence of the first
divorce : for the obligation upon the woman .
to complete her first Edit disappeared upon
the husband marrying her again ; but this
last marriage being done away by his divorc- /
ing her a second time, her obligation to the •
completion of her first Edit recurs. The .
argument of Haneefa and Aboo Yoosaf is
that the second divorce is, in fact, given after
carnal connexion, since the woman is still
actually within the seisin of the man in
consequence of such connexion formerly had
with her, the effect of which remains, namely,
the Edit ; and where he marries her again
during her Edit, she being still within his,
seisin, such possession is the substitute of
that which appertains to him in virtue of the
second marriage ; as in the case of an usurper,
who if he make purchase of the article
usurped whilst it is within his seisin, is held
to be seised of the purchase on the instant of
the execution of the contract of sale ; it is
therefore evident that the second divorce is a
divorce after carnal connexion.— Ziffer says
that no Edit whatever is incumbent upon
the woman, because, the former Edit dropt
in consequence of the second marriage and
therefore cannot rocur ; and no Edit is due
on account of the second divorce, as thttt is a
divorce before consummation : but the argue*
ments of the two Elders, as above recited,
are a sufficient reply to this.
Ir a Zimmee, or infidel subject, repudiate
his wife who is also an infidel subject, no
Edit is incumbent upon her : and the same
rule applies to an alien woman who having
132
DIVORCE.
[VoL. I.
been converted to the faith, comes from the
foreign into the Mussulman territory : * it is
therefore lawful for such women to marry
before the expiration of the term of Edit,
unless they be pregnant. This is the opinion
of Haneefa with respect to such infidel sub-
jects as do not hold or believe in the obliga-
tion of Edit. The two disciples say that Edit
is incumbent upon women of either descrip-
tion ;— upon infidel subjects, because they
have bound themselves to the observance of
all such things as appertain to the temporal
law ; and upon aliens who, having embraced
the faith, come into the Mussulman territory,
because it is so upon sueh women on other
accounts, such as the death of their husbands,
or the in admitting the son of the husband to
carnal connexion, and is therefore equally
obligatory on account of separation of coun-
try ; — contrary to the case where a man, being
converted to the faith, comes from a foreign
into a Mussulman territory, and his wife
remains in the foreign country, for upon her
no Edit is incumbent, as the obligation of it
cannot reach or effect her in a foreign land.
— The argument of Haneefa with respect to
infidel subjects is that they not being under
any obligation in respect to the ordinances of
the law, the obligation of the Edit, as a right
of the law, cannot be conceived to affect
them ; nor can it be supposed to do so on
account of the right of the husband, as he
does not hold or believe in the obligation of
it , and his arguments with respect to alien
woman are twofold ;— FIRST, GOD has con-
manded Mussulmans, saying, YE MAY
MARRY FOREIGN WOMEN, WHO BEING CON-
VERTED TO THE FAITH. COME INTO THE TER-
RITORY OF THE BELIEVERS ;" SECONDLY
wherever the Edit is incumbent, the right of
man is connected with it ; but a Hirbee, or
alien, is not considered as man, but as mere
matter (whence it is that he is made a pro-
perty or slave).~But where the woman is
pregnant the Edit is incumbent, on account
that the foetus of which she is pregnant is of
established descent. — It is recorded from
Haneefa that it is lawful to marry such
women, being pregnant, but that the hus-
band must refrain from carnal connexion
until after delivery, in like manner as in the
case of women pregnant and by whoredom.—
The former, however, is the better opinion.
Section.
Of Hidad, or Mourning.
Definition.— BY Hidad is understood a
woman abstaining from the use of perfumes,
such as scented or other oils ; or of ornaments,
such as dying the edge of the eyelids with
antimony, and so forth, except on account of
some particular pretext, or (as is said in the
Jaina Sagheer on account of aches or pains
wlych those application may remedy.
This supposes a woman who, having been
converted to the faith in a foreign land,
deserts her infidel husband there, and comes
into me Mussulman territory.
Mourning is incumbent on the death of a
husband — HIDAD, or mourning, is incum-
bent upon a woman whose husband dies,
where she is of mature age and a Musslima,
because the Prophet has said, "It is not law-
ful for a woman who believes in GOD, and a
future state, to observe HIDAD for more than
three days on account of the death of any one
except her HUSBAND ; but for him it is incum-
bent upon her to observe HIDAD for the space
of four months and ten days.
Although he die during the wife's Edit
from irreversible divorce — OUR doctors say
that it is equally incumbent upon a woman
whose husband dies whilst she is tinder
repudiation by irreversible divorce. — Shafci
asserts that it is not incumbent upon her,
because the sole intention of its institution is
to signify grief for the decease of a husband
who has faithfully adhered to the marriage
contract until death ; but there is no cause of
grief for the demise of one; who had, during
life, thrown his wife into aifficulty and per-
plexity by divorce. The arguments of our
doctors, in support of their opinion upon this
point, are twofold, FIRST, the Prophet forbade
women under Edit dyeing their hands with
Hinna,* as it is a species of perfume ;
SECONDLY, mourning is incumbent as a sign
of grief tor the loss of the blessings of matri-
mony, which is not only the means of her
support, but also of the preservation of her
chastity ; and an irreversible divorce is a more
complete termination of those blessings than
even death itself, since it is lawful for a
woman to perform the last offices of ablution,
and so forth, to the corpse of a deceased hus-
band from whom she is not irreversibly
divorced, whereas it is not lawful for her to
perform those offices to the corpse of one
from whom she is completely divorced ;
wherefore in this case also a mourning is
incumbent. — It may here be observed that
mourning is incumbent for two reasons :
FIRST, as* it is a manifestation of grief (as
was mentioned above. SECONDLY, because
ornaYnenting or setting off the person by the
use of the above articles is a means of ex-
citing the desires of men, and to a woman
under Edit marriage is forbidden, wherefore
she must refrain from the use of such things,
lest she fall into that which is prohibited. —
It is recorded, in the Naki Saheeh, that the
Prophet would not permit women under Edit
to use antimony upon their eyelids, or to
apoint themselves, as the former is an orna-
ment, and the latter is one way of using per-
fume.— By what is said in the definition of
Hidad, in the beginning of this section, viz.,
"abstaining from perfumes, and so forth,
except on account of some particular pre-
text," is to be understood the use of
those is lawful, where there is any sufficient
•A sort of herb, the juice of which dyes
the palms of the hands and soles of the feet
of a reddish colour. The herb Cyprus, or
privet.
BOOK IV.— CHAP. XII.]
DIVORCE.
133
reason for it, as they are then used of neces-
sity ; but it is requisite that the intention [of
the mourner] in the use of them be medicine,
and not ornament.
IF a woman be accustomed to the use of
unctions, in such a manner that there might
be an apprehension of her health suffering
from the disuse, in this case, provided the
cause for apprehension be in her conception
apparent and evident, it is lawful to continue
the use of them, because things of which
occurrence is strongly apprehended by her
are considered as actually existing and estab-
lished, and in the same manner, she may
wear warm furred or velvet garments, where
there is a necessity : but it is in no way law-
ful for her to use Hinna, because of the pre-
ceot of the Prophet before recited : nor to
wear cloth dyed with saffron, before that
gives a perfume.
Mounding not incumbent upon infidel
women or infants (but it is incumbent upon
slaves). — MOURNING is not incumbent upon
an infidel woman, as she is not bound to the
observances required by the law ; neither is
it incumbent upon infants or girls under age,
for the same reason ; but it is incumbent
upon female slaves, they being bound to the
observances of the law in all such points as
do not affect the right of their owner, which
is the case with mourning ; it is to be ob-
served, however, that the mourning, with
respect to female slaves does not include a
prohibition from going abroad, since this
would be an infringement upon the pro-
prietor's right, which precedes the right of
GOD, as the individual is necessitous, whereas
GOD, is not so.
Nor upon Am-Walid, nor upon widows
from invalid marriage. — MOURNING is not
incumbent upon an Am-Walid under Edit
from the decease of her proprietor ; nor upon
a woman under Edit who has been contracted
in an invalid marriage, because, with re-
spect to such women, the blessing!? of mar-
riage cannot be said to perish so as to affbrd
a reason for the manifestation of grief, ihore-
over, ornaments and the use of perfumes,
and so forth, are in their original nature
allowable : and where no special reason
appears for the prohibition of them, they
necessarily continue to be so.
Proposing for a woman during her Edit
is disapproved. — IT is not decent in any per-
son publicly or expressly to solicit or seek
connexion with a woman under Edit ; but
it matters not if this be done in an indirect
and ambiguous manner : yet they should not
pass any secret promise of marriage to each
other, this being forbidden in the Koran. —
The ambiguous mode of proposal above men-
tioned is described by Ebn Abbas to be, that
the man in the woman's presence may de-
clare his wish to marry, in general terms
without any particular application.
Rules for the behaviour of women during
Edit, — IT is not not lawful for a woman under
divorce to go abroad, either in the night or
day, whether the divorce be reversible or
irreversible, because the word of GOD in the
Koran forbids them from appearing abroad :
but a widow is at liberty to go forth during
the whole day, and for a short eason of the
night also ; yet she must not pass the night
anywhere but in her own apartments. The
reason of this indulgence is that as a widow
has no provision from her husband's pro-
perty, it may be necessary that she should go
forth to seek for a subsistence, and it may
sometimes happen that she is detained abroad
a considerable time, perhaps till after night-
fall, whence the extension of the liberty to a
part of the night; but it is otherwise with
a woman under divorce, as she is entitled
[during Edit] to a subsistence from the hus-
band. Yet if a woman were to enter into
an engagement of Khoola with her husband,
making the consideration for Khoola to con-
sist of her subsistence during her Edit, some
say that she is at liberty to go during the
day, while others maintain that she has no
liberty of going forth whatever, as the loss
of alimony during Edit is a consequence of
her own voluntary act, wherefore t he prohi -
bition, which is right of the law, still con-
tinues in force.
IT is incumbent upon a woman under Edit
that she observe and accomplish the same in
the place where she was resident at the period
of divorce taking place, or of the husband's
decease, whether that be her own accustomed
dwelling, or a house where she may be upon
a visit (that of her parents, for instance),
because this is so ordered in the Koran ; and
it also appears in the traditionary precepts
of the Prophet that he said to a woman
whose husband was slain, ''stay in your own
house until your EDIT be a accomplished.
A widow may remove from her husband's
house, if inconveniently situated there.— Iv the
apartment allotted to a widow, in the house
of her deceased husband, be not sufficiently
spacious for her accommodation, and it
should happen that the heirs of the defunct
exclude her from the other parts of the
house, it is then lawful for her to remove
elsewhere, because she has here an excuse,
and any good pretext suffices in all matters
appertaining to the spiritual law, of which
description is Edit ; the case is therefore the
same here as where the woman has reason to
fear thieves in her own house, or where
there is an apprehension of its falling, or
where she holds it by hire, and is unable to
pay the rent : all which circumstances are a
sufficient case of removal as well as in the
present case.
A wife under irreversible divorce must b*
accommodated with a separate apartment—
WHERE a husbaifd and wife are separated by
irreversible or triplicate divorce, it is requi-
site that there be a curtain or partition
between them ; and there is no objection to
their continuing to reside in the same house,
provided this be attended to, as the husband
has himself declared her to be prohibited to
him : but if he be a dissolute person*, one
who has no command of his passions, and of
134
DIVORCE.
[VOL. I.
whom it may be apprehended that he will
commit with her that which is unlawful, it
is in this case expedient that she remove to
another house (since there it evidently a
sufficient excuse), and that she continue there
until the accomplishment of her Edit ; it is
better, however, that the dissolute husband
leave her in his house, and remove to
another himself . —It is laudable in the par-
ties, whether the husband be dissolute or
otherwise, to engage a female friend to re-
side in the house with them, who may be
able to prevent any improper connexion. —
Ifthedweling house be so small as not to
admit of their residing in it under these pre-
cautions, it i» then necessary that the w.fe
remove elsewhere ; but it is better that ihe
husband remove, and leave her to reside in
the house. All this proceeds upon a suppo-
sition of the husband's having no more than
one house.
Rule respecting a wife divorced upon a
journey. — IF a woman accompany her 7hui
band upon a journey, or on a pilgrimage to
Mecca, and he give her three divorces upon
the way, or die, leaving her in an uninhabited
place, she must return to her own city, pro-
vided the distance be within three days'
journey, because this is not to be considered
as going abroad, but rather as a cosequence
of her having before gone abroad ; but if the
distance exceed three days' journey, she is
then at liberty cither to return home, or to
proceed upon the pilgrimage, whether her
guardian be with her or not. — The compiler
of this work observes that this is only where
she is left within three days' journey from
Mecca, where her stay would be more dan-
gerous than her proceeding ; but her return
to her own city is preferable, in order
that she may there accomplish her Edit in
the house of her husband. — But if, in the
case under consideration, the divorce or
death occur in a city, or other inhabited
place, tht woman must not go forth from
that place until her Edit be accomplished,
after which she may leave it, provided she be
accompanied by any male relation within the
prohibited degrees. — What is here advanced
is the doctrine of Haneefa. — The two dis-
ciples say that, if the woman be accompanied
by a relation within the prohibited degrees,
she may leave the place before her Edit be
past ; for they argue that she ought to be
allowed to return home, in order that she
may relieve herself from the disagreeable
circumstance attending her residence in a
strange place, and also from the derangement
and trouble of a journey, because these are
sufficient pretexts, and the impropriety of
her travelling is removed ^>y the circum-
stance of her relation accompanying her —
To this Haneefa replies that Edit affords a
stronger reason against removal than even
the want of a relation's protection, as a
woman may lawfully go to any distance
within a day's journey, without being accom-
panied by a relation, whereas this is not
lawful for a woman under Edit : and where
it is unlawful for a w«man to go to any
greater distance, unaccompanied by a rela-
tion, it is for one under Edit, a fortiori.
CHAPTER XIII.
OP THE ESTABLISHMENT OF PARENTAGE.
A child born after six months from the
date of a marriage upon which it suspended
a conditional divorce, is the lawful offspring
of such marriage. — IF a man matte a declara-
tion, saying, ''if I marry such a woman she
is divorced/1 and he afterwards marry her,
and she produce a child after six months
from the day of the marriage,* the parentage
of the child is established in him, and the
dower is incumbent upon him ; the former is
established, because the wife is in this case
considered as a partner of his bed at the
period of conception, as having brought forth
a child at the expiration of six complete
months from the date of the marriage, a
time considerably posterior to the divorce,
since that takes place immediately after the
marriage, wherefore the conception must Oe
considered as having take i place prior to the
divorce, that is, within the marriage.
OBJECTION. — It is not to be imagined that
conception should take place at the time of
marriage, as it is a consequence of the carnal
act, which happens posterior to it ; how
therefore, can it be established that the con-
ception took place before divorce, since the
latter occurs upon the instant of the marriage?
REPLY. — Conception may be imagined upon
the instant of the marriage, as it is possible
that the man may marry the woman whilst in
the commission of the carnal act, and conse-
quently, that marriage and conception may
have taken place at the same instance . and
as genealogy is a matter, the establishment of
which is of great moment, this supposition
has therefore been adopted : and the dower
is incumbent, because the descent of the
child being established in him, he is vir-
tually held to have cohabited with his wife ;
and it is due on account of consummation.
The parentage of a child born two years
after reversible divorce is established in the
divorce. — IF a man repudiate his wife by
a divorce reversible, and she bring forth a
child at the end of two years, or more, from
the time of the divorce, the parentage of the
child is established in him, and the divorce
is reversed, provided she had not before
declared the accomplishment of her Edit,
because it is possible that her pregnancy
may have taken place during Edit, as the
Tohar (or term of purity) of some women
* This means any time between six months
and two years from the date of the marriage
as the former of these is held to be the
shortest, and the latter the longest possible
term of pregnancy.
BOOK IV.— CHAP. XIII.
DIVORCE.
135
is much longer than that of others, which
circumstance may have protracted its con*
tinuance : but if she be delivered of a child
within less than two years from the
divorce, she becomes completely separated
from her husband, on account of the com-
pletion of her Edit by delivery ; and in this
case also the parentage of the child is
established in the husband, because it is as
possible that the conception may have taken
place previous to divorce (that is, within the
marriage), as it is that it may have taken
place after divorce (that is, within the Edit) :
but yet reversal is not established, because,
as it is possible that conception took place
after divorce, so it is also possible that it took
place before divorce : wherefore reversal can-
not be established, on account of the doubt
which exists on this point : but where the
woman is not delivered until after two years,
reversal is established, as the conception is
posterior to divorce, and must be attributed
to the husband, since no charge of adultery
has been advanced against the wife, where-
fore it is evident that he has had connexion
with her during Edit, a circumstance by
which reversal is established.
And so also of the child born within two
years after triplicate or irreversible divorce.
—I? a man repudiate his wife either by three
divorces, or by an irreversible divorce, and
she be delivered of a child within less than
two years from the period of the divorce, the
parentage is established in him, as it is possi-
ble that the pregnancy may have existed at
that time ; and the right of cohabitation Hoes
not positively appear to have been dissolved
previous to pregnancy, whence the parentage
is established in this manner for the sake of
caution. — But if the delivery were not to take
place until after the expiration of two years
from the period of separation, the parentage
of the child is not established, as pregnancy
in that case evidently appears to have taken
place posterior to divorce, and consequently
the child cannot be supposed to be begotten
by the man in question, since to him carnal
connexion with the woman is unlawful : yet
if he claim the child as his own, the parentage
is established in him, as he here takes it
1 upon himself, and it may be accounted for
by supposing him to have had connexion with
the woman, erroneously, during her Edit.
And so likewise of a child born of a wife
under age within nine months after either
irreversible or reversible divorce.— IT a man
repudiate, by an irreversible divorce, a wife
who is under the age of puberty, but yet
•uch an one as may admit of carnal con-
nexion, and she bring forth a child after the
expiration of nine months from the time
of divorce, the parentage of the child is
not established in him ; but if the delivery
uru^ leS th?n nine months, it is
established.— This is according to Haneefa
and Mohammed,— Aboo Yoosaf says that
the Parentage is established in the man,
although the child, should not be born within
less than two years from the period of divorce,
because she was under Edit, and it is possible
that the pregnancy may have existed at the
time of the divorce, and she not have declared
the accomplishment of her Edit, wherefore
this infant wife is the same as a full-grown
woman. — The agrument of Haneefa and
Mohammed is that the Edit, of the wife is
in the case appointed to be counted by
months, therefore it is accomplished at the
expiration of three months, by the rule of
the law. independent of any declaration on
her part ; — if, therefore, she be delivered of
a child within less than six months from the
end of that term which completes her Edit,
the parentage of the child is established ;
but, if she bring not forth until after that
time, the parentage is not established, as it
anpears to have been begotten at the time
when she was not a partner of the husband's
bed, for the case treats of a girl irreversibly
divorced under puberty, and consequently
not subject to the menstrual discharge, and
whose Edit is therfore completed by the
lapse of time, namely, three months, where-
fore it is not possible that pregnancy should
have existed at the time of divorce ; and the
right of cohabitation appears to have un-
doubtedly expired before pregnancy, so that
the descent cannot be established. And if the
wife under these circumstances be repudiated
by a reversible divorce, the rule is the same
(with Haneefa and Mohammed) as before re-
cited. Aboo Yoosaf savs that the parentage
of the child is established in the husband if
it be born within twenty -seven months from
the time of divorce, as it must be allowed
that he may have had connexion with her ajt
the latter end of the term of three months,
which constitutes her Edit, and she be deli-
vered within the longest term of pregnancy
admitted by the law, namely two years. But
if the infant wife declare her pregnancy to
have taken place during Edit, the rule is
then the same as with respect to grown,
women i that is to say, the parentage of the
ch'ld is established in the husband, as her
puberty is proved by her own affirmation.
The parentage of a child born of a widow
within two years after the decease of her
husband is established in htm.— IP a widow
bring forth a child, the parentage is estab-
lished in her husband, provided the delivery
happen within two years from the time of his
decease.— -Ziffer says that if she be not de-
livered until after six months from the time
of the completion of the Edit of widowhood,
in this case the parentage cannot be estab-
lished, because her Edit, upon the lapse of
four months and ten days, is completed by
the ordinance of the law, as the Edit is, by
the law, fixed to that time, and is therefore
the same as if she were to declare the accom-
plishment of her Edit, as in the case of the
infant before mentioned. — Our doctors, on
the other hand, say that the Edit of the
woman in question is not absolutely fixed
at four months and ten days, but has also
another mode of completion, namely, delivery
since marriage with an adult woman is con.
136
DIVORCE
[VOL. I.
sidered as a cause of pregnancy ; contrary to
the case of a girl under puberty, because the
natural state of such an one is an incapacity
to bear children, as an infant is not a subjec
of impregnation until she attain maturity
and concerning the maturity of the in fan
there is a doubt.
And so also of a child bnn within si
months after the wife declaring her Edit to
have expired. — IF a woman under Edit de
clare the same to be accomplished, and be
afterwards delivered of a child within less
than six months from the time of her declara
tion, the parentage of the child is established
as it is evident that her declaration was un-
founded, and is consequently null : but ii
she be delivered after six months from the
time of her declaration, the parentage is not
established, because nothing appears in this
case to annul her declaration, as it is possible
that her pregnancy may have occurred aftei
that.
Whatever be the occasion of the Edit. —
THIS reasoning applies to every woman
under Edit, whatever the occasion may be
whether divorce reversible or irreversible, or
the decease of her husband ; or of whatevei
description or nature, whether it be counted
by months, or by the return of the courses.
The birth must be proved by evidence —
WHEN a wonvm under Edit is delivered of
a child, the parentage is not established,
(according to Haneefa), unless the birth be
proved by the evidence of two male witnesses
or of one male and two females. — This is a rule
where there is no apparent pregnancy, or
where the same is not acknowledged by the
husband ; but if the pregnancy be apparent,
or the husband have acknowledged it, the
parentage is established independent of the
testimony of witness. The two disciples
maintain that, in all cases, the .parentage
is established upon the testimony of one
woman, — because the husband's right of co-
habitation still continues during Edit, and
it is this right which occasions the fixing of
the parentage of a child upon the husband,
wherefore nothing more is required that
some person prove the birth, and the identity,
by testifying "This is the child of which
such a woman was delivered," — and thus
much may be sufficiently proved by the testi-
mony of a single woman, in the same manner
as it is during marriage, in a case where
the husband disputes the child's identity. —
Haneefa, on the other hand, argues that the
Edit is accomplished by the woman's decla-
ration of delivery ; but the mere completion
of Edit is not proof, and the descent still
remains to be first established, for which
reasotf%4s that complete proof (that is, the
testintijBv of two men, or of one man and two
wornfcjKs made a condition ; but it would
J:>e oth<$$/ise if the pregnancy were apparent,
or acknowledged by the husband, as in this
tasf the parentage is established prior to the
birth : and the*child's identity is there ascer-
tained by the identity -of one woman, — the
e! for instance.
The parentage of child born of a widov,
when uncontr averted, is" established, in her
deceased husband, independent, of evidence* —
IF a man under Edit from the death of her
husband bring forth a child and declare it
to be his, and the heirs confirm her assertion,
though no person hear evidence to the birth,
the child is held to be descended of the hus-
band, according to all our doctors.* This,
with respect to inheritance, is evident, as
inheritance is a sole right of the heirs, * and
consequently their testimony or acknowledg-
ment is to be credited in every matter which
affects it. — -A question, however, may arise in
the case whether the parentage of the child
be by such testimony established with respect
to others than those heirs : and upon this the
learned in the law observe, that if those heirs
be persons of a description capable of being
admitted as witness, the parentage is estab-
lished with respect to all others as well as
themselves, because their testimony amounts
to proof, for which reason some doctors re-
quire that their confirmation of the woman's
assertion be delivered in the form of evidence,
but the necessity of this is denied by others,
because the establishment of parentage, with
respect to the rest of mankind, is a necessary
consequence of its establishment with respect
to the immediate heirs of the deceased by
their confirmation; and where a matter^ is
once fully established upon any particular
ground, no necessity exists for any further
conditions with respect to its establishment. ,
A child born within less than six months
after marriage is not the offspring of that
marriage ; but if after six months it is so,
independent of the husband's acknowledg-
ment ; or upon the evidence of one witness
the birth where he denies it : and Lean is
incumbent, if he persist in his denial ; and
the wife's testimony is to be credited in respect
to the date of the marriage. — If a man marry
a womah, and she bring forth a child within
tfess than six months after the marriage, the
safrentage of the child is not established in
:he husband, as pregnancy in that case ap-
pears to have existed previous to the mar-
riage, and consequently cannot be derived
Tom him ; but if she be delivered after six
months, it is established, whether he acknow-
edge it or not, because then the marriage
appears to have existed at the time of im-
pregnation, and the term of pregnancy is
complete. If, moreover, the husband deny
the birth, it may be proved by the evidence
of one woman, after which the parentage is
established in virtue of the marriage ; and
such being the case, if he persist in denying
:he child, imprecation becomes incumbent,
DC cause his denial then amounts to an im-
putation on his wife's chastity, since it im-
plies a charge of adultery against her. And
f, upon the birth of a child, a dispute were
o arise between the husband and wife, he
•This means, at whatever time the child
! born, after the husband's decease.
BooKlV,— CHAP. XIII.]
DIVORCE
137
asserting that he had married her only four i
months before , and she maintaining that
they had been married six months, the de- ;
claration of the wife is to be credited, and '
the (child belongs to the husband, because j
apparent circumstances testify for the wife,
as it appears that her pregnancy has been a
consequence of marriage and not of whore-
dom*— A question has arisen among our
doctors whether the woman's assertion, is to
be credited without being continued by oath?
The two disciples hold that it requires her
oath ; but Haneefa maintains the contrary
opinion.
Divorce suspended upon the birth of a child
cannot take place on the evidence of one
woman to , the birth.— IF a man suspend
divorce upon the circumstance of his wife's
bearing a child, by saying to her, "upon
being delivered of this child you are di-
vorced/'— and a woman afterwards give
testimony to her being delivered, yet divorce
does not take place according to Haneefa.
The two disciples maintain that divorce takes
place, because the evidence of a single woman
suffices in ail such matters as are improper
to be held by men; and the evidence of
one woman to a birth being admitted, it is
also to be admitted with respect to whatever
proceeds from the birth, which in the pre-
sent instance is divorce. — The argument of
Haneefa is that the woman, in this case,
stands as a plaintiff for penalty against her
husband, and he appears as the defendant,
wherefore her claim cannot be established
but by complete proof. — The foundation of
this is that the evidence of a woman is
admitted with respect to child-birth from
necessity only, and has therefore no effect
with respect to divorce, since that is a matter
altogether distinct from child-birth, and un-
connected with it, although such connection
appear to exist from the peculiar circum-
stances of the present case. But if the
husband acknowledge the pregnancy, divorce
takes place upon the woman independent pi
the evidence of others, according to Haneefa.
—The two disciples hold that in this case also
the testimony of the midwife is necessary,
because proof is indispensable to the establish-
ment of a Da wee Hins, or claim of penalty,
and the evidence of the midwife amounts to
proof, according to what was before said. —
The arguments of Haneefa are twofold ; —
FIRST, the acknowledgment of pregnancy
amounts to an acknowlegment of that which
pregnancy induces* and extends thereto, and
that thing is child-birth ; SECONDLY, the
husband, in acknowledging the pregnancy,
declares his wife a trustee, as the child is a
deposit in her possession, and consequently
her word is to be credited in the surrender
of the deposit, as much as that of any other
trustee.
The term of pregnancy is from six months
to two years.— THE longest term of preg-
nancy is two years, because of the declaration
of Aysha, "the child does not remain in the
mother's womb beyond two years :" and the
shortest term is six months, because the
sacred text says, "THE WHOLE TERM" OF
PREGNANCY AND WEANING is THIRTY
MONTHS ;" and Ibn Abbas has Said that
the term of suckling is two years, wherefore
six months remain for the pregnancy. —
Shafei has said that the longest term of
pregnancy extends to four years ; but the
text here quoted, and the opinion of Ibn
Abbas as above, testify against him.— It is
probable that Shafei may have delivered
this opinion upon hearsay, as this is a
matter which does not admit of reasoning.
Case of a man divorcing a wife who is a
slave, and then purchasing her. — IF a* man
marry a female slave, and afterwards divorce
her, and then put chase her, and she be
delivered of a child within less than six
months from the day of purchase, the
parentage is established in him ; but if she
be delivered after six months, the parentage
is not established ; because, in the first
instance, the child is considered as born of a
woman under Edit, conception appearing to
have taken place before purchase ; but in
the second instance, it is regarded as slave-
born, as the length of the term of pregnancy
here admits of conception being referred to
a time subsequent to purchase ; and the
child thus appearing to be born (not of a
wife, but) of a slave, his acknowledgment
requisite to the establishment of its parent-
age.— What is not advanced proceeds upon
the supposition of the slave being repudiated
by a single divorce, reversible or irreversible,
or by Khoola : but if she be repudiated by
two divorces, the parentage of the child is
established, if it be born within two years
from the date of the divorce, because in this
case she is rendered uulawful to her husband
by the rigorous prohibition, whence the
pregnancy can be referred only to a time
previous to divorce, since, under such a
circumstance she is not rendered lawful to
the man by his subsequent purchase of her.
Miscellaneous cases — IF a man say to his
female slave, "if there be a child in your
womb it is mine/' upon a woman afterwards
bearing testimony to the birth, the slave
becomes Am-Walid to that man, because
here all that is requisite is to prove the
child's indentity, by showing that "such a
woman has been delivered of such a child,"
— and this is sufficiently ascertained by the
testimony of the midwife, according to all
our doctors,
IP a man say of a boy, "this is my son/'
and afterwards die, and the mother come
declaring herself to be the wife of the
deceased, she must be considered as such,
and the boy as his child, and they both
inherit of him. It is recorded in the Na-
wadir that this rule proceeds upon a favour-
able construction of the law, for analogy
requires that the woman should not inherit,
since descent is established not only in
virtue of a valid marriage, but also of an
,138
DIVORCE.
(VOL. I
invalid marriage, or of erroneous carnal
connexion, or of possession by right of
property, and therefore the main's declara-
tion that ''this is his son" does not amount
to an acknowledgment of his having mar-
rie,d the mother : but the reason for a more
favourable construction of the law here is,
that the case supposes the woman to be one
whose freedom and materal right in the
child are matters of public notoriety, and
the validity of a marriage is ascertained
by circumstances. But if the woman be
not known to be free, and the heirs of the
husband maintain that she is only an Am-
Walid, she is not entitled to any inherit-
ance, because the mere appearance of freedom
(supposing the case to occur in a Mussulman
territory), although it defend the party
from slavery, is not sufficient to establish a
claim of inheritance.
CHAPTER XIV.
OF HIZANIT, OR THE CARE OF INFANT
CHILDREN
In case of separation, the care of the infant
children belongs to the wife.— IF a separation
take place between a husband and wife, who
are possessed of an infant child, the right
of nursing and keeping it rests with the
mother, because it is recorded that a woman
once applied to the Prophet; saying "O
Prophet of GOD ! this is my son, the fruit
of my womb, cherished in my bosom and
suckled at my breast, and his father is de-
sirous of taking him away from me into his
own care ;" — to which the Prophet replied,
"thou hast a right in the child prior to that
of thy husband, so long as thou dost not
marry with a stranger :M — moreover, a mother
is naturally not only more tender, but also
better qualified to cherish a child during in-
fancy, so that committing the care to her is
of advantage to the child ; and Siddeek
alluded to this, when he addressed Omar on
a similar occasion, saying, "the spittle of the
mother is better for thy child than honey, O
OMAR V' which was said at a time when
separation had taken place between Omar
and his wife, the mother of Assim, the latter
being then an infant at the breast, and Omar
desirous of taking him from the mother ; and
these words were spoken in the presence of
many of the companions, none of whom
contradicted him : — but the Nifka or sub-
sistence of the child is incumbent upon the
father, as shall be hereafter explained. It
Is to be observed, however, that if the
mother refuse to keep the child, there is
no constraint upon her, as a variety of
causes may operate to render her incapable
of the charge.
Order of precedence in Hiztnit, after the
mother. — IF the mother of an infant die,
the right of Hizanit (or infant education)
rests with the maternal grandmother, in pre-
ference to the paternal, because it originate*
in, and is derived from, the mother ; but if
she be not living, the paternal grandmother
has then a right prior to any oth-r relation
she being as one of the child's mothers (whence
it is that she is entitled to a sixth of the
effects of a child of her son, which is -the
mother's share*) ; and she must, moreover, be
considered as having a more tender interest
in her own offspring than any collateral
relation. If there be no grandmother living,
in this case a sister is preferable to either
a maternal or paternal aunt, as she is the
daughter of the father and mother, or of one
of them, whence it is that phe would take
place of the aunts in inheritance,—- (according
to one tradition, the maternal aunt is pre-
ferable to a half-sister by the father side, the
Prophet having said, "the maternal aunt is
as a mother"). — A full sister, also, has pre-
ference to an half-sister, maternal or paternal ;
and a maternal sister to a paternal sister ;
because the right of Hizanit is derived to
them through the mother. The maternal aunt
has preference to the paternal, because pre-
cedence is given, in this point, to the mater-
nal relation. The same distinction 'also' pre-
vails among the aunt as among the sisters ;
— that is, she who is doubly related has a
preference to her who is singly related ; thus
the maternal aunt, who is full sister to the
mother precedes an half sister, maternal or
paternal : and, in the same manner, a mater-
nal sister precedes a paternal sister ; and so
also of the paternal aunts. If, however, any
of these women, having the right of Hizanit,
should marry a stranger, her right is thereby
annulled, an account of the tradition before
quoted, and also because, where the husband
is a stransrer. it is to be apprehended that he
may treat the child unkindly : where the
woman, therefore, who has charge of an
infant marries, it is neither advantageous
nor advisable that the infant remain with
her, unless the person she marries be a
relation, — as where the mother, for instance,
having charge, marries the child's paternal
uncle, or the maternal grandmother marries
the paternal grandfather, — because these
men, being as parents, it is to be expected
that they will behave with tenderness: —
and so also of any other relation within the
prohibited degrees, for the same reason.
ANY woman whose right of Hizanit is an*
nulled by her marrying a stranger recovers
the right by the dissolution of the marriage,
the objection to her exercise of it being
therebv removed.
fit defeat of the maternal, it rests with the
nearest paternal r elation : — IF there be no
woman to whom the right of Hizanit apper-
tains, and the men of the family dispute it,
in this case the nearest paternal relation has
the preference, he being the one to whom
the authority of guardian belongs (the de-
*This must mean, in case of the mother's
death.
BOOK IV.— CHAP. XIII.
DIVORCE.
139
grecs of paternal relationship are treated or
in their proper place): but it is to be ob-
served that the child must not be entrusted
to any relation beyond the prohibited degrees,
such as the Mawla or emancipator of a s^ave,
or the son of the paternal uncle, as in this
there may be apprehension of treachery.
Length of the term of Htzanit.— THE right
of Hizanit, with respect to a male child, ap-
pertains to the mother; grandmother, or so
forth, until he become independent of it him-
self, that is to say, become capable of shitt-
ing, eating, drinking, and performing the
other natural functions without assistance;
after which the charge devolves upon the
father, or next paternal relation entitled to
the office of guardian, because, when thus
far advanced, it then becomes necessary to
attend to his education in all branches of
useful and ornamental science, and to ini-
tiate him into a knowledge of men and man-
ners, to effect which the father or paternal
relations are best qualified— (Kasaf says that
the Hizanit, with respect to a boy. ceases at
the end of seven years, as in general a child
at that at?e is capable of performing all the
necessary offices for himseif, without assist-
ance).—But the right of Hizanit with respect
to a girl appertains to the mother, grand-
mother, and so forth, until the first appear-
ance of the menstrual discharge (that is to
say, until she attain the age of puberty),
because a girl has occasion to learn such
manners and accomplishments as are proper to
women, to the teaching of which the female
relations are most competent ; but after that
period the charge of her properly belongs to
the father, because a girl, after maturity,
requires some person to superintend her
conduct, and to this the father is most
completely qualified. It is recorded from
Mohammed that the care of a female child
devolves upon the father as soon as she
begins to feel the carnal appetite,** as she
then requires a superintendence over rur
conduct ; and it is universally admitted Uhat
the right of Hizanit of girls is restricted to
that period, with respect to all the female
relations except the mother and grandmother,
It is written in the Jama Sagheer, that the
right of Hizanit, with any except the mother
or grandmother, discontinues upon the girl
becoming capable of performing natural
offices without assistance, because no other
is entitled to require any service of her
(whence it is that they cannot hire her as a
servant to others), and such being the case
the end (namely, the girl's education) cannot
be obtained: out it is otherwise with the
mother or grandmother, as they are invested
with a legal right to require her services.
A slave has the right upon obtaining her
freedom. — IF a man contract his female slave
*Thls is supposed by the Mussulmans to
commence some time before the appearance
of the menstrual discharge, at between
eleven and twelve years of age.
or Am-Walid, in marriage to any person, and
she bear a child to her husband, ana the
master afterwards emancipate her, she then
becomes (with respect to the child) as a free
woman ; that is, upon becoming free she
obtains her right of Hizanit which had not
existed while she was a slave, because her
service, as a slave, would necessarily inter-
fere with the proper discharge of the duties
of Hizanit.
And also an infidel mother the wife of a
Mussulman. — A ZIIKMEEA, or female infidel
subject, married to a Mussulman, is entitled
to the Hizanit of her child, although he b«
a Mussulman like the father ; but this only
so long as the child is incapable of forming
any judgment with respect to religion, and
whilst there is no apprehension of his im-
bibing an attachment to infidelity ; but when
this is the case, he must be taken from the
mother, because, although it be for the child's
advantage to be under her care until that
period, his remaining longer with her might
prove injurious.
Children after the term of llizanit, re-
main sol ely under the care of the father.—* A
BOY or girl, having passed the period of
Hizanit have no option to be with one
parent in preference to the other, but must
necessarily thenceforth remain in charge of
the father. Shafei maintains that they have
an option to remain with either parent, be-
cause of a tradition of the Prophet to this
effect. The argument of our doctors is, that
young persons, from want of judgment, will
naturally wish to stay with the parenfc who
treats them with most indulgence, and lays
them under least restraint, wherefore giving
them a choice in this matter would not be
tenderness, but rather the reverse, as being
contrary to their true interest ; and it ap-
pears in the Nakl Saheeh that the companions
withheld this option from children. With
respect to the tradition cited by Shafei, it
may be observed that, in the instance there
alluded to, where the Prophet gave a boy his
choice, h* first prayed to GOD to direct him
therein, and the boy then chose, under the
influence of the Prophet's prayer.
Section
A mother cannot remove with her child to
a strange place,— IF a divorced woman be
desirous of removing with her child out of
a city, she is not at liberty to do it ; but "yet
if she remove with her child out of a city,
and go to her native place, where the con-
tract of her marriage, was executed, in this
case her removal is lawful, because the father
is considered as having also undertaken to
reside in that place, both in the eye of the
law. and according to common usage, for the
Prophet has said, "Whoever marries a
woman of any city is thereby rendered a
DENIZEN of that city;" and hence it >s,
that if an alien woman were to come into the
Mussulman territory, and there to marry- an
infidel subject, she also becomes an infidel
subject; it is to observed, however, that
140
DIVORCE.
[VOL. I.
this rule does not apply to an alien' man,
that is to say, if an alien man were to come
into the Mussulman territory, and there to
marry a female subject, he is not thereby
rendered a subject ; for if he choose, he may
divorce this wife and return to his own
country.
I* a divorced woman be desirous of remov-
ing with her child to a place which is not
the place of her nativity, but in which her
marriage contract was executed, she is not
at liberty to do it. This demonstrated by
Kadooree in his compendium, and also ac-
cords with what is related in the Mabioot.
The Jama Sagheer says that she may take
her child thither, because where a marriage
contract is executed in any place, it occasions
all the ordinances thereof to exist and have
force in that place, in the same manner as
sale amounts to a delivery of the article sold
in the place of sale ; and a woman's right to
the care of her children is one of the ordi-
nances of marriage, wherefore she is entitled
to keep her child in the place where she was
married, although she be not a native of
that place. The principle upon which the
Mabsoot proceeds in this case is, that the
execution of a contract of marriage in a
place merely of casual residence (such as the
stage of a journey, does not constitute it a
home, according to general usage, and this
is the better opinion. In short, to the pro-
priety of the woman carrying her child from
one place to another, two points are essen-
tially requisite one. that she be a native of
the place to which she goes ; and the other,
that her marriage contract has been there
executed ; this, however, means only where
the places are considerably distant ; but if
they be so near that the father may go to see
his child and return the same night, there is
no objection to the wife going to the other
place with the child, and there remaining ;
and this, whatever be the size or degree of
the places, whether cities or villages ; nor is
there any objection to her removing from
the village to the city or chief town of a dis-
trict, as this is in no respect injurious to the
father, and is advantageous to the child,
since he will thereby become known and ac-
quainted with the people of the place ; but
the reverse [that is, her removal from the
city to a village], would be injurious to the
child, as he would thereby be liable to ac-
quire the low manners and mean sentiments
of villagers ; wherefore a woman is not at
liberty to carry her child from a city to a
village,*
CHAPTER XV.
OF NIFKA, OR MAINTENANCE
Definition of the t<<rm. — NIFKA, in the
language of the law, signifies all those things
whic*n are necessary to the support of life,
such as food, clothes, and lodging ; many con-
fine it solelv to food.
Section I
Of the Nifka of the Wife.
The subsistence of wife is incumbent upon
her husband. — WHEN a woman surrenders
herself into the custody of her husband, it is
incumbent upon him thenceforth to supply
her with food, clothing, and lodging, whether
she be a Mussulman or an infidel, because
such is the precept both in the Koran and
in the traditions ; and also, because main-
tenance is a recompense for the matrimonial
restraint : whence it is that where a person
is in custody of another on account of any
demand, or so forth, his subsistence is in-
cumbent upon that other, — as when a public
magistrate, for instance, is imprisoned on
account of any mal-administration in his
office, in which case his subsistance must
be provided from the public treasury ; and as
the authorities upon which this proceeds
make no distinctions between a Mussulman
and an infidel, the rule holds the same with
respect to either in the present case.
In proportion to the rank and circumstances
of the parties. — IN adjusting the obligation of
the Nifka, or maintenance of a wife, regard is
to be had to the rank and condition both of her
and her husband : thus if the parties be both
wealthy, he must support her in an opulent
manner : if they be both poor, he is required
only to provide for her accordingly : and if
he be rich, and she poor, he is to afford her
a moderate subsistence, such as is below the
former and above the latter. —The compiler
of this work says that this is the opinion
adopted by Khasaf ; and that decrees pass
accordingly. Koorokhee is of opinion that
the rank and condition of the husband alone
is to be regarded (and such also is the doc-
trine of Shafei), because the sacred text says,
"LET HIM SUPPORT HER ACCORDING TO HIS
ABILITY." — The ground of Khasaf s opinion
is a tradition respecting the Prophet, who,
on a woman applying to him for his judg-
ment upon this point, said to her, "take
from the property of your husband what-
ever may suffice for the subsistence of your-
self and your child in the customary way ;'*
for which it appears that the circumstances
of the woman are to be regarded as well as
those of the man, for maintenance is incum-
bent only so far as may suffice for the pur-
pose intended by it, and as a womam in mean
circumstances has no occasion for the same
subsistence as one who is accustomed to live
in affluence, such is (with respect to her)
unnecessary ; and as to the text above
quoted by Shafei, it means no more than
that if the woman be in affluent circum-
stances, and her husband otherwise, he shall
suppose her according to his ability, and
the remainder, or difference, shall be a debt
upon him. Ity the expression '-customary
way," in the tradition quoted by Shafei, is
to be understood a middling or moderate
way, that is, a medium between the circum-
stances of the wife and those of the hus-
band where the former happens to be rich
BOOK IV.— CHAP. XV ]
DIVORCE.
141
and the latter poor ; and as the Prophet in
his decision left this to the judgment of
the parties themselves, the proportion is not
specifically determined by the law. — ShJti
has so determined it, saying that the Nifka
or maintenance incumbent upon a husband
in behalf of his wife, if he be opulent, is two
Mids, or about one thousand Dirms* an-
nually,—if he be poor, one Mid : and if
in middling circumstances, one and a half :
this, however, is not admitted, because a
thing declared to be incumbent "so far as
may suffice" cannot be legally fixed at any
specific rate, as the proportion must neces-
sarily vary according to circumstances.
And this, although she withhold herself
on account of her dower. — IF a woman re-
fuse to surrender herself to her husband, on
account of her dower (that is, on account of
its not hav;ng been paid to her), her main-
tenance does not drop, but is incumbent
upon the husband, although she be not yet
within his custody, since her refusal is only
in pursuance of her right, and consequently
the object ;on to the matrimonial custody
originates with the husband.
But riot if she be refractory. — IF a wife be
disobedient or refractory, and go abroad with-
out her husband's consent, she is not entitled
to any support from him, until she return
and make submission, because the rejection
of the matrimonial restraint in this instance
originates with her ; but when she returns
home, she is then subject to it, for which rea-
son she again becomes entitled to her support
as before. It is otherwise where a woman,
residing in the house of her husband, refuses
to admit him to the conjugal embrace, as she is
entitled to maintenance, notwithstanding her
opposition, because being then in his power,
he may, if he please, enjoy her by force.
Or an infant incapable of generation. — IF
a man's wife be so young as to be incapable
of generation, her maintenance is not in-
cumbent upon him, because although she
should be within his custody, yet as an
obstacle exists in her to the carnal embrace,
this is not the custody which entitles to
maintenance, that being described "custody,
for the purpose of enjoyment/1 which does
not apply to the case of one incapable of the
act : — contrary to the case of the sick woman,
to whom maintenance is due, although she
be incapable, as shall be hereafter demon-
strated.— Shafei says that maintenance is due
to an infant wife, because he holds it to be a
return for the matrimonial propriety , in the
same manner at it is with respect to a slave
for the propriety in his personal service. To
this however, our doctors reply that the
dower is the return for the matrimonial pro-
priety, and one thing does not legally admit
of two returns ; wherefore, in the case of an
infant wife, the dower is due but not main-
tenance.
But it is due to an adult wife from an
infant husband — BUT if the husband be an
infant incapable of generation, and the wife
an adult, she is entitled to her maintenance
at his expense, because, in this case delivery
of the person has been performed on her
part, and the obstacle to the matrimonial
enjoyment exists on the part of the husband,
It is not due where the wife is impri-
soned for debt.— IF a woman be imprisoned
for debt, her husband is not required to sup-
port her, because the objection to the matri-
monial custody does not in this case originate
with him, whether her imprisonment be
owing to herself (as in a case of wilful delay
and contumacy) or otherwise (as where she
is poor and unable to discharge the debt).
Or forcibly carried off. — AND, in the same
manner, if a woman be forcibly seized and
carried off by any person, she has no claim
to maintenance from her husband ; and so
also, if a woman go upon a pilgrimage, under
charge of a relation within the prohibited
degrees, — because she is not then in custody
of her husband, and her not being so is occa-
sioned by her own voluntary act.
Or goes upon a pilgrimage. — IT is recorded
from Aboo Yoosaf that a woman upon a pil-
grimage is entitled to a maintenance from
her husband, as her undertaking the indispen-
sable pilgrimage* Is a sufficient pretext for her
leaving him ; but he allows her only a Nifka-
Hizr, or support as in a settled place ; and
not a Nifka-Sifr, or support as upon a jour-
ney ; as the former only incumbent upon
the husband, not the latter
Unless she be accompanied by the husband.
—BuT if the husband accompany his wife
upon her pilgrimage, her maintenance is then
incumbent upon him according to all our
doctors, because in this case she continues m
his custody ; but she is entitled to Nifka-Hizr
only, not to a Nifka-Sifr, as he is not the OcCa-
sion of her travelling, whence it is that he is
not obliged to furnish her with a conveyance.
It continues during her sickness.--!? a
woman fall sick in her husband's house,
she is still entitled to a maintenance.
This is upon a principle of benevolence, as
analogy would suggest that she is not entitled
to maintenance where she falls sick so far as
to be incapable of admitting her husband to
the conjugal embrace, since in this case she
cannot be deemed in custody for the purpose
of enjoyment ; but the reason for a more
favourable construction of the law in this
case is, that she still remains in custody, as
her husband may associate and indulge m
dalliance with her, and she may continue to
superinted his domestic concerns, and the
obstacle to carnal enjoyment is (like the men-
*Dirms have varied in their value at
different times, from twenty to twenty-five
passing current for a Deenar. The sum here
mentioned is from about eighteen to twenty -
two pounds sterling.
*Arab Hidj-Farz.— It U incumbent upon
all Moslamites to perform at least ?ne pil-
grimage to Mecca, and this one is reckoned
among the Firayez, or sacred ordinances,
whence the above epithet.
142
DIVORCE.
VOL. I.
strual discharge) an accidental occurrence. —
It is recorded from Aboo Yoosaf that if a
woman deliver herself into the custody of
her husband, and then fall sick, she is still
entitled to maintenance ; but if she fall sick
first, and then deliver herself to him, she has
no claim to maintenance until her recovery,
as the surrender of her person is not in this
case complete ; and the learned in the law
admit this to be a proper distinction.
A husband must maintain his wife's ser-
vants.—THE maintenance of the wife's ser-
vant* is incumbent upon her husband, as well
as that of the wife herself, provided he be in
opulent circumstances, because he is obliged
to provide his wife's maintenance, "so far as
may suffice" (as aforesaid), and it is not suffi-
cient, unless her servants also be supported,
they being essential to her case and comfort ;
but it is not absolutely incumbent upon him
to provide a maintenance for more than one
servant, according to Maneefa and Mo-
hammad. Aboo Yoosaf says he must pro-
vide maintenance for two servants, as one is
required for service within the house, and
the other out of doors — The arguments of
Haneefa and Mohammed on this point are
twofold : — FIRST, one servant may answer
both purposes, whence two are unnecessary ;
SECONDLY, if the husband were himself to
undertake all the services required by the
wife, it would suffice, and a servant would
be unnecessary ; and, in the same manner,
it suffices if he constitute any single servant
his substitute therein ; wherefore a second
servant is not requisite. The learned in the
law say that the rate of maintenance due
from an opulent busband to his wife's ser-
vants is the same as that due from a poor
husband to his wife, — namely, the lowest
that can be admitted as sufficient — Haneefa
says that a husband who is poor is not re-
quired to find maintenance for his wife's ser-
vants ; and this is an approved doctrine, as
it is to be supposed that the wife of a POT
man will serve herself. Mohammed holds
that it is due from a poor husband, in the
same manner as from one more opulent.
Jf the husband be poor, the magistrate
must empower the wife to raise subsistence
upon his credit.— If SL husband become poor,
to such a degree as to be unable to provide
his wife her maintenance, still they are not
to be separated on this account, but the
Kazee shall direct the woman to procure ne-
cessaries for herself upon her husband's
credit, the amount remaining a debt upon
him.— -Shafei says that they must be sepa-
rated, because whenever the husband be-
comes incapable of providingthis wife's main-
tenance, he cannot "retain her with hu-
manity" (as is required in the sacred writ-
ings), and such being the case, it behoves
him to divorce her ; and if he decline so to
do, the Kazee is then to effect the separation
«s his substitute, in the same manner as in
cases of emasculation or impotence : nay, the
necessity for this is more urgent in the pre-
sent instance than in either of those cases,
as the maintenance is indispensable. To
this our doctors reply that if a separation
take place the right of the husband is de-
stroyed in toto, which is a grievous injury
to him ; whereas, if the wife be desired to
procure maintenance for herself upon his
credit, his right is by this means preserved
with the smallest possible injury ; wherefore
they are not to be separated, but the wife
shall be directed to take up the articles ne-
cessary for her subsistence upon his credit,
as was already stated :— -but the wife is in
this case restricted in her expenses to a rate
which must be determined by the Kazee.
At a certain specified rate. — THE Kazee
cannot act as the substitute of the husband
j in effecting a separation here, as in cases of
emasculation or impotence, because property
in marriage is only a dependant, or second-
ary consideration, the primary object being
procreation, and that which is a dependant
merely cannot be put in competition with
the original intent, upon which principle it
is that the Kazee is empowered to effect a
separation in either of the other two in-
stances, as there the original intent is de-
feated ; but it is not so in the present case.
The advantage of the Kazee desiring the
woman to procure a maintenance upon her
husband's credit, and of his fixing the rate
thereof, is that she is thereby enabled to
make her husband responsible for the
amount ; for if she contract any debt with-
out this authority, the creditors claim lies
against her, and not against her husband.
To be varied according to any change in his
circumstances — IF the husband were in
indigent circumstances at the time of the
Kazee authoriziig the wife as aforesaid, and
he have consequently determined her main-
tenance at the rate of poverty, and the hus-
band afterwards become rich and she sue
for a proportionable addition to her main-
tenance, a, decree must be given in her
favpur, at- the rate of the maintenance differs
according to the poverty or opulence of the
husband.
Arrears of maintenance not due unless the
maintenance have been decreed by the Kazee
or the rate of it previously determined on be'
tween the parties. — IP a length of time should
elapse during which the wife has not re-
ceived any maintenance from her husband,
she is not entitled to demand any for that
time, except when the Kazee had before de-
termined and decreed it to her, or where she
had entered into a composition with the hus-
band respecting it, in either of which cases
she is to be decreed her maintenance for the
time past, because maintenance is an obliga-
tion in the manner of a gratuity,* as by a
gratuity is understood a thing due without
a return, and maintenance is of this descrip-
tion, it not being held (according to our
i doctors) to be as a return for the matrimonial
•Arab,Sillit. By this is to be here under-
stood a present or gratuity promised but not
yet paid.
fBooK IV.— CHAP. XV] DIVORCE.
propriety ; and the obligation of it is not
valid but through a decree of the Kazee,
like a gift, which does not convey a right to
possession but through seisin, which estab-
lishes possession : but a composition is of
equal effect with a decree of the Kazee, in
the present case, as the husband, by such
composition, makes himself responsible, and
his power over his own person is superior to
that of the magistrate — This reasoning does
not apply to the case of dower, as that is
considered to be a return for the use of the
wife's person.
Arrears of a decreed maintenance drop in
case of the death of either party. — IF the
Kazee decree a wife her maintenance, and a
length of time elapse without her receiving
any and the husband should die, her main-
tenance drops ; and the rule is the same if
she should die ; because maintenance is a
gratuity, respecting which the rule is that it
drops in consequence of death, like a gift,
which is annulled by the decease of either
the donor or donee before seisin being made
by the latter. —Shafei says that the^ mainr
tenance is .in all circumstances to be consi-
dered as a debt upon the husband, in confor-
mity with his tenet, that it is not a gratuity
but a return, wherefore it cannot drop like
demands of the former description. — This
was before replied to.
Advances of maintenance cannot be re-
claimed.— Ira man "give his wife one year's
maintenance in advance, and then die before
the expiration of the year, no claim lies
against the woman for restitution of any
part of it.— This is the doctrine of Haneefa
and Aboo Yoosaf — Mohammed says that she
is entitled only to the proportion due for the
term past, from beginning of the year
till the husband's decease, the remainder
being the right of his heirs ; if, therefore, the
difference remain with her in substance, she
must restore it ; or, if it do not remain, »she
is responsible for the value (and this also is
the doctrine of Shafei, and the same differ-
ence of opinion obtains in respect to clothes
and apparel), because the wife in this case
has received in advance the return for the
matrimonial confineme*,*, to which she has a
claim, in virtue of such v >nnnement, but her
claim is annulled by the husband's decease,
since she no longer remains confined, and
consequently the return is annulled in pro-
portion to the annulment of her claim, in the
same manner as the stipend of a Kazee:— The
argument of the two Elders is that the main-
tenance it a gratuity, of which the claimant
has already taken possession ; and restitution
j ?ugrctultX cannot be demanded after
death, the virtue of it beinq completed by
!u! ?rVeufc' as.ln a case °f 8ift ; whence it is
that it the maintenance were to perish in the
woman s possession, without her consuming
it, no part of it can be demanded of her, •ac-
cording to all the doctors, whereas, if it wete
a return it might be demanded in a case of
destruction, as well as in one of consump-
tion, nor would there be any difference be-
143
tween the two. — It is recorded from Moham-
, med that if the proportion advanced do not
exceed that of one month ; no restitution is
required, as this proportion is inconsiderable,
and stands as an allowance for present use.
A slave may be sold for the maintenance of
his wife, if the latter be free. — IF a slave
marry a free woman, her maintenance is a
debt upon him, for the discharge of which he
may be sold ; but this is only provided the
marriage was with his owner's consent, as
her maintenance being due from the slave
the obligation to it must ultimately affect
his owner ; the debt is therefore charged to
the slave, in the same manner as one con-
tracted in trade by a Mazoon, or privileged
slave ; but his owner is at liberty to redeem
him bv discharging the debt, necause the
woman's right extends to her maintenance
only, not to the slave's person : and if the
slave die, her right to any arrear of main-
tenance drops (and so also where he is killed),
since it is a gratuity, as was already stated,
A husband must maintain his wife, being
a slave, were she resides with him.- — IF a
man marry the female slave of another, and
her owner give her permission to reside in
her husband's house, her maintenance is in-
cumbent upon the husband, because she is
then within his custody : but if she have not
permission to reside with her husband, he is
not responsible for her maintenance, as in
I this case her custody is not established. —
I The term here applied to the permission
j granted by the master [taboweeatj means
! not only liberty to reside in the husband's
j habitation, but also an exemption from all
service ; wherefore, if any service be after-
wards required of her, the maintenance from
the husband drops, as custody which is the
ground of her right to maintenance from
him, necessarily ceases on such an occasion
— It is lawful for the master to require the
service of his female slave, although he have
granted her leave to reside with her hus-
band, because such leave is not binding upon
him, as is demonstrated in its proper place,
— But it is. to be observed that if the female
slave voluntarily perform her master's ser-
vice, without his calling upon her, her right
to maintenance from her husband does not
drop.
And the same of Am-Walids. — THESE
rules apply equally to Am-Walids as to ab-
solute slaves.
Section II.
A wife must be acco mmodated with a sepa-
rate apartment.-*-lT i« incumbent upon a
husband to provide a separate apartment for
his wife's habitation, to be solely and exclu-
sively appropriated to her use, so as that
none of the husband's family, or others,
may enter without her permission and de-
sire, because this is essentially necessary to
her, and is therefore hef due the same as
maintenance, for the word of God appoints
her a dwellings-house as well as a subsis-
tence ; and as it is incumbent upon a hu\>-
144
DIVORCE.
[Votl.
band to provide a habitation for his wifo, so
he is not at liberty to admit any person to a
share in it, as this would be injurious to her
by endangering her property, and obstruct-
ing her enjoyment of his society ; but if she
desire it, the husband may then lawfully
admit a partner in the habitation, as she by
such a request voluntarily relinquishes her
right ; neither is the husband at liberty to
intrude upon his wife his child by another
woman, for the same reason.
. IF the husband appoint his wife an apart-
ment within his own house, giving her the
lock and key, it is sufficient, as the end is by
this means fully obtained.
But under the control of her husband, with
respect to visitors, &c — A HUSBAND is at
liberty to prevent his wife's parents, or other
relations, or her children by a former mar-
riage, from coming in* to her, as her apart-
ment or habitation is his property, which he
may lawfully prevent any person from en-
tering ; but he cannot prohibit them from
seeing and conversing with her whenever
they please, for if he were to do so, it would
induce Katta Rihm, or a breach of the ties
of kindred, and their seeing or conversing
with her is in no respect injurious to him.
Some have said that he cannot prohibit them
from coming in to her, any more than from
conversing with or seeing her, but he may
prevent them from residing with her, as this
might cause disturbance and inconvenience.
Others have said that he cannot prohibit his
«wife from going to visit her parents, nor
-prevent the parents from visiting her every
Friday ; neither can he forbid her other
relations from visiting her once a year ; and
this is approved.
Maintenance to the wife of an absentee is
decreed out of his sub stance. —If a woman's
husband absent himself, leaving effects in
the hands of any, person,, and that person
acknowledge the deposit, and admit the
woman to be the wife of the absentee, the
Kazee must decree a maintenance to her out [
of the said effects ; and the same to the
infant children of the absentee, and also to
his parents. And the rule is the same if the
Kazee himself be acquainted with the above
two circumstances, where the trustee denies
both or either of them. — The argument upon
which this proceeds is that where the above
person acknowledges the woman to be the
wife of the absentee, and also, that he has
property of the latter in his hands, such
acknowledgment amounts to an avowal of
her being entitled to receive her right out of
the said property, without the husband's
consent, as a woman is authorized to it by
law.
* Although, by the customs of the east,
men are not permitted to enter into the
women's apartments without especial per-
mission, yet it is not uncommon to converse
with a woman through a curtain, or (as some
part of this passage seems to imply) through
it gate,
OBJECTION, — If a woman be decreed her
maintenance out of the effects of her absent
husband, in consequence of the trustee's
acknowledgment, this admits the judgment
of a magistrate against an absentee, which
is illegal.
REPLY.~The order of the Kazee is not in
this case directly against an absentee, but
only virtually, and by implication, because
the above person is the Zoo-al-Yed, or
immediate possessor of the property, and
the acknowledgment of such an one 'is to be
credited in anything affecting his trust, but
more especially in the present case, since if
he were to deny either the marriage or the
deposit it would not be in the woman's
power to sue him, for if she do so, and pro-
duce witnesses in support of her plea, their
evidence could not be received, as a trustee
cannot be sued on a plea of marriage ; nor
can the woman appear as plaintiff against
him with respect to the property in his
hands, since she is not the husband's agent :
and the trustee's acknowledgment being
credited, the Kazee, in consequence of it,
issues a decree for the wife's maintenance,
which must affect the husband of course ;
and the decree of a Kazee. affecting an
absentee in this way, is approved. — If, more-
over, the property of the absentee be in the
hands of the person aforesaid in the way of
Mozaribat, or as a debt, the rule holds the
same as if it were a deposit.
Unless that be of a nature different from
what is necessary to her support — WHAT is
now said supposes the property to be .of the
same nature with the woman's right, such as
money, grain or cloth : but where it is
otherwise, a maintenance must not be de-
creed out of it, because, in this case, it can-
not be furnished from it but by selling a
part, and defraying the expense of it out of
the amount ; and ail our doctors agree that
the property of an absentee cannot be sold
— Haneefa is of this opinion, because the
Kazee cannot sell the effects even of a
person on the spot, but must require him to
sell them, and discharge the maintenance
with the amount ; and consequently he is
prohibited from selling the property of an
absentee, a fortiori. The two disciples also
are of the same opinion, because, although
they hold that the Kazee may dispose of the
property of a person on the spot, for the
discharge of his wife's maintenance, without
his consent, yet this is only where he refuses
to do so ; but the property of an absentee
cannot be thus disposed of, as his refusal is
not known.
But she must give security that sh€ has not
already received anything in advance. — When
the Kazee decrees a woman her maintenance
out of the effects of her absent husband, it
behoves him to take security from her for
whatever she receives for the indemnity of
the absentee, as it is possible that she may
already have received her maintenance in
advance, or that she may have been divorced,
and her Edit be passed ; and the Kazee must
BOOK IV.— CKAP. XV. ]
DIVORCE.
145
also require her to make oath that she has
not received any part of her rminlenance in
advance : contrary to a case where the Ka/.ee
mikes a distribution of inheritance am ).ig
present heirs, according to evidence, and
they do not deny any knowledge of another
heir, for in this case he does not require a
similar security from them o-i behilf of
another heir, who may hereafter appear,
because the Makfool-le-hoo, or surety, is
there unknown and undefined • but in th»>
present case the surety is known, being the
absent husband.
It can bs decreed only to the i<i'/>, in/ant
children, or parents of the absentee —A
KASSEE cannot decree maintenance, out of the
effects of an absentee, in behalf of any but
those already mentioned (namely, the wife,
infant children, and parents of the absenUv),
as they alone are authorized to receive a
maintenance independent of any decree of
the Kazee (that, in the present case, being
only in aid of their right), whereas the other
relations within the prohibited decrees are
not entitled to any maintenance without a
decree of the Kazee previously obtained for
that purpose, as the o ?ligati'on of it with
respect to them varies according to circum-
stances, wherefore the Kazee decreeing it to
them would amount to a judgment against
an absentee, which is not allowed.
No decree can be issued against an ab-
sentee's property upon the bare testimony of
his wife. — IF the Kazee himself be not assured
that the woman is the wife of the absentee
and the trustee factor, or debtor, do not
acknowledge her to be so, and she should
offer to produce witnesses to prove that she
is so, — or, if the absentee should not have
left any effects, and she offer to prove her
marriage by evidence, with a view to obtain
a decree authorizing her to procure a main-
tenance upon the absentee's credit? still the
Kazee cannot issue a decree arcordinfily,
because this would be a judgment against
an absentee, which is inadmissible. — Zitfer
says that it is the duty of the Kazee to hear
the proofs, and (although he Cinnot decree
the marriage to be thereby established) to
order her a maintenance, as this is a tender-
ness due to her, and no injury to the absentee,
because, if he should arterwards appear and
confirm her assertion, she has only taken
what was her right, — or, if he should deny
the marriage, an oath will be tendered to
her (in case of her having no witnesses),
and if she decline swearing, his assertion
remains established ; but if she prove her
assertion by evidence, her right is established ;
and if she cannot produce any proof, and
he swear she or her bail then remain re-
sponsible.'—The author of this work says that
it is the duty of the Kazee, in the present
instance, to decree maintenance to the absen-
tee's wife, from necessity.
.Section ///
A divorced wife is entitled to maintenance
during her Edit.— WHERE a man divorces
his wife, her subsistence and lodging are
incumbent upon him during the term of her
Edit, whether the divorce be of the reversible
or irreversible kind. — Shafei says that no
maintenance is due to a woman repudiated by
irreversible divorce, unless she be pregnant.
— Tne reason for maintenance being due to
a woman under reversible divorce is that
the marriage in sucli a case is still held to
continue in force, especially according to our
doctors, who tm this pnn:iple maintain that
it is lawful for a man to have carnal connex-
ion with a wife s > tepuJiated. — With respect
to a case of irreversible divorce, the argu-
ments of SUafoi are twofold ; FIRST, Kattima
Hint Kavs has said, "My husband repudiated
me by thiec divorces, and the Prophet did
not appoint to me either a place of residence
or a subsistence ;" — SECONDLY, the matri-
monial propriety is thereby terminated, and
the maintenance is held, by Shatei, to be a
return for such propriety (whence it is that
a woman's right to maintenance drop* upon
the death of her husband, as the matrimonial
propriety is dissolved by that event) ;— but
it would be otherwise if a woman repudiated
by irreversible divorce be pregnant at the
time of divorce, as in this case the obligation
of maintenance appears, in the sacred writ-
ings, whicn expressly direct it to a woman
under such a circumstance. The argument
of our doctors is that maintenance is a return
for custody (as was before observed), and
custody still continues, on account of that
jvhich is the chief end of marriage, namely,
offspring (as the intent of Edit is to ascertain
whether the woman be pregnant or not),
wherefore subsistence is due to her, as well
as lodging, which last is admitted by all to
be her right ; thus the case is the same as if
she were actually pregnant ; moreover, Omar
has recorded a precept of the Prophet, to the
effect that "maintenance is due to a WOMAN
"divorced thrice during her Edit :" — theie
are also a variety of traditions to the same
purpose.
No maintenance due to a widow, — MAIN-
TENANCE is not due to a woman after her hus-
band's deo-ase, because her subsequent con-
finement [during the term of Edit, in conse-
quence of that event] is not on account of the
right of her husband, but of the law, the Edit
of widowhood being merely a religious obser-
vance, whence it is that the design of ascer-
taining the state of her womb is not in this
instance regarded, and accordingly the Edit
is not counted by the menstrual terms, but
by time ; maintenance is moreover due to a
woman from day to day, and the husband's
right in his property ceasing upon his decease,
it is impossible that any maintenance should
be made due from what is, after that event,
the property of his heirs.
Nor to a wife in whom the separation
originates. — WHEN the separation originates
with the woman, from anything which can be
imputed to her as a crime, such as apostatizing
from the faith, or having carnal connexion
or dalliance with the son of her husband, sh»
146
DIVORCE.
[VOL. I.
has no claim to maintenance during hdit,
since she has deprived her husband of her
person unrighteously, in the same manner as
if she were to go out of his house without
permission.
Unless it originate in a circumstance not
criminal — BUT it is otherwise where the
separation originates with the woman from a
circumstance which cannot be imputed to her
as a crime, as in a case of option of puberty
or manumission, or of a separation demanded
by her on account of inequality, in all
which cases she remains entitled to mainte-
nance during Edit, as she has here legally
withdrawn herself from her husband, in the
same manner as where she keeps herself from
him on account of non-payment of her dower.
A wife who apostatize has no right to
maintenance. — IF a woman under triplicate
divorce apostatize from the faith, her main-
tenance drops ; but if one in the same circum-
stance admit the son of her husband to carnal
connexion, still her right to maintenance
continues because here the divorce has not
been caused by the apostasy or the incest of
the woman : but the apostate is imprisoned
until such time as she may repent ; and a
husband is not under any obligation to pro-
vide a maintenance for his wife if she be a
prisoner whereas a woman who admits the
son of her husband to carnal connexion is
not liable to imprisonment on that account ;
which makes an essential difference between
the two cases.
Section IV.
A father must provide for the maintenance
of his infant children. — THE maintenance of
infant children rests upon their father ; and
no person can be his associate or partner in
furnishing it (in the same manner as no per-
son is admitted to be associated with a hus-
band in providing for the maintenance of his
wife), because the word of GOD, in the Koran,
says, "THE MAINTENANCE op THE WOMAN
WHO SUCKLES AN INFANT RESTS UPON HIM
TO WHOM THE INFANT IS BORN" (that IS
upon the father), from which it appears that
the maintenance of an infant child also rests
upon the father, because, as maintenance is
decreed to the nurse on account of her sus-
taining the child with her milk, it follows that
the same is due to the child himself a fortiori.
A mother is not required to suckle her
infant. — IF the child be an infant at the
breast, there is no obligation upon the mother
to suckle it, because the infant's maintenance
rests upon the father, and in the same
manner the hire of a n^rse ; it is possible,
moreover, that the mother may not be able
to suckle it, from want of health or other
sufficient excuse, in which case any con-
st-aint upon her for that purpose would be
an act of injustice.
Except where a nurse cannot be procured.
— ^VHAT is here advanced proceeds upon a
supposition of a nurse being easily procured ;
but where this is not the case, the mother
may be constrained to take that office upon
herself, lest the infant perish.
The father must provide a nurse. — IT is
the part of a father to hire a woman to suckle
his infant child, as this is a duty incumbent
upon him ; and it is necessary that the nurse
so hired stay with or near the mother, if the
latter desire it, as the child must be with
its mother, she having the right of Hizanit.
But he cannot hire the child's mother in
that capacity. — BUT it is not lawful for the
father to hire the mother of the child as its
nurse, if she be his wife, or divorced from
him ; and in her Edit. — because, although
suckling her child be not incumbent upon a
mother in point of law, vet it is so in point
of religion, the word of GOD in the Koian
saying, "IT BEHOVES MOTHERS TO SUCKLE
THEIR CHILDREN ;" — and a mother is excused
from this duty only on the supposition of
incapacity ; but if she agree to oerform it for
a compensation, this is an acknowledgment
of her capacity, making the duty incumbent
upon her without anv consideration what-
ever. This rule obtains (as above observed)
where the mother is either actually the wife
of the father, or reversibly divorced from
him, and in her Edit, in which case the
marriage still continues in force ; and (ac-
cording to one tradition) this also is the rule
where the mother was in her Edit from
irreversible divorce ; but another tradition
says that such a person may be lawfully
hired by the father as a nurse, because her
marriage no longer remains in force. — The
argument in favour of the former tradition
is that the marriage still continues in force
with respect to some of its obligations, such,
as the provision of food, lodging, and so forth.
Yet he may hire any other of his wives
for that purpose. — BUT a father may law-
fully hire, to suckle his child, one of his
wives, who is not the child's mother, as
suckling it is not a duty incumbent upon
her.
0 Or the child* t mother, after the expiration
of tier Edtt.— HE may also lawfully hire
the mother of the child herself for this office,
where her Edit frrm divorce has been com-
pleted, because when that is past the mar-
riage no longer remains in force in any
respect, and the woman may then be hired
as well as any indifferent person — In this
case, however, if the father offer to hire any
strange woman to suckle his child, and the
mother offer to perform that office either for
the same hire, or gratis, the has the prior
right, as it is to be supposed that she feels
a venderness for the child beyond any other
person, wherefore regard for the child dic-
tates that it should be committed to her
in preference to any other. But if the
mother require higher wages than the sti anger,
the father cannot be compelled to give her a
preference, as this would be injurious to him.
Difference of religion makes no difference
as to the obligations of furnishing mainte-
nance to a wife or child. — THE maintenance
of an infant child is incumbent upon the
father, although he be of a different religion :
end, in the same manner, the maintenance
BOOK IV.— CHAP. XV.]
DIVORCE.
147
of a wife is incumbent upon her husband,
notwithstanding this circumstance ; — the
first, because the word offspring, in the
sacred text (as before quoted) is of general
application, and also because the child is a
partaker of the father's flesh and blood, and
consequently is a part of him ; — and the
second; because the o:casion of the obligation
of maintenance (namely, a valid marriage)
may exist between a Mussulman and an
infidel woman.
The maintenance of children incumbent
upon the father only where they possess no
independent property. — IT b to be observed
that what has been asserted respecting the
maintenance of infant children being incum-
be/j t upon the father, obtains only where the
child is not possessed of any property ; — but
where the child is possessed of property, the
maintenance is provided from that, as it is
a rule that every person's maintenance must
be furnished from his own^ substance, whether
he be an infant or an adult'.
Section V.
A man must provide a maintenance for his
indigent parents. — IT is incumbent upon a
man to provide maintenance for his father,
mother, grandfathers, and grandmothers if
they should happen to be in necessitous
circumstances, although they be of a diffe-
rent religion : — for his father and mother,
because the text of the Koran, upon this
point, was revealed respecting the father
and mother of a Mussulman, who were
infidels : -and for his grandfathers and
grandmothers because a grandfather is as
a father, and a grandmother as a mother ;
the former bc-ng vested with the authority
of a father, in all points of guardianship
and inheritance, in defect of the father, and
the grandmother being the mother's sub-
stitute, in defect of her, with respect to
Hizanit, and so forth : but their poverty is
made a condition of the obligation, because,
they be possessed of property, their main-
tenance must be provided from that, rather
than from the property of any other person :
-and difference of religion is no objection,
with respect to grandparents, because of the
text above mentioned.
Difference of religion forbid* the obligation
to the maintenance of any relations except a
wife, parents, or children. — IT is to be ob-
served, however, that in the case of difference
of religion, a man is under no obligation to
provide maintenance for any except his wife,
his parents, grandparents, children, and
grandchildren, to all of whom it is due,
notwithstanding this circumstance : — to the
wife because (as was already stated) the
cause of the obligation of maintenance to
her is custody for the purpose of enjoyment
under a valid contract, and the establishment
of this cause does not depend upon unity of
sect or religion, as it perfectly exists where
the wife is a Christian (for instance) and her
husband a Mussulman ; — and to the parents
and others, as enumerated above, because,
between the child and parent exists a com-
mon participation of blood, and he who
participates of another's \>lood is, in fact,
the same as the participatee himself ; and
as a man's infidelity is no objection to his
providing his own maintenance out of his
own property, it follows that the same cir-
cumstance can be no objection with respect
to one who is a part of him.
And to those also it is not due if they be
aliens. — BUT if those relations be "aliens,
their maintenance is in no degree incum-
bent upon a Mussulman, although they be
Moostamms,* because the lawgiver has for-
bidden us from showing kindness to those
with whom we are at war on account of
religion.
Christian and Mussulman brothers are not
obliged to maintain each other. — THERE is no
obligation upon a Christian to provide main-
tenance to his brother, being a Mussulman ;
neither is a Mussulman under any obligation
to provide for the maintenance of his brother,
being a Christian; because (according to
what appears in the sacred text) maintnance
is connected with inheritance ; and as a
Mussulman and infidel cannot inherit of
each other, it follows that the maintenance
of either is not incumbent upon the other : —
it is to be remarked, however, that this rule
does not obtain with respect to the other
effects of consanguinity ; for if a Mussulman
become possessed of his Christian brother,
as a slave, the latter is virtually emanci-
pated, on account of nearness of kindred,
notwithstanding the difference of religion.
The maintenance of a parent is exclusively
incumbent on the child. — THE maintenance
of a father and mother is incumbent upon
their child alone, wherefore no man can be
his partner or associate in furnishing it to
them, because parents have a right m the
property of their child (according to various
well-known traditions), which they do not
possess with respect to that of any other
person ; and also, because the child is more
nearly related to his parents than to any
other person whatever. The maintenance to
parents is equally incumbent upon a daugh-
ter as upon a son, according to the Zahir-
Rawayet; and this is approved, because the
principle upon which the obligation of it is
founded applies equally to both.
Maintenance to other re/attons, besides the
wife, parent*, or children. — IT is a man's
duty to provide maintenance for all his
infant male relations within the prohibited
degrees, who are in poverty ; and also to all
female relation^ within the same degrees,
whether infants or adults, where they are in
necessity ; and also to all adult male rela-
tions, within the same degrees, who are poor,
and disabled, or blind: but the obligation
does not extend beyond those relations,
because the duties of consanguinity are not
* That is, rpsiding in the Mussulman state
under a protection. *
148
DIVORCE.
[VOL. I.
absolutely incumbent towards any, excepting
the nearer (or Karreebat) degrees of kindred,
and do not extend to the more distant de-
grees, as this would be impracticable : on
this occasion, moreover, the necessity is
made a condition of the obligation ; and ten-
derness of sex, or extreme youth, or debility,
or blindness, are evidences of this necessity,
since persons from these circumstances are
rendered incapable of earning their subsis-
tence by labour ; but this rule does not apply
to parents, for if they were to labour for a
subsistence, it would subject them to pain
and fatigue, from which it is the express
duty of their child to relieve them ; and
hence it is that maintenance to parents is
incumbent upon the child, although they
should be able to subsist by their ovn in-
dustry.
MAINTENANCE is due to a relation within
the prohibited degrees, in proportion to in-
heritance ; in other words, upon htm who
has the greatest right of inheritance in the
said relation's estate, the largest proportion
of maintenance is incumbent : and upon
him who has the smallest right, the smallest
proportion, and so of the others, because it
is said in the Koran, "THE MAINTENANCE
OF A RELATION WITHIN THE PROHIBITED
DEGREES RESTS UPON HIS HEIR,' and the
word heir, shows that in adjusting the rate
of maintenance the proportion of inheritance
is to be regarded.
A father and mother must provide a main-
tenance to their adult daughters (and aho
to their adult sons who are disabled), in
proportion to their respective claims of
inheritance. — THE maintenance to an adult
daughter, or to an adult son who is disabled,
rests upon the parents in three equal parts,
two-thirds being furnished by the father,
and one- third by the mother, because the
inheritance of a father from the estate of his
son or daughter is two- thirds, and that of
a mother one-third. The compiler of the
Hedaxa remarks that this is the doctrine
of Khasaf and Hasan. According to the
Zahir-Rawayet, the who^ of the maintenance
to these rests upon the father, the word of
GOD being thus expressed, "THE SUBSIS-
TENCE OF CHILDREN RESTS UPON THOSE TO
WHOM THEY ARE BORN" (as was before
mentioned), and the person to whom thev
are born is the father, wherefore their
maintenance rests upon him, in the same
manner as that of his infant children: but
the former doctrine proceeds upon the idea
of there being two points which make an
essential distinction betweert infant children
and adults, with respect to the father;
FIRST, a father is invested with the authority
of guardianship over his infant child ; —
SECONDLY, the maintenance to his infant
child is expressly declared to rest solely and
Bxclusiyely upon him : but with adults it is
orher vise, as a father has no right of guar-
dianship over them, wherefore the mother
^s to assist him in furnishing their main-
tenance in case of necessity ; and as, in the
maintenance of other relations, the proportion
of inheritance is regarded, S3 in the present
case, in conformity with that rule
Sisters must furnish maintenance to an
indigent brother in the same proportion —
THE maintenance of a brother, in poverty,
rests upon his full paternal and maternal
sisters, in five shares, according to their
degree of inheritance ; that is to say, three -
fifths must bz furnished by the full sisters,
one-fifth by the paternal sisters, and one-
fifth by the maternal. It is to be observed,
however, that to the obligation of furnishing
maintenance to a poor relation, the capa
bility of inheritance only is a condition, and
not the prior or more immediate right : thus
if a poor man have a rich maternal aunt,
and also a rich paternal uncle's son his
maintenance rests ' upon the former in
preference to the latter, although the latter
would inherit of him in preference to the
former, for this reason, that a maternal aunt
is within the prohibited degrees, whereas a
cousin-german is not.
THE miantenance of a relation within the
prohibited degrees is not incumbent upon
his heirs, if they be of a different religion
because in this case, they are incapable of
inheriting from him, which is the condition
of the obligation.
A poor man is not required to support any
of his relations except his wife or infant
children. — THE maintenance of relations
within the prohibited degrees is not incum-
bent upon a person in poverty, because it is
an obligation (like the other duties of con-
saguinity) which cannot be fulfilled by one
who, on account of his situation, has a claim
to that very assistance from others. But
this argument does not hold with respect to
a wife or infant child, for whom it is incum-
bent upon a man to provide subsistence
notwithstanding his poverty, because in
marrying he subjects himself to the expense
of maintaining his wife, as otherwise the
ends of marriage would be defeated, and his
child from participation of blood, is a part
of himself (as was before observed), for
whom it is therefore his duty to find support
as much as for himself.
Definition of the term rich, as here used.
— ABOO YOOSAF defines the term rich, as
used in this chapter, to apply to a person
possessed of property to the amount of a
single Nisab. Mohammed says that it means
a person possessed of property above what
may suffice to support himself and family
one month : or whose superfluity from his
daily earnings enables him to afford it, —
because the obligation, in acts of piety,
depends upon the ability generally, and not
upon any specific degree of it, Nisab being a
proportion invented merely for convenience ;
decrees, however, pass according to the
former opinion. By the Nisab here men-
tioned is understood that which is so small
as to prohibit almsgiving : for instance, two
hundred DIRMS : and Hawlan Hawl, or
possession for a year, is not a condition of
BOOK VI.-CHAP. I.]
VOWS.
149
it : whence, if a man were, from a state of
poverty, to become possessed of two hundred
Dirms as this day, the maintenance of his
poor relations becomes immediately incum-
beat upon him.
Maintenance to the parents of an absentee
may be decreed out of his effects. — IF an
absent son be possessed of property, a main-
tenance to his parents is to be decreed out of
it. for the reason already mentioned ; and
if a father were to sell his absent son's
effects, for the purpose of providing his
"maintenance, it is held by Haneefa to be
lawful, on. a principle of benevolence ; but
he cannot lawfully sell his lands. The two
disciples say that the sale of his effects
is also illegal ; and this is conformable to
analogy, because a father has no absolute
authority over his adult son. and therefore
is not empowered to sell his effects in his
presence on any pretence, nor to do so in
his absence, but for the discharge of debts
which do not include maintenance ; and the
same reasoning applies to the mother. The
reason for the more favourable construction,
as adopted by Haneefa, is that a father is
authorized to take charge of his absent
son's effects ; for as the conservation of an
absentee's property is allowed to devolve
upon his executor, it must be admitted that
it appertains to his father in a superior
degree, as he is more immediately interested ;
and the sale of moveable property is one
part of conservation ; wherefore the father
is at liberty to sell his absent son's moveable
properly ; but this reasoning does not apply
to lands, these not being subject to conser-
vation, as they do not require it ; neither
does it apply to any other than a parent, as the
more distant relations are not endowed with
any absolute authority whatever over an in-
fant, nor with any power of conservation over
the effects of an adult. And where ^ a father
thus sells the property of his absent son, if
the price he receives for it be of the same
nature with his right (namely, maintenance),
he is at liberty to take his right therefrom :
and in the same manner, if a father dispose
of the effects or lands of his infant son, he is
at liberty to take his maintenance out of the
price, that being of the same nature with
his right.
The parents of an absentee may take their
maintenance out of his effects ; but a trustee
cannot provide it in that manner without a
decree. — Ir the effects of an absent son be in
the hands of his parents, and they take their
maintenance from them, they are not respon-
sible, as what they take in this manner is
their right, a maintenance being their due,
independent of any decree from the Kazee
but if the effects be in the hands of a
stranger, and he furnish the maintenance
to the parents therefrom, without a decree
from the Kazee, he is responsible, as he in
that case takes upon him to dispose of the
property of another without authority, since
he is no more than merely the absentee's
agent for conservation (contrary to where he
acts under the Kazee' s orders, in which case
he is not responsible, as those are absolute
and indispensable); and being thus respon-
sible, he has no right to seek indemnification
from the parents, because in assuming the
responsibility, he, in fact, becomes proprietor,
and then appears to have given the property
to the parents gratuitously.
Arrear not due in a decreed maintenance.
— IF the Kazee decree a maintenance to
children, or to parents, or to relations within
the prohibited degrees, and some time should
elapse without their receiving any, their
right to maintenance ceases, because it is
due only so far as may suffice, according to
their necessity (whence it is not so to those
who are opulent), and they being able to
suffer a considerable portion of time to pass
without demanding or receiving it, it is
evident that they have a sufficiency, and are
under no necessity of seeking a maintenance
from others : contrary to where the Kazee
decrees a maintenance to a wife, and a space
of time elapses without her receiving any,
for her right to maintenance does not cease
on account of her independence, because it is
her due, whether she be rich or poor.
Unless where it is decreed to be provided
upon the absentee's credit — WHAT has been
observed on this occasion applies to cases
only in which the Kazee has not authorized
the parties to provide themselves a main-
tenance upon the absentee's credit : but
where he has so authorized them, their right
to maintenance does not cease in consequence
of a length of time passing without their
receiving any, because the authority of the
Kazet> is universal, and hence his order to
provide a maintenance upon credit is equal
to that of the absentee himself, wherefore
the proportion of maintenance for the time
so elapsed is a debt upon the absentee, and
does not cease from that ciscumstance. — The
time here meant is any term bevond a month ;
and if the time elapsed be short of that term,
maintenance does not cease.
Section VI.
Maintenance of slaves incumbent upon
their owner. — THE maintenance of male and
female slaves is incumbent upon their owner,
because the Prophet has said concerning
them "they are your brethren* whom GOD
has placed in your hands, wherefore give
them such food as ye yourselves eat, and
such raiment as ye yourselves are clothed
with, and afflict 'not the servants of your
GOD :" if, therefore, the owner do not provide
their maintenance and they be capable of
labour, they must be permitted to work for
their own subsistence, as this is tenderness
not only to the slaves, but also to his master,
being equally advantageous to both; since
the life of the slave is thereby preserved, at
the same time that the owner's property in
him continues unaffected.— But if the slave
be incapable of labour (as where a male
slave, for instance, is deprived of the use of
his limbs, or where a female is unfit to hire
150
on account of extreme youth or tender habit)
the owner must then be compelled either to
provide their maintenance, or to sell them,
because slaves are claimants of right not-
withstanding their bandage, and by sale
their right is obtained, at the same time
that the ower's right is also preserved to
him by his acquisition of an equivalent in
the price for which he disposes of them. —
This rule does not hold with respect to other
living property (such as horpes, and so forth),
because cattle are not claimants of right,
and consequently the owner is not compelled
to an alternative with respect to them, as in
the case of slaves : but yet men are directed
to furnish their cattle with subsistence on
a principle of piety, as the neglect of this is
cruelty towards the creature, and at the
same time destructive of property, which is
forbidden by the Prophet.— Aboo Yoosaf is
of opinion that the owner of cattle may be
compelled to furnish them a proper and
sufficient subsistence : but it is the more
approved doctrine that he is not hab'e to any
compulsion on that head.
VOWS. [VOL I.
Chap. VIL — Of Vows in speaking and
conversing.
Chap VII (. — Of Vows an manumission
and Divorce.
Chap. IX.— Of Vows in Buying, Selling,
Marriage &c.
Chap. X — Of Vows respecting Pilgri-
mage, Fasting, and Prayer
Chap. XL— Of Vows in Clothing and
Ornaments.
Chap. XII —Of Vows in Striking. Kil-
ling, and so forth.
Chap. Xill. — Of Vows respecting the
Payment of Money.
Chap. XIV. —Of Miscellaneous Cases.
BOOK V.
OF ITTAK, OR THE MANUMISSION OF
SLAVES.
[This book has been omitted, in consequence
of the abolition of slavery by Act V , of
1843. so that the learn ng upjn the sub-
ject has become obsolete, and of no utility
except to the antiquarian, who can con-
sult the early Edition.]
BOOK VI.
OF EIMAN, OR VOWS.
Definition of Eiman. — EIMAN is the plural
of Yameen — Yameen, in its primitive sense,
means strength or power ; also the right
hand : — in the language of the law it sig-
nifies an obligation by means of which the
resolution of a vower is strengthened in the
performance or the avoidance of any thing ;
and the man who swears or vows is termed
the Haliff, and the thing sworn to or vowed
the Mahloof-ali-hee.
Chap. I. — Introductory.
Chap. II. — Of what constitutes an Oath
or Vow, and what does not consti-
tute it.
Chap. III. — Of Kafara, or Expiation,
Chap. IV. — Of Vows with respect to
entrance into, or residence in, a par-
ticular Place.
Ohap. V. — Of Vows respecting various
Actions, such as going, coming
riding, and so forth.
Shap. VI. — Of Vows in eating or drink-
ing.
CHAPTER I.
Oath [of a. sinful nature] are the three
kinds. — OATHS are of three different kinds ; —
FIRST, Ghamoos; — SECOND, Moonakid (which
is also termed Makoodat) ; — and THIRD,
Lighoo.
Perjury — A YAMEEN GHAMOOS * signifies
an oath taken concerning a thing already
past, in which is conveyed an intentional
falsehood on the part of the swearer : — and
such an oath is highly tinful ; the Prophet
having declared — ' ' whosoever sweareth
falsely, the same shall GOD condemn to hell,"
KAFARA. or expiation, is not incumbent
(that is to say, is of no avail) in a Yameen
Ghamoos ; but a repentance and deprecation
of the anger of heaven are incumbent. —
Shafei alleges that expiation is incumbent,
because that was ordained for the purpose of
doing away any disrespect sh^wn to the
name of GOD, which is sinful ; and tms dis-
respect is evident in a Yameen Ghamoos, as
it is calling GOD to witness to a falsehood ; a
Yameen Ghamoos is therefore the same as a
Yameen^Moonakid ; and as, in that, expia-
tipn is incumbent, so in this likewise The
argument of our doctors is that a Yameen
Ghamoos is a crime of great magnitude (or
deadly sin), — and expiation is an act of piety
[whence it may be fulfilled by fasting, and
intention is a condition of it) ; but there
is no expiation for a deadly sin, and conse-
quently there is none for a Yameen Ghamoos :
contrary to the case of a Yameen Moonakid,
as that falls under the class ofMobah.or
:hings indifferent.
OBJECTION. — The description of Mobah, or
ndifferent, applies to things in which there
* Literally, a false oath, or perjury. — It is
lere proper to observe that the distinctions
explained in this chapter relate solely to
such oaths or vows as, being false or broken,
are sinful, and consequently supposed to
excite the divine anger, which must be ap-
peased by expiation : contrary to true oaths,
or to vows duly fulfilled ; as the former of
hese are frequently required for the sake of
ustice, and the latter are permitted, whence
neither an oath nor vow, simply as such, can
>e supposed to require expiation.
BOOK VI.— CHAP. II.]
VOWS
151
is no offence : now as a Yameen Moonakid is
of an offensive nature, how can it be Mobah ?
REPLY. — The offence, in a Yameen Moo-
nakid, occurs subsequently to the declaration
of it, and is occasioned by a disrespect shown
by the vower to the name of GOD, of his
own free option ; whereas the offence, in a
Yam en Ghamoos, exists from the first : and
such being the case, a Yameen Ghamoos is
not to be confounded with a Yameen Moo-
nakid.
Contracted vows (when not fulfilled).— A
YAMEEN MOONAKID* signifies an oath taken
concerning a matter which is to come. — Thus
a man swears that he will do such a thing,
or he will not do such a thing ; — and where
the pronouncer fails in this— (that is, where
he does not act according to the obligation
of his oath)~expjation is incumbent upon
him : anJ this i? established upon the au-
thority of the sacred writings.
And inconsiderate oaths. — A YAMEEN
LiGHOof is an oath taken concerning as in-
cident or transaction already past, where the
swearer believes that the matter to which he
thus bears testimony accords with what he
swears, and it should happen to be actually
otherwise : and from the divine mercy it
may be hoped that the swearer will not be
condemned for such an oath, since GOD has
declared, in the Koran, "I WILL NOT CALL
YOU TO ACCOUNT FOR AN INCONSIDERATE
OATH." An instance of Yameen Lighoo is
where a person sees Amroo passing at a
distance, and supposing him to be Zeyd,
says, "by GOD that is Zeyd 1"
Expiation is incumbent, whether the vow
be wilful or compulsatory, or although the
oath be taken under a deception of the
memory. — A WILFUL vow, and a compul-
satory vow, and an oath taken under a de-
ception of the memory, are all the same, and
on account of each expiation is incumbent, J
because the Prophet has said, "there ..are
three points of serious import, the sporting
with which is also serious, to wit. MARRIAGE,
DIVORCE, and a vow." — Shafei, controverts
this doctrine. — His arguments will be here-
after recited at large under the head of
Ikrah, or compulsatory process.
The violation of a vowt whether by com-
pulsion or through forgetfulnesst requires ex-
pulsion.— IF a man do a thing which breaks
his vow, either by compulsion, or through
forgetfulness, these are both the same, and
expiation is incumbent upon him in either
case, because the specified act which is the
condition of expiation is not made void by
the circumstances of compulsion or forget-
f a! ness : — and so also, if the thing should be
done by a maniac or an idiot, — because there
likewise the condition is actually fulfilled.
OBJECTION. — Expiation is not incumbent
•Literally, a contracted oath, or vow.
tLiterally, a nugatory oath, or (some
times) a rash oath,
JThat is, if the thing sworn to be false,
or the vow be violated.
but for the purpose of oblitenting a sin
now no sin can be imputed to maniacs or
idiots, as such are not made answerable ; it
would therefore follow that expiation is not
incumbent upon them.
REPLY. — Although expiation be intended
for the purpose of expunging sin, yet the
obligation of in this case rests upon the
argument of a sin (namely, the breach of a
vow), and not upon the actual sin itself, so
that, wherever the breach of a vo v appears,
expiation is incumbent.
CHAPTER II.
OF WHAT CONSTITUTES AN ^ATH OR VOW,
AND WHAT DOES NOT CONSTITUTE IT.
An oath may be expressed by using the
name of God, or any vf his customary at-
tributes.— YAMEEN (that is, an oath or vow)
is constituted by the use of the name of
Almighty GOD, or of any of those appella-
tions by which the Deity is generally known
and understood, such as Rihrnan and Ri-
heem.* An oath may also be expressed by
such attributes of the Deity as are commonly
used in swearing, such as the power, or the
glory, or the might of GOD, because an oath
is usually expressed under one or other of
those qualities ; and the sense of Yameen,
namely, strength, is by this means obtained,
since as the swearer believes in the power,
glory, might, and oth»r attributes of the
Deity, it follows that the mention of these
attributes only is sufficient to strengthen the
resolution in the performance of the act
vowed, or the avoidance thereof.
Excepting his knowledge, wrath, or m«rcy.
—IF a man swear "by the knowledge of
GOD," it does not constitute an oath, because
an oath expressed by the knowledge of GOD
is not in use : moreover, by knowledge is
frequently implied merely that which is
known ; and in this sense the word know-
ledge is not expressive either of the name
of GOD, or of any of his attributes.— In the
same manner, should a person swear "by
the wrath of GOD," or "by the mercy of
GOD," it does not constitute an oath, because
an oath is not commonly expressed by any of
these attributes : moreover, by the word
Rihmat [mercy] is sometimes understood
rain, and heaven is also occasionally ex-
pressed by that term ; and by the word
Ghazb [wrath] is understood punishment ;
and none of these are either appellations or
attributes of thepeity.
Jtis not constituted by using any other
name,4_IF a person swear by any other name
than that of GOD,— such as the Prophet, or
the holy temple, this does not constitute an
~*Anglice, the merciful and the beneficent.
Those attributes are affixed to the name of
the Deity, at the beginning of the Koran,
and (in imitation thereof) at the beginning
of every Mussulman book.
152
VOWS
[VOL. I.
oath, — as the Prophet has said, " if any man
among ye take an oath, he must swear by
the name of GOD, or C!M«* his oath is void."
If a person also swear by the Koran, it does
not constitute an oath, althovgh the Koran
be the word of GOD, because men do not
swear by the Koran. The compiler of the
Hedaya observes that this is where the
swearer only says "by the Prophet," or "hy
the temple/' or "by ths Koran ;" but if the
swearer say, "if I act contrary to what I
now say, may I be deprived of the Prophet/1
or "of the temple/' or "of (he Koran ;"
this constitutes an oath, because such priva-
tion would reduce the swearer to the state
of an i .fidel, and the smpensir n of infidelity
upon a condition amounts to Yiimeen.
Particles of siucarin", - AN oath is con-
firmed by the use of the particles of swear- !
ing ; and these (in the Arabic) arc three, [
namely, the letters, waw, and he, and te,* as •
oaths are commonly repeated and under- I
stood under this form ; and in this sense j
these particles occur in th« Koran. Let it !
be also observed that the particles of swear- I
ing are sometimes understood, thouuh not •
expressed, that is, are omitted in the expres-
sion, although impl ed in the sense ; and
this constitutes an oath ; as if a man were
to say, "Gop, I will n:t do this :" because :
fin the Arabic] it is common to reject the j
particle for the sake of brevity : sometimes
indeed the letter lam is used for the swear-
ing particle, as it is capable according to
Mooktarf) of being substituted for be.
Swearing by the truth of God is not an
oath.— HANEEF A allet.es that if a man should
swear "by the truth of GOD/' this does not
constitute an oath, and in this Imam Mo-
hammed coincides. There are two opinions
of Aboo Yoosaf recorded of this point :
according to one it is not an oath ; but
according to the olher if is an oath, because
truth is one of the attributes of the Deity,
signifying the certainty of the divine exist-
ence, and hence it is the same as if the
swearer were to say, "by Gon, truth I"
and as oaths are common under this mode of
expression, so an orith is here, constituted.
The argument of Mohammed and Haneefa
is that the term "the truth/' as here ex-
pressed, relates merely to the identity of
the godhead as the object of obedience, and
hence an oath thus expressed appears to be
taken by that which is neither an appella-
tion nor an attribute of GOD. The learned,
however, say, that if a person express him-
self thus, "by the truth, \ will do so and
so," this constitutes an oath, because the
truth is one of the appellatives or proper
names of GOD. But, if a person were to say
"I will do this truly/' it does not amount
to an oath, because the word truly can only
•Each of these letters, prefixed to the
name of GOD, is expressive of the English by.
fA( celebrated Arabic grammarian and
rhetorician.
be taken, in this case, as a corroboration or
confirmation of the promise contained in the
speech, being the same as if he were to say
"I shall do this indeed."
The expressions "/ swear/' "/ vow " or
"I testifv," contitute an oath, without the
name of God.— IF a man say, "1 swear," or
"I vow/' or "testify," whether the words
"by GDD" be superadded or not, it consti-
tutes an oath, because such words are com-
monly used in swearing : the use of them in
the present tense is undisputed ; and they
are also sometimes used in the future tense,
where the context admits of a construcuon.
in the present ; and attestation amounts to
an oath, as in that sense it occurs in the
sacred writings : now swearing by the name
of GOD is both customary and conformable
to the divine ordinances, but without the
name of GOD it is forbidden ; when it so
occurs, therefore, it must be construed into
a lawful oath ;* hence, some say, that inten-
tion is not requisite in it ; others, however,
allege that the intention is essential, because
the words here recited bear the construction
of a promise, — that is, they admit of being
received as applying to the future, and also
of being taken as a vow without the name of
GOD.
IF a person, speaking in the Persian lan-
guage, were to say, "I swear by Goo," it
amounts to an oath, because here the idiom
confines the expression solely to the present ;
but, if he were to say simply, 'I swe-ai"
some allege that this clops not < onstuuto
an oath. If he wore to say, "I swear by the
divorce of my wife," tlu's is not an oath as
an oath is not so expressed in practice.
Swearing by the existence of G ;d makes
an oath. — IF a man, in swearing, say, "by
the age," or "the existence" (of (Jou), it
constitutes an oath because the atr> or exis-
tence of GOD signifies H»s eternity ; which is
one of His attribute?. [Several] other forms
of swearing are here recited, but of no con-
sequen:e, as their validity or nullity depends
altogether upon certain peculiarities m the
Arabic idiom.]
A vow ma\ be contracted by the impre-
cation of a conditional penalty — IF a person
should sav, "if I do this may I be a Jew/'
or "a Christian," or "an infidel," it consti-
tutes an oath ; because, as the sw arer has
made the condition a sign of infidelity, it
follows that he is conscious of his obligation
to avoid the condition ; and this obligation is
possible, by his making it an oath, in such a
way as to render urlawful to himself that
which is lawful.— And if the oath relate to
any thing which he has done in the time
past, as if he were to say, 'jif I have done so
•That is, the superaddition of the expres-
sion, "by GOD," must be understood in it,
so as to make it appear an oath made con-
formably to the divine ordinance, lest the
speaker, by swearing in a way that is for-
bidden, be found guilty of an offence.
BOOK VI —CHAP. III.]
VOWS
153
may I be a Jew/' or "an infidel/' and so
forth, this is a Yameen Ghamoos, or perjury.
The swearer is not, however, in this case
made a Jew or an infidel, because the words,
"may I be an infidel" (and so forth), relate
to some future indefinite period. — Some, on
the contrary, have alleged that he becomes
actually as an infidel,* because the penalty
which the swearer imprecates upon himself
relates to the present instant of his testimony,
being the same as if he were to say, "I am a
Jew, &c. — But the fact is, the swearer does
not become a Jew or infidel in either of the
case before us (that is, in that of a vow with
respect to the future, or an oath regarding
the past), provided he sonsider this merely
as a form of swearing : f but if he believe
that by thus swearing he fully subjects
himself to the penalty expressed, he suffers
accordingly, in either' instance, because he
appears consenting to infidelity, on account
of having ventured upon a thing by the com-
mission of which he conceives that he may
be rendered an infidel. J
IF a person say , "if I do thus, may the
anger of GOD fall upon me," this does not
constitute a vow, as not being a customary
mode of expression for that purpose. And
so, also, if a person were to say, "may I
be an adulterer," or "a drunkard/' or "an
usurer/' because these are not generally un-
derstood or received as form, of swearing.
CHAPTER III.
OF KAFARA. OR EXPIATION. §
A vow may be expiated by the emancipa-
tion of a slave; the distribution of alms.— THE
expiation of a vow is effected by the ern,an-
cipation of a slave ; and the emancipation
of such a slave as suffices in Zihar, suffices
also in the case of a vow : — or if the swearer
choose, let him clothe ten paupers, giving to
*That is, becomes subjected to the penal-
ties of actual apostasy from the faith.
t Where no other penalty than that of
expiation can be incurred.
I All these cases suppose the thing sworn
to be false.
§ The term Kafara means not only an
expiatory atonement for the breach of an
absolute vow, but also the substitution of an
expiatory act for the penalty imposed by a
vower upon himself in the case of a vow sus-
pended upon a condition, by which he had
designed to restrain himself from the com-
mission of any particular act;
Meaning expiation for the breach or
violation of a vow,-y*>r for any other descrip-
tion of Yameen which admits of expiation,
*uch as a Yameen Lighoo, & c.
each one piece of cloth, or more (the smallest
quantity to each is as much as is necessary
in prayer*; — or if he please, let him distri-
bute victuals among ten paupers, the same
as in the expiation of Zihar —All these
modes of effecting the expiation of a vow arc
authorized in the Koran, according to the
words in the text,— "THE EXPIATION
THEREOF MAY BE EFFECTED BY FEEDING
TEN POOR PERSONS WITH SUCH FOOD AS 11
USUALLY CONSUMED IN YOUR FAMILIES, OR
BY CLOTHING TEN POOR PERSONS, OR BY THE
RELEASE OF A SLAVS —It is manifest, there-
fore, that, in the present instance, one of
these three modes is indispensable.
Or fasting. — But if the delinquent (from
his poverty, or other cause) should not be
able to effect his expiation in any of these
three modes, he may do it by fasting three
days successively.— Shafei says that he has
an option ; if he think proper, he may fast
for three days successively, or for any three
separate days, — because the words of the
Kormare, "IP HE BE UNABI E TO DO THIS,
LET HIM FAST FOR THREE DAYS," which CX-
pression is general — The Haneefite doctors,
in support of their opinion upon this point,
quote the authority of the reading of Abdoola
Ibn Massaood, who expounds the text to
mean three days successively ; and this
accords with what occurs in the Hadees
Mashhoor f— With respect to what has been
said of the smallest quantity of cloth suffi-
cient in expiation it is recorded from Imam
Mohammed. — Hancefa and Aboo Yoosaf
assert that the smallest quantity of cloth
proper upon this occassion is as much as may
be sufficient to clothe nearly the whole body ;
for a mere Shilwar t is not sufficient ; and
this is the more authentic doctrine ; because
one who is only thus clothed is regarded
as naked. — That portion of cloth, however,
which may not suffice in regard to clothing,
may be sufficient in eating, according to its
value : that is, if a person were to bestow, as
an expiation, such a quantity of cloth as,
although it may not suffice for the proper
clothing, yet is equal in value to the feed-
ing of ten poor men. it suffices as a feeding
expiation, whether such may have been the
intention or not. — Thus, if the person to
make expiation were to give to each poor
person the half of a proper dress (for
instance), this would not be sufficient for
an expiation bv clothing ; but if the value of
the cloth thus distributed to each be equal
to the price of three pounds of wheat, it
suffices as an expiation by feeding.
Previous expiation does not suffice. — IF a
person perform the expiation before the viola-
tion of his vow, it does not suffice. — Shafei
maintains that it suffices, where the expiation
• Mussulmans must be clothed in prayer
at least from the waist downwards,
t A collection of traditions so called *
\ A species of drawers which are a suffi-
cient clothing for prayer.
154
VOWS.
[Vox,. L
is effected by means of property, and not by
fasting, because the expiator makes his
atonement posterior to the occasion of it,
(namely, his vow), and hence the case is the
same as that of a pilgrim performing expia-
tion for wounding game,* — that is, if the
pilgrim perform expiation after the act of
wounding, it suffices ; and so also in the pre-
sent case. The argument of our doctors is
that expiation is ordained as an atonement
for offence : but in t he case before us no
offence has yet appeared. — In reply to what
is advanced by Shafei, they observe that the
vow is not the occasion of the offence, as
nothing can be considered in any degree the
occasion of an offence, but what nscessarily
leads thereto, and a vow does not necessarily
leads to its own violation, but is rather pro-
hibitory of it ; hence the vow 18 not the cause
of the offence in the present instance : con-
trary to the case of the pilgrim, adduced by
Shafei, in which the wound inflicted upon
the deer leads to its destruction, by ulti-
mately occasioning its death ; these therefore
are not analogous case*. — It is to be observed
that whatever the expiator may have given
to the poor before the violation of his vow,
he must not take back again, because this is
alms, and it is not lawful for a man to take
back his alms.
A sin/ul vow must be broken and expiated,
— IF a man bind himself, by a vow, to the
commission of a sin, as if he^were to swear,
"by GOD I will not pray," or "I will not
converse with my father," °* "I w*Jl murder
such an one in such a month," it is incumbent
upon him to violate his vow, and perform an
expiation, because it is recorded in the
traditions that if a man vow a thing, know-
ing that the neglect is preferable to the
fulfilment, he ought to act accordingly,
performing an expiation for the breach of
his vow.
The vows of Infidels, being nugatory, can-
not be held as violated.— IF an infidel should
make a vow, and afterwards violate the
same, either as an infidel or as a Mussulman,
(supposing him to have been converted to the
faith in the interim;, still he is not forsworn,
because he was not competent to make a
vow ; as a vow is contracted (that is, is made
binding) by a reverence for the name of GOD,
and the vower, whilst he was an infidel,
cannot be supposed to have entertained any
reverence for the name of GOD : —an infidel,
moreover, is not competent to the perfor-
mance of expiation, as that is an act of piety.
Votus of abstinence. — IF a man make cer-
tain articles unlawful to him, f which are in
their own nature lawful, ac if he were to
say, <4I have made this cloth (or, this provi-
* Pilgrims arc forbidden to destroy game
of any kind within a certain distance of
Mecca, termed the Ihram [forbidden ground]
of pilgrimage.
fThis is a phrase by which is understood a
vow of abstinence from the thing expressed.
sion) unlawful to me," yet such article does
not actually become unlawful to him, but he
must perform expiation when he happens to
put on that cloth, or to cat that provision. —
Shafei says that expiation is not incumbent
upon him, because rendering unlawful that
which is lawful does not amount to a vow, as
a vow is an act authorized by the law. — The
argument of our doctors is that the words,
"I have made unlawful," evince the estab-
lishment of illegality in the thing : now
there is a possibility of establishing illegality
in a thing that is really otherwise, by sup-
posing that the speaker had taken an oath
that he would not wear the clothes, or eat
the provisions ; and this supposition is
adopted, in order to establish the illegality
declared by the speaker ; and it follows that
whenever he does that thing which he has
rendered illegal to himself, he becomes for
sworn, whether the matter be great or small,
because when unlawfulness is once estab-
lished in a thing, the illegality pervades
every part of it.
IF a man were to say, 'every thing lawful
is unlawful to me," every species of food and
drink forthwith becomes unlawful to him,
unless where the intention or design of the
vow has regarded something else. — This
proceeds upon a favourable construction.
Analogy would suggest that the vower, as
soon as he has uttered his vow, must become
forsworn, as being unavoidably and contin-
ually placed in the performance of some
lawful act, such as breathing, moving,
resting, or so forth ; and such is the opinion
of Zifter upon it ; but the more favourable
construction is that the design of the vow is
to establish something, the commission of
which shall be a crime; and as this cannot
be effected where the intention, from the
words of the vow, appears to be general,
regard to its universality drops, and such
being the oase, the vow wiil be construed as
respecting meat and drink, for the sake of
general application, as it is in practice com-
monly applied to the articles of customary
subsistence. A vow of this nature does not
include the use of women, un'ess by tke
intention of the vower : but in this case it
constitutes an Aila, because the form of
words here recited is a vow, bearing the
interpretation of "by GOD, I will not have
carnal connexion with my wife :" and it is
to be observed that, where the vovver, by
the words, "every thing lawful," intends
woman, yet meat and drink are not excluded
fro*n the vow, but atill remain and are to be
considered as constituting a part of it. —
What is now advanced is taken from the
Zahir Rawayet. — Our modern doctors have
said that divorce follows a vow of this form,
independent of the intention, as the afore-
said words are frequently used in divorce ;
* In reciting these forms of vows the
address ["by GOD," or "I swear" &cf] is
for the sake of brevity, omitted ; it is always
however, to be understood.
BOOK VI.— CHAP, IV,]
VOWS.
155
and there are decrees upon record to this '
effect. It is also proper that the same rule
should hold where the vow is pronounced in
the Persian tongue, for the sake of general
application. Let it be observed, however.
that if a man were to say, " whatsoever ^1
have in my right hand is unlawful to me,"
there is a difference among casuists concern-
ing the effect of it ; some doctors say that
the intention it a condition, whilst others
maintain that it is not so ; it is evident,
however, that divorce takes place from it,
independent of the intention, on account of
custom.
A vow is binding without any condition
annexed. — IP a person express a vow in
general terms, that is, not suspended upon
a condition as if he were to say, "I shall
fast upon such a day for the sake of GOD,"
he is bound to the observance thereof, be-
cause it is said . in the traditions, "whoever
makes a vow, and specifies it, he is bound ^to
the obiervance of what he has so specified."
IF a person suspend a vow on a condition,
and the condition afterwards occur, he is
bound to the performance of what he has
vowed ; and expiation is here of no avail,
because the tradition above recited is general
—that is, applies to a suspended as well as
an unsuspended vow ; and also, because a
vow suspended upon a condition becomes,
upon the condition taking place, the same
as one ot immediate performance. — It is re-
corded of Haneefa, that he receded from this
doctrine, alleging that if a man were to say
(for instance), "if I do so, I am under ob-
\1W1 ItiaVCIkiVvC.^ , A& A *-iVV <&\J ) * !»»»• v».«w»'«.. — —
ligation to perform a pilgrimage," or "to
fast a year," or "to bestow all my property
in alms/' and then perform an expiation for
his vow, it suffices ; and such is the opinion
of Mohammed. If, however, the vower
should not make an expiation, but perform
the thing which he had specified, he is dis-
charged from the obligation of that also,
provided the condition be of such a nature
as that the vower had no intention it should
ever take place. The reason of this is that
wh«re the condition is of the description
now mentioned, the speech of the vower, as
aforesaid, bears the sense of a Yameen, or
suspended vow; and also of a Nuzr, o
absolute vow : — evidently of a Nuzr, be
cause such a form of words is commonly
used to express a Nuzr ; and also of a
Yameen, because the design of the p?rson,
in so speaking, is to restrain himself from
doing the act which constitutes the condi
tion ; and such being the case, it remains a
his option either to perform expiation, re
garding hit words in the light of a Yameen
or to perform the condition specified, regard
ing them in the light of a Nuzr : it is other
wise, however, where the thing conditioned
is not of the above-mentioned description
but is actually intended by the speaker.— a
where a man (for instance) says, "if GOD
grant me a recovery from this illness, I ar
under an obligation to perform a pugn
mage," for here expiation doe* not suffice, but
t is incumbent upon him to perform the
ctual thing specified, because in this case
he words do not bear the sense merely of
Yameen, but also of an absolute vow of per-
ormance :— and this distinction is approved.
A vow pronounced with a reservation of
he will of God. ts null.— IF a person make
vow of any thing, adding, "if it please
uioD,"asifhe were to say, "by GOD I will
lothis, GOD, willinp," he cannot be forsworn,
because the Prophet has said, "he who vows
,ny thing, adding, 'if it please GOD. cannot
je forsworn/'— It is to be observed, however,
hat it is a condition that the words "Goo
willing." do follow in immediate connexion
with the words preceding, because if they be
Denounced separately, after having Ottered
he vow, it is a retraction ; and a retracta-
ion in Yameen is not lawful,
CHAPTER IV.
OF VOWS WITH RESPECT TO ENTRANCE INTO,
OR RESIDENCE IN A PARTICULAR PLACE.
A vow against entering a house is not vio-
lated by entering a mosque, church &c.—lr
a person make a vow, that "he will not
enter any house," and he should afterwards
enter a mosque, or synagogue ; or church, he
is not forsworn, because a house is a place
built for the purpose of dwelling in (that is
of sleeping, &c.), and buildings of the above
description are not designed for this purpose:
—the rule is also the same, if the swearer
should enter a porch or portion before the
door of a house for the same reason. Some
have asserted that if the portico be inclosed,
in such a manner, that when the front door
is shut, a person may be said to be in the
house, the swearer by entering such portion
violates his vow, it being customary tor
persons to reside and sleep in such a place,
If the swearer also enter an Iwan* he is tor-
sworn, because that is designed as an occa-
sional residence in the hot weather, and is a
species of dwelling as much as a summer or
winter residence. Some have conceived that
this is the case only where the Iwan has four
walls [that is, where it is a complete quad-
rangle] : this distinction is made, because
those buildings in Koofa, and other parts
of Arabia, are generally so constructed :
whereas, with us [that is, in Hindostan and
Persia] they have commonly three walls
only, being quite open in front, and there-
fore ar« not to be considered as a house,—
Others, however, say that entering a lawn
is a violation of ftie vow, whether it be con-
structed of three walls or of four; and this
is approved.
• An Iwan is an open gallery or balcony,
on the top of or adjoining to, an house, the
Sofrf which is generally supported b*. pier,
or pillars, for the benefit of the air mthe
hot season.
156
VOWS.
[VOL. I.
A vow against entering a Serai is not
violated by entering a ruin. — IF a person
swear that "he will not enter into a place"
that is, into a Serai, and he afterwards
enter a place which is desolate and in ruins,
he is not forsworn : but if a person swear
that "he will not enter such a place," the
place being then in a good and habitable
state, and he should enter it after it had
fallen to ruin, and been laid level with the
plain, he is forsworn, because the term Daar,
among both the Arabs and Persians, means
any particular place, as with them it is com-
mon to say, "such a Daar is peopled," — or,
"such a Daar is desolate (that is, aban-
doned) ;" now an edifice is the description
of the term Daar, and this description is
regarded in the first of the above cases, but
not in the last.
IF a man take an oath saying, "I will not
enter into this Daar ;" and the said place
should afterwards become ruined and deso-
late, and should again be rebuilt, or repaired,
and the swearer should after that enter it, he
is forsworn, a:cording to what was before
observed, that the appellation Daar still
continues to be applied to the place, after
the destiuction of the edifice which stood
upon it . — but if this place, after having
been ruined and desolate, should be rebuilt
as a mosque ; bath, or dwelling-house, and
the swearer should, after that, 'enter it he is
not forsworn because in any of these cases
the term Daar is no longer applied to the
place, as it is then called by another name,
such as mosque, and so forth : and the same
rule holds where this person enteri that place
after the destruction of such mosque, bath,
or other public building, as may in the
interim have been erected there, because
the place will not recover its original name
after such destruction.
A yotu against entering Any particular
house is not broken by entering it when in
ruins. — IF a man swear "he will not enter
such a dwelling-house," and he should enter
therein after it has been destroyed or become
desolate, he is not forsworn ; because the
term dwelling-house is abrogated, as no
person then dwells in it ; whereas, if the roof
only should have fallen in, and the walls
remain, and he were then to enter it, he
would be forsworn, because it is still con-
sidered as habitable, and the place does not
lose its appellation of a dwelling-house
[Bait] from that circumstance. In the same
manner he is not forsworn where, the house
having been destroyed and laid level with
the plain, another house is «built upon the
same spot, and he then enters this house—
because the term dwelling-house, as applied
to the former house, was rendered inappli-
cable by the circumstance of its ruin.
A vow against entering a house is not
violated by going upon the roof, or entering
the portico, &c. — IF a man swear that "he
will not enter a certain house/' and he after-
wards go on the top of the house, from the
outside, he is forworn, because the roof is a
part of the house. Some have said that,
with us, he is not forsworn. — In the same
manner, he is forsworn if he enter the por-
tico only of the house specified in the vow.
The compiler of the Hedaya observes that
this case admits of a distinction ; thus, if the
portico be such as that, if the door be shut,
it forms a part of the house, and it be covered
in, he is forsworn, but if otherwise, he is not
forsworn. — If he stand under the arch of the
doorway he is also forsworn, provided the
arch be so constructed as that when the door
is shut it becomes included as a part of the
house ; but if the arch be so situated as that,
after shutting the door, it is not included
as a part of the dwelling, he is not forsworn,
because the door is designed as a protection
to the house ; so that whenever the archway
is not, by shutting the door, included as a
part of the house, but is without the door,
it is evident that it is not included in the
house.
Case of vows respecting abstinence from a
thing in which the vower is at present en-
gaged. — IF a man should swear "I will not
enter into this house," and it should so be that
he is in the said house at the time of swear-
ing thus, he is not forsworn by sitting down
in that house, nor unless he go out of tUe
house, and again enter it This is upon
a favourable construction. — Analogy would
suggtst that the vower is forsworn, because
the effect of the commencement of the act
and of its continuance is one and the same ;
and as he would be forsworn by the com-
mencement of the act, so he is by its con-
tinuance : but the more favourable construc-
tion is that, admitting the effect of the
commencement and the continuance to be
the same, yet this can only be where the act
is of such a nature as to be capable of con-
tinuance, which the entrance into a place
does not allow, as the word entrance simply
implies passing from without to within
IF a person swear that "ta will not put on
a particular garment," and should happen
to have the said garm3nt upon him at the
very time of his so swearing, and should
forthwith take it off, he is not forsworn.
And so also a person riding upon a mule [or
other beast] if he takes an oath, saying, "I
will not ride upon this animal," and should
forthwith alight, he is not forsworn. In the
same manner, a person residing in a house,
if he swear that "he will not live in this
house," and thereupon begin to remove out
of it, he is not forsworn, — Ziffer maintains,
however, that the swearer, in the last of
these instances, is forsworn, as the circum-
stance upon which the violation of his vow
is suspended (namely, his residence in the
house), does already exist, however short the
time may be. Our doctors argue that a vow
is imposed with a view to the fulfilment of it,
and therefore, that in the present instance,
such a space of time as admits of the fulfil-
ment must be excepted from the vow ; and
hence, if the swearer make any delay he
is forsworn, because such acts as are here
BOOK VI.— CHAP. V.]
VOWS.
157
mentioned are capable of continuance, as a
man may, with propriety, say, "I rode a
whole day," or "I wore such a robe for a
day :" contrary to the act of entrance : as a
man could not say, "I entered for a day:'*
and the possibility of continuance in such
acts being thus proved, it follows that the
effect of the commencement and the con-
tinuance is one and the same : — but if the
swearer should here purely intend the com-
mencement of the act, and say that his
design was to vow that "he would not ride
again" (for instance), his declaration is to
be credited, as his words admit of that con-
struction.
IF a man make a vow, saying, "I will not
reside in this house," and he should himself
leave the house, his family and effects still
remaining in it, although he may have no
intention of returning to reside there, yet
he is forsworn, because he is still supposed
to be an inhabitant of that house, from the
circumstance of his family and effects con-
tinuing therein ; as merchants, who reside
in the Bazaars [that is, have shops there],
say, notwithstanding, "they reside in such
a street," meaning the residence of their
families.
A vow against residing in a city is not
broken by the vower' s family continuing
there. — IF a man make a vow, saying, "I
will not reside in this city," and he go forth
from it resolving not to return thither,
although his family should still continue to
reside there, yet he is not forsworn, and his
observance of the vow does not depend upon
his carrying his family and effects out of
that city according to what is recorded from
Aboo Yoosaf, because (contrary to the pre-
ceding case) he is then no longer considered
as an inhabitant thereof in the customary
acceptation : — and a village is (in the Ra-
wayet Saheeh) declared to be the same as
a city, with respect to this rule.4 — Haneefa
observes, upon the preceding case, that »the
removal of the whole of the effects from the
house is necessary, insomuch that if even
a single nail of the vower's property be left
therein, he is forsworn, — because, as his
residence in that house was understood from
the whole of his effects being there, so will
it still be understood whilst any part of them
remains therein. — Aboo Yoosaf alleges that
the removal of a principal part of them is
sufficient, because the removal of the whole is
sometimes impracticable. Mohammed says
that the removal of such quantity only is
necessary, as might be sufficient for house-
keeping, because any thing beyond that is
not of a residentiary nature ; and the learned
have agreed that this is the most laudable
distinction. — It is here requisite that the
swearer remove to another house, without
delay, in order that he may observe his vow ;
for if he should not remove into another
house, but into the street or a mosque, the
learned in the law say that he does not fulfil
his vow ; the reason of which is that if a
person were to remove out of a city with his
family, so long as he does not fix upon
another place of abode, his first residence
remains with respect to prayer :* whence,
if he return to his former abode, he is still
accounted an inhabitant ; and the same holds
good in the present case.
CHAPTER V.
OF VOWS RESPECTING VARIOUS ACTIONS ,*
SUCH AS COMING, GOING, RIDING, AND
SO FORTH.
An evasion of a vow is a violation of it : —
If a man swear that he will not go out of
the mosque, and afterwards desire another
to carry him forth from it, and the other do
so, he is forsworn, because an act performed
by the direction or any person is attributed
to the director, and it is here, therefore, the
same as if he had mounted a beast, and rode
out upon it : but if another person were to
carry him out of the mosque by compulsion
he is not forsworn, because the act of a
person compelling cannot be attributed to
the person who is forcibly compelled, as he
gave no direction in it. — If, moreover, a
person should carry out the swearer with his
will, but without his direction, he is not
forsworn (according to the Rawayet Saheeh),
because his removal cannot here be estab-
lished, as it can only be so by the the circum-
stance of his directing or desiring it, and not
by his will alone ; and his desire or direction
do not appear.
IF a man swear that he will not go forth
[from his house] except to a funeral and he
afterwards go to attend the funeral, and some
other business should then occur to him, and
he go upon that business, he is not forsworn,
because the act of going to the funeral was
excepted from his vow, and his motions after
that are not forthgpings, as by going forth is
understood removing from the inside of a
house to the outside.
IF a man swear, saying, ''I will not go
forth towards Mecca," and he afterwards go
forth with a design of going to Mecca, and
return, he is forsworn ; because his going
forth with a design of going to Mecca (which
is the condition) is here found, since, by
going forth is understood removal from the
inside of the house to without, which has
here occurred. But if he should have sworn,
saying, "I will not come to Mecca/' and
he afterwards go towards Mecca, and return,
he is not forswore, nor until such time as he
actually enters Mecca, because coming im-
plies arriving, and that his not taken place.
If a man swear also, "that he will not go
•That is, he is supposed to be included in
the public prayers offered up in the mwques
for the welfare of that city and its inhabi-
tants.
158
VOWS.
VOL. F
towards Mecca/' some lawyers say that the
case will be the same as this last recited,
whilst others assert that it corresponds with
the preceding case ; this last however, is the
more approved doctrine, because going im-
plies removal, and arrival is not necessary to
constitute removal
An undermined vow of performance is
not violated until the death of the vower. — IF
a man make a vow that Mhe will go to
Mecca/' and he should not go to Mecca during
his life, he is forsworn : but he will not be
accounted forsworn until after his death,
because whilst life remains there is a hope of
his fulfilling his vow.
Vows made with vow of prevention. — IF
a man make a vow, saying to his wife, "if
you go out unless by my permission, you are
divorced," and he should afterwards once
grant such permission, and the woman go
out accordingly, and she should again go
out without her husband's permission, the
consequence of his vow is incurred (that is
the woman becomes divorced), because per-
mission is requisite each time that she goes
out, as he excepted from his vow the act of
her going out with his permission, and any
other act of going out beyond that is included
in the inhibition, wherefore the consequence
is induced by her going forth without his
permission — If the vower explain, saying.
"I intended one permission only," his decla-
ration is to be credited in a religious view,
but not in point of law, because, although
his words, as above, are capable of this
construction, yet it is contrary to their ap-
parent tendency.
Case of a vow express generally, but
restricted t in its sense, to some particular
occasion. —Ip a woman be desirous of going
out, and her husband say, "if you go out,
you are divorced," and she thereupon sit
down, and afterwards go out, the conse-
quence is not induced, — that is, divorce does
not take place :— and so also, if a man be
desirous of btating his slave, and another
vow, "if you beat him, such an one my
slave is free/' and the man, desisting only
for a momentary space, beat his slave, the
slave of the other person does not become
free. The reason of this is that the design
of the speaker in what he vows is to prevent
that going forth of the woman, or that which
(according to what then appears) the woman
or the master is intent upon doing, and of
course the vow is restricted to that beating,
or that going forth, as the foundation of the
vow rests upon what appears at the particular
crisis.— -This species of vow 4« termed Yameen
Fowr, or a sudden vow . and Haneefa is the
first who makes any mention of this kind of
vow : for previously vows were described as
of two species, one general (as where a man
says, "1 will not do so")— -and the other
restricted (as where a man says, "I will not
do so this day") — but Haneefa deduced from
thtse a third, saying, "the third sort is that
which is general with respect to the words,
but restricted with respect to the sense.
IF a man invite another to sit down and
eat breakfast with him, and the other make
a vow, saying, "if I eat breakfast my slave
is free/' an 1 he should then proceed to his
own house, and there eat his breakfast, he
does not incur tru penaly of his vow, because
what he said, as being an answer, relates
solely to the speech of the other person, and
is therefore construed as regarding that
breakfast to which the other had invited
him. But if the person thus invited were
to answer, "if I eat breakfast this day my
slave is free/' — upon his breakfasting either
there or elsewhere at any time during that
day the penalty is incurred, because here he
has superadded to his reply the expression
"this day," and hence what he has said is
rendered a separate sentence and not a reply.
IF a man swear that he will not ride upon
the beast of any other person, and he should
afterwards ride upon a house, the property
of one of his slaves, who is a Mazoon, he is
not forsworn (according to Haneefa), whether
such Mazoon be involved in debt or not.* —
If the Mazoon, however, should be very
much involved in debt, the vower is for-
sworn, although he should not intend it, as
the master, in such 'case, is not held (by
Haneefa) to be possessed of any property in
the animal. If, on the contrary, the debts
of the Mazoon be of trifl ng consequence
only, or if he should not be in debt at all,
the master is not forsworn, where he does
not intend it, because in either case, he
is himself the virtual proprietor of the
animal ; — but the animal is held to belong
to the Mazoon, both in the eye of the law,
and also by common usage, and hence con-
cerning his belonging to the master there is
no doubt ; wherefore his intention in the act
is requisite. Aboo Yoosaf says that he is
not forsworn in any of those cases, unless
he be so jintentionally, because whether the
animal be the property of the master or not
is dubious. Mohammad, on the other hand,
says that he is forsworn, although he be so
unintentionally, since the animal ip his pro-
perty, as the two disciples hold that debt is
in no respect repugnant to a slave being the
property of his master.
CHAPTER VI.
OP VOWS WITH RESPECT TO EATING OR
DRINKING.
Vows with respect to eating dates. — Ira
person swear that "he will not eat of such
a date-tree," his vow relates to the fruit of
that tree only, because he has referred his
•Because all the effects of his slave are
virtually his own property, provided the
slave be not involved in debt.
BOOK VI.— CHAP. VI.]
VOWS.
vow to a thing which is not eatable, namely,
the tree : wherefore his vow is metapho-
rically taken to regard the article which is
the product of the tree, namely, the dates ;
and the subject admits the metaphor, as the
date-tree is the cause as that article existing.
But it is a condition that the dates do not
undergo any change by a new operation ; for
if he were to drink a Nabbeeza (or infusion)
prepared from these dates, or juice expressed
from them, yet he would not be forsworn.
A vow of abstinence from anything is ngt
broken by eating that thing when it has ac-
quired a new description. — IF a man swear
that "he will not eat of those Boosrs" (half-
ripe dates), and should afterwards eat of
them when they have become ripe, he is not
forsworn ; and so also, if he should swear
that "he will not eat of those Ritbs" (ripe
dates), "nor drink of this milk," and he
afterwards eat of these mixed together, after
the Ritbs shall have become mellow and the
milk coagulated -t because the description of
half ride or of ripe is the motive for the
vow. and those descriptions are no longer
applicable ; end in the same manner, the
milk being in the state of milk is the motive
of the vow, wherefore the vow is taken re-
specting it in that state ; milk, moreover, is
ranked among eatables, wherefore by milk
is not understood anything which may be
produced from it. It is otherwise where a
man vows that "he will not converse with
such an infant," or "with such a youth,"
and he converses with the infant after he
becomes a man, or with the youth after he
has become aged,— for here he is forsworn ;
because refraining from converse with a
Mussulman is forbidden by the law, whether
such Mussulman be an infant or a youth ;
hence the descriptions of infancy or adol-
escence are not regarded, in the eye of the
law. as motives of the vow ; consequently
the vowis understood to respect such a per-
son ; and the vower is accordingly forsworm
if he converse with that person after he
arrives at years of maturity.
Or denomination — IF a person swear that
' he will not eat of such a kid," and he
should eat thereof after the said kid shall
have become a goat, he is forsworn, because
the description of kid, in such an animal, is
not the m .tive of the vow, since a person
who avoids eating the flesh of kids, still
more avoids eating the flesh of goats.
IF a man make a vow that "he will not
eat Boosrs (unripe dates), and should after-
wards eat Ritbs (ripe dates), he will not be
forsworn, because Ritbs are not Boosrs.
IF a person make a vow that "he will not
eat Ritbs or Boosrs," and he should after-
wards cat Mozennibs (dates which are begin-
ning to ripen), he is forsworn, according to
Haneefa. The two disciples say that he is
not forsworn by eating Boosr-Mozennibs, in
a case where he may have sworn not to eat
Kitbs ; neither does he violate his vow by
eating Ritb- Mozennibs, in a case where he
has made a vow against eating Booars ; be-
cause Ritb-Mozennibs are termed Ritbs, and
Boosr-Mozennibs are termed Boosrs. Thus
it is the same as if a man were to make a
vow with respect to buying :— that is, if a
man were to swear that he will not this day
buy Ritbs (or ripe dates), and he should
afterwards on that same day purchase
Mozennibs (or half-ripe dates), he is not
forsworn ; and so in this case likewise. The
argument of Haneefa on this point is that
Ritb-Mozennibs are such as rather incline
to Boosrs and Boosr-Mozennibs .*re the re-
verse — (that is, such as rather approach to
Ritbs), wherefore eating either of those is
eating Boosrs or Ritbs, and the vow regards
one or other of them : — contrary to the case
of buying, as the buying relates to every
species, wherefore the inferior species is a
dependant of the superior.
IF a man vow that "he will not buy any
ripe dates/' and he should afterwards pur-
chase a cluster of unripe dates, among which
there may chance to be some ripe, he is not
forsworn , because the purchase relates to
the whole, and the smaller quantity is u
dependant of the greater; but, if the vow
were made with respect to eating, he is for-
sworn, because the eating of them relates to
from time to time, wherefore the vow regards
every one of them. This case is therefore
the same as if a man were to vow that he
would not purchase any barley, and he should
afterwards buy wheat, haying among it some
grains of barley, in which case he it not ior-
sworn ; but if he should vow that he would
not eat any barley, and he should afterwards
eat wheat, among which are 'some grains of
barley, he is forsworn, for the reason here
stated.
IF a man vow that "he will not eat flesh"
and he should afterwards eat the flesh of
fish, he is not forsworn, on a favourable con-
struction of the law. Analogy would sug-
gest that he is forsworn, because the meat
offish is termed flesh, and so it is denomi-
nated in the Koran ; but the reason for the
more favourable construction of the law is
that the meat of fish is only termed flesh
metaphorically, as flesh it produced from
blood, and there is no blood in fish, on
account of their inhabiting the water. If
the vower, on the contrary, were to eat of
the flesh of a hog or a man, he would be
forsworn, because that is actually flesh,
although the use of it be forbidden, and a
vow is sometimes made with respect to for-
bidden things ; and in like manner he is
forsworn if he were to eat of the liver or
the paunch of any animal, because that is
in reality flesh, as being produced from
blood, and is, moreover, used in the tame
manner as flesh. Some say that, in our
times, the vower is not forsworn by eating
of liver or paunch, at these articlet are not
among us accounted fleth.
IF a person swear that "he will not eat or
buy fat" (that it tallow), he is not forsworn
by eating or purchating fat, unless it b» the
fat or tallow of the belly. The two dis-
160
ciples allege that the swearer would violate
his vow by purchasing or eating the fat of
the back, because the peculiar quality of
tallow, which is melting in the Are, exists
in this species, as well as in that of the
belly. The argumsnt of Haneefa is that
the fat of the back is in reality flesh, as
being produced from blood ; and it is, more-
over, used as flesh, and thence the flesh
derives its value and goodness ; for which
reason a person eating it would violate his
vow, where he had sworn not to eat flesh,
and is not forsworn by selling the fat of the
back, where he had sworn that ''he w>u!d
not sell fat." Some allege that this diffe
rence subsists only where the vower hast
sworn concerning fat, but not where he has
sworn concerning tallow, as that is never
used in the way of fl.:sh
IF a man makes a vow that "he will neither
eat nor buy flesh or fat," and he should
afterwards either eat or purchase the fat
tail of a sheep, yet he is not forsworn, be-
cause this part is altogether distinct from
both flesh and fat, as not being used for the
same purpose as either of them.
IF a man swear that "he will not eat of
this wheat," he does not violate his vow,
unless he chew it ; and if he should eat
bread made of the wheat, he is not forsworn,
according to Haneefa. — The two disciples
maintain that by eating the said bread he is
forsworn, since by the terms of the vow is
also understood wheaten bread, according to
common usage. — The argument of Haneefa
is that, the eating of wneat is a thing actu-
ally practised, as men eat wheat boiled and
dressed in other modes, and the literal
acception must (according to its tenets)
always be preferred to the metaphorical,
although that be sanctioned by custom. — -If
the swearer should chew the wheat, the two
disciples coincide in opinion with our doctors,
that he is forsworn ; and this is approved,
since the eating of the wheat comprehends
the chewing of it, in the common form of
Metonymy, as where a man vows that he
will not set his foot in the house of such a
person, and afterwards enters that house, in
which case he is forsworn, whether he rides
into the house, or goes in on foot.
IF a man make a vow, saying, "I will not
eat of this flour," and he should afterwards
eat bread made thereof, he is forsworn : be-
cause flour is not eaten in its simple state,
and hence it is construed to mean such
articles of food as are prepared from it. — If,
on the contrary, he were to eat the actual
flour, he is not forsworn ; and this is ap-
proved; because here it is«certain that the
words were intended in their metonymical
sense, and with that sense the eating of
flour in its simple state does not accord.
IF a person swear that "he will not eat
bread," by this is to be understood, such
bread as is commonly eaten in that place ;
and l this is, in general, either wheaten or
barley bread, one or other of which is almost
universally used. If, also, the swearer
VOWS. [VOL. I.
should eat walnut or almond bread in Irak*
he is not forsworn ; because such bread is
not common in that region; whereas, if he
were to eat such bread in Tabristan f. or any
other place where it is the usual diet, he
would violate his vow.
IF a parson swear that "he <vill not eat
Shawa" (or stew), then the oath relates to
the flesh of the stew, and not to the vege-
tables or eggs that may be mixed with it ;
because the term Shawa means the meat of
the stew, a^d is therefore to be construed in
its literal meaning, unless where the swearer
may have intended by the word Shawa to
e press and include the above mentioned
articles also, when the abstinence ought to
be conform ible to the intention.
IP a parson sweir that "he will not eat
Tabbeekh" (or boiled meat), his vow re-
spects boiled flesh, t Tnis proceeds upon a
favourable construction of the law, accord-
ing to general usage ; and the ground of it is,
that the unrestricted sense of Tabbeekh can-
not be admitted on account that this would
preclude the vower from the use both of
food and of medicine, which is not his
design. The term Tabbeekh, therefore, is
here construed to mean the particular
thing usually understood by it (namely,
flesh cooked in water;, unless where the
intention of the vower may have extended
farther, as if he were to declare that he
meant thereby every species of boiled pro-
visions.— for here this declaration is to be
credited, since this is a violence to himself,
and a man is empowered to inflict penalties
upon himself. If, moreover, in this case,
the vower were to sup of the broth of flesh-
meat he is forsworn, because it partakes of
the quality of flesh, and broth is also termed
Tabbeekh, wherefore he would be forsworn,
"as having eaten Tabbeekh."
IF a person vow that "he will not eat any
Ras" [head], by this is to be understood the
head of an animal, as usually prepared for
cookery, and exposed to sale. — It is written
in the Jama Sagheer. that if a person swear
that he will not eat Ras, by this is under-
stood the heads of cows, bullocks, and goats,
according to Haneefa ; — but that the two
disciples hold it restricted to the heads of
goats.— This diversity of opinion, however,
arises solely from the difference of times;
for in the time of Haneefa the words Ras was
used to express the heads of both kinds ; but
in the time of the two disciples, the heads of
* A division of Persia : the ancient
Chaldea.
t A province in upper Persia : the ancient
Hyrcania.
I Tabbeekh literally means boiled ; in
common usage it signifies boiled flesh ; but
according to its literal meaning, the term
might equally well be applied to any other
food. — this whole case turns upon the
express and generally accepted meaning of
the word.
BOOK IV.— CHAP. VI.]
VOWS.
161
goats only ; and in our times, decrees are
issued according to whatever may be cus-
tomary in conformity with general usage, as
is mentioned in the abridgment of Kadooree.
IF a person vow that "he will not eat
Fakiha,"* and he should afterwards eat of
oranges, citrons, dates, pomegranates, or
cucumbers, he is not forsworn ; but if he
should cat apples, melons, or apricots, he
violates his vow. — This is according to
Haneefa.— -This two disciples say, that he is
also forsworn if he eat oranges, dates, or
citrons In short, Fakiha is a term used to
express things introduced as a delicacy be-
fore or after meals (that is, such things as
are indulged in as a delicacy over and above
the common food) ; and it is the same
whether the fruit of which it is composed
be dried, or in the natural state, provided it
be thus indulged in, in both ways (for the
vower would not be forsworn by eating
dried melons, which it is not common to use
as a superfluous delicacy), and this is the
case with apples, melons, and apricots
wherefore he would be forsworn by eating
them : -but it is not the case with cucumbers
and citrons ; as these are considered merely
as vegetables in buying and selling, and also
in eating ; — in buying and selling, as they
are sold by green -sellers ; — and in eating, as
they are, at the time of meals, set along with
other vegetables ; wherefore the vower is not
forsworn by eating cucumbers or citrons.
With respect, however, to oranges, dates,
and citrons, there is a difference of opinion,
as above mentioned ;— for the two disciples
maintain that by eating of those the vower
is forsworn, as the description of Fakiha is
applicable to them, since they are the most
rare of all delicacies and a higher treat than
any other : but he is not forsworn, according
to Hanecfa, because oranges and dates are
eaten as food, and men eat citrons also as
a medicine ; \vherefore the description of
Fakiha is incomplete, since they ar"e used
for the support of life ; and hence it is that
when dried they are used in cookery.
IF a person vow that "he will not eat
Idam," by this is to be understood anything
which is usually eaten in bread ; thus
Kabobs are not considered as Idam, whereas
salt is supposed to come under the denomi-
nation.— This is according to Haneefa and
Aboo Yoosaf : but Imam Mohammed says
that whatever is most commonly eaten along
with bread is to be recorded as Idam (and
there is also an opinion regarded from Aboo
Yoosaf to this effect), because Idam is
derived from Mowademit, or congeniality,
and such articles are usually eaten with
bread as are agreeable and congenial thereto,
such as simple flesh, fowls, and so forth, —
•Fakiha is said, in the lexicons, to mean
fruit ; it in reality means any superfluous
delicacy which does not come, under the
denomination of food, and this generally
consists of fruit.
I The argument of Haneefa httein is that
I Idam implies that which is eaten as a de-
| pendant, and dependancy is actually found
i in a case of admixture where it stands in
1 the place of bread ; and it virtually exists
where the article used is of such a nature as
never to be eaten alone. With respect to what
Aboo Yoosaf alleges of Idam being derived
from Mowademit, or congeniality, it may be
replied that such congeniality is completely
found in admixture : — and vinegar, or other
similar fluids, are never eaten alone, but
mixed with br^ad or other food ; and salt,
also, is not usually eaten alone ; and it,
moreover, is liable to melt ; wherefore it is
a dependant (contrary to the case of flesh,
and other corresponding substances, which
are frequently eaten alone) :— -and hence by
eating these, the vower is not forsworn,
unless where he intends such articles in his
vow, for this is a violence to himself, and a
man is empowered to inflict penalties upon
himself. It is to be observed that oranges
I and dates are not considered as Idam : this
I is approved.
i IF a person make a vow that "he will not
eat Ghadd" [dinner], by this is understood
i eating at any time from daybreak till noon ;
j as by Asha [supper], is understood what
i is eaten between meridian prayer and
i midnight, because any time after the sun's
1 daclination from the meridian is the time of
Asha. Some assert that this was the distinc-
! tion among the ancients ; but that with the
! moderns the time of Asha is from afternoon
j prayer ; and the morning meal is that which
i may be eateu between midnight and day,
break, because the morning is from midnight
until daybreak. — It is to be observed that
where a person makes a vow against eating
dinner or supper, a full and entire meal is
to be understood of either, such as is custo-
mary : this will, of course, be regulated by
the ir-ual quantity of those meals indifferent
countries respectively ; but, to violate the
vow, more than half the usual quantity must
be eaten,
IF a man make a vow, saying, "if I clothe
myself, or eat, or drink, my slave is free,"
and he should explain his intention, in the
first of these articles, to regard a particular
kind of cloth only, his declaration is not to
be credited either with respect to a decree of
the Kazee, or in a religious view (and the
same is to be observed with respect to the
two other articles of eating and drinking) ;
because intention is not approved unless it
be expressed, and the cloth, or so forth, are
not mentionec^ in the vow. — If a n»an, also,
were to make a vow, saying, "if I put on a
robe," or "eat food," or " drink wine, — my
slave is free," and he afterwards say that
he meant this robe and not that robe, or so
forth his declaration is not to be credited in
point of law : but it is credited in a religious
view, because the words robe, food, and wine,
are here mentioned ; but yet an inte'ntion of
discrimination with respect to them contr-
dicts appearances, wherefore his declaration
162
VOWS.
[Vox-. 1.
is not to be credited as far as regards a decree
of the Kazee.*
Vows respecting drinking out of A fountain
or vessel. — IF a person were to make a vow
that "he would not drink out of such a
fountain/' and afterwards lift water out of
the fountain in a cup, and drink, he is not
forsworn,— nor unless he lift it with his
mouth [that is, drink it without a vessel],
in which case he would be forsworn.— The
two disciples say he is forsworn if he drink
it out of a cup, a* this is the usual mode of
drinking. Haneefa' s arguments are deduced
from the Arabic.
IF a man make a vow, saying, "I will not
drink of the water of such a fountain," and
afterwards drink the water of the fountain
out of a vestel, he is forsworn, because the
water of the fountain, after being taken up
and drank, is still referred to the fountain,
which is the condition ; he is therefore for-
sworn as much as if he were to drink water
out of a stream which runs from the foun-
tain.
IF a man make a vow, saying, "if I do not
drink, this day, of the water which is in this
vessel, my wife is divorced" and it should so
happen that there is no water in it, he is not
forsworn ; and so also (according to Haneefa
and Muhammed) if there be water in the
vessel, and it should chance to be spilled
before the night of that day, Aboo Yoosaf
aayfl that he is forsworn, in either case,
upon the close of that day ;— and the same
difference of opinion subsists where a man
makes a vow to Gop (that is, where he says,
"by GOD I will drink of the water which is
in this cup this day) ; for it is a rule with
Aboo Yoosaf that the possibility of fulfill-
ing the vow is not a condition, either of the
obligation of the vow, or of its continuance ;
— whereas, according to Haneefa and
Mohammed, the possibility of fulfilment is a
condition of the obligation of the vow, and
also of its continuance, because a vow is
taken with a view to its accomplishment,
and it is therefore requisite that the accom-
plishment be possible and conceivably so as
to be obligatory. — The argument of Aboo
Yoosaf is , that although the accomplishment
of the vow be impossible, yet its substitute
(namely, expiation) is possible, wherefore
such a vow may be lawfully taken, insomuch
as it is the occasion of expiation : but to this
we reply that it is requisite that the original
act be practicable, so as to render the taking
*That is, if a man, having made such a
vow, were afterwards to perform any of the
acts therein specified, pleading that he made
his vow under a restrictive intention, and
that the articles he has eaten or drank, or the
robe he has put on, were meant as exceptions
therefrom, the possibility of the truth of this
declaration is to be admitted ; but yet the
Kazee (who can judge only from appear-
ances) must decree the emancipation of the
slave.
of the vow valid, since, if the original act be
practicable, how can the vow be taken so as
to give occasion for a substitute ? — and hence
it is that a Yameen Ghamoos (or false oath
made respecting a thing already past) can-
not be taken in such a manner as to occasion
expiation. — If, moreover, in the case now
under consideration, the words "this day"
should not have been mentioned, but the
vow be general, as if the man had said, "if I
drink not of the water in this vessel, my wife
is divorced," and there should happen to be
no water in the vessel, he is not forsworn,
according to Haneefa and Mohammed : but
with Aboo Yoosaf he is forsworn, upon the
instant. — But if there be water in the cup at
the time of speaking, and it be spilled before
night, the vower is forsworn, according: to all
our doctors. — Aboo Yoosaf makes a distinc-
tion between an unrestricted and a restricted
case ; for he says that, in the restricted case,
the vower is forsworn after the dav is closed ;
but, in the unrestricted case, he is forsworn the
instant he ceases from speaking : the reason
of which distinction is that, as the specifi-
cation of a time is made for the purpose of
extention, the act does not become absolutely
incumbent until the last instant of the time ;
and hence the vower is not forsworn until
then ; but in the unrestricted case, the fulfil-
ment is incumbent on the instant the person
ceases from speaking, which, being impos-
sible, the vower is forsworn on the instant,
— Haneefa and Imam Mohammed also make
a distinction between the restricted and the
unrestricted case ; for they say that where
the vow is genera), and there is water in the
vessel, and it happens to be spilled, the vower
is forsworn ; but not where the vow is re-
stricted ; the reason of which distinction is
that, in the unrestricted case, the fulfilment
is incumbent on the instant the person cease
from speaking ; and the fulfilment being
defeated, by, the thing no longer remaining,
respecting which trie vow was taken, the
vower is forsworn, because the thing vowed
is in this case defeated subsequently to the
time when fulfilment was incumbent ; in the
same manner a5 if the vower should happen
to die, and the water remain in the cup, in
which case he would be forsworn : — but,
where the vow is restricted, the accomplish*
ment is not absolutely incumbent, until the
last instant of the time specified ; but the
accomplishment is then impossible, because
the water, which was the subject of it, no
longer-remains : and where the accomplish-
ment is no longer possible, it is not incum-
bent ; wherefore the vow becomes null, as
much as if there were no water whatever in
the vessel.
A vow made respecting an absolute impos-
sibility is held as violated upon the instant. —
IF a person make a vow, saying. "I will, by
some means or other, ascend to heaven," or,
"I will, somehow, convert this stone into
gold," this constitutes a vow,* and the vower
•Arab. Yoonakido-al-Yameeno, the vow
BOOK IV. —CHAP. VII.]
VOWS.
163
is forthwith forsworn.— Ziffer says that this
does not constitute a vow, since ascending to
heaven, or turning stone into gold, are im-
practicable, in the usual nature of things,
and therefore are the same as things actually
impossible.— The argument of our doctors is.
that the fulfilment is here actually prac-
ticable, because it certainly is possible to
ascend to heaven, as we know that the angels
of Goo ascend the skies ; and in the same
manner it is possible that a stone may be
converted into gold by the Almighty exerting
his power for that purpose : now the thing
vowed being possible, the vow is contracted
so far as to give occasion for expiation ; and
the yower is forthwith forsworn, because of
his inability, in the ordinary nature of things,
to execute the thing which he has under-
taken ; in the same manner as if a vower
were to die before the accomplishment of his
vow, in which case he would be forsworn,
although it be possible that he may yet
be restored to life : contrary to the case
of the vessel of water, because the drinking
of the water undertaken to be drank is not
possible in. either of those cases, and there-
fore the vow is null.
CHAPTER VII,
OF VOWS WITH RESPECT TO SPEAKING AND
CONVERSING.
A vow against speaking to such a person
is violated by speaking to him within hearing
distance, although he be asleep. — IP a person
make a vow, saying, "I will not speak to
such an one/' and he should afterwards
speak to that person while asleep, from
such a distance as may be within his hearing,
he is forsworn ; because he has spoken to
that person, and the words have reached
his ears ; although, in consequence of being
asleep, he may not have heard them, and it
is therefore the same as if he had called to
that person from a place within his hearing,
and thd person be not sensible of his address-
ing him through inattention. In some pas-
sages of the Mabsoot it is said that it
is conditional to the violation of the vow
that the person sleeping be awaked by the
words spoken (and in this opinion our
doctors coincide) : because, if he be not
awakened, it is the same as if the speaker
had called to him from a place so distant as
not to be within hearing, in which case he
would not be forsworn, and so here likewise.
Case in which the violation of the vow de-
pends upon the meaning of the terms used in
it. —!F a man make a vow that, "he will
is contracted ; that is to say, is valid in its
effect, and binding upon the vower. The
expression, as above, is preferred by the
translator, as being more familiar to an
English reader.
not speak to such an one without his per-
mission," and the person mentioned should
permit him to speak accordingly, but the
vower be not certified thereof until after he
shall have spoken to him, he is forsworn ;
because the term Izn [permission] is deyied
from the word Azan, which signifies indica-
tion ; or if it signifies a thing received by the
ears, which can only be done by hearing,
Aboo Yoosaf says that he is not forsworn,
because Izn signifies licence, which is fully
understood by tacit consent alone ; that is
(like the will), it does not depend upon any-
thing else : for instance, if one were to swear
that "he would not speak to such a person
without his will," and the person should
will his speaking to him, but the vower be
not certified thereof until after he has spoken,
yet he is not forsworn, because the will is
fully established by the person being merely
willing, and does not depend upon anything
else. But to this we reply that the will is
merely an act of the mind, whereas Izn is
not merely so, for the reasons above stated.
Case of a vow against conversing with a
person for a specified time — IF a person
make a vow, saying, "1 will not speak to
such an one for a month," it is to be under-
stood from the time of making such vow,
because if he were not to mention the words
for a month, the vow would take place as a
perpetual relinquishment of converse with
the person mentioned ; the mention of a
month, therefore, is for the purpose of ex-
cluding from the vow anything beyond one
month, and hence that which is connected
with the vow must be included in the vow,
from the argument of the state in which it is
pronounced, as being a state of anger, since
the reason for the observance of the vow is
the anger which occurs to the vower at the
instant, for which reason converse with the
person mentioned is prevented from that
instant. It would be otherwise if a man
should say, "by GOD I will fa^t for a month,"
because, if the words "for a month," were
not mentioned, yet the vow would not take
place as inducing a perpetual fast ; the
mention of a month, therefore, is merely for
the purpose of restricting the fast to a month;
and as the month is indefinite, and not speci-
fied, the specification of it is left to the vower.
Repetition of prayer, &c.t at the stated
seasons, does not violate a vow of silence. —
IF a man make a vow that "he will not
speak," and he afterwards read the Koran
at the stated periods of devotion, he is not
forsworn ; but if he should, at any other
time, read the Kq/an, he is forsworn. The
same rule also holds with respect to the
Tasbeeh,* Tahleel f and Takbeer ,t— that is
^Calling upon the name of GOD in prayei
by saying, "BEESM ALLAH I in the name of
GOD."
fRepeating the Kalma, or creed, "TKERB
is NO GOD BUT GOD, &c." *
{Magnifying GOD (in prayer) by swing
"ALLAHOO AKBERO 1 [Goo is greatest
164
VOWS.
[VOL.
to say, he repeat any of these at the
stated time of prayer, he is not forsworn ;
but if he should repeat them at any other
time, he violates his vow. This proceeds
upon a favourable construction. — Analogy
would suggest that the vower is forsworn
in either case (and such is the opinion of
Shafei), because reading the Koran, or re-
peating the Tasbeeh, and s;> forth, are all
actual exertions of the speaking faculty. —
The argument of our doctors is that prayer
does not come under the description of
speech, either generally, or in the constrvic-
tion of the law the Prophet having said,
"these prayers which I teach are not capa-
ble of being construed as containing any
of the words of men.'1 — Some have said
that in our days the vower would not be
forsworn, even at any other time than the
stated periods of prayer, because the person
who repeats those things is not said to be
speaking, but reciting ; and decrees pass
accordingly.
A vow made respecting the day extend* to
the night a/so. — IF a man were to say, ' on
the day [Yawm] upon which I speak to such
an one, his wife is divorced,"* this extends j
both to the day and the night, because the
word day where it comes in context with a
thing which is not a matter of continuance,
means time generally ; and as speaking to
a person is not a matter of continuance, by
the word day, is to be here understood time
in general.— But if the swearer should
declare that his intention in the vow was
confined to the daytime in particular, his
declaration must be credited with the Kazee,
because the term Yawm is used also in this
sense. — It is recorded from Aboo Yoosaf
that his declaration not to be credited
with the Kazee as it is contradictory to
general usage. — But if the vower should,
in the place of the word day, use the word
night, by saying, "on the night [Lail] on
which I converse" (and so forth, by this
is to be understood night only, because the
positive meaning of the term Lail is night,
in the same manner as the positive meaning
of the term Nihar is day ; but no instance
is known of Lail being used to express time
generally.
Case of a vow of inhibition restricted to a
rrticular occurrence.— IF a person say, "if
speak to Zeyd, unless a certain person
come, his wife is divorced/1 and he should
afterwards converse with Zeyd, before the
coming of the other person, he is forsworn,
— but, if after, he is not forsworn. — In the
same manner, if the swearer were to express
himself, "if I speak to Zeyd until such an
*It is to be observed, in this and other
similar modes of expression, that the vow
is by no means efficient of divorce to the
woman mentioned in it, but is considered,
with respect to her, as a vague and idle
speech, and in itself void, inducing nothing
more than an expiation on the part of the
pejrson speaking.
one shall have arrived" or "unless by per-
mission of such an one," or "until the per-
mission of such an one," — his wife is di-
vorced," and he should afterwards cowerse
with Zeyd, before the arrival or before per-
mission obtained, of the other person, he is
forsworn ; —but, if after, he is not forsworn ;
because the arrival or permission is the ter-
mination of the vow, which remains in force
until the termination, but discontinues upon
that taking place ; and he cannot be for-
sworn after the vow is completed — In the
case here stated, if the person named should
happen to die, the vow ceases : contrary to
the opinion of Aboo Yoosaf, for with him
the vow does not drop, but the vower i*
forsworn if ever he should speak to Zeyd.—
The argument of Haneefa and Mohammed
is that the thing prohibited by the tenor of
the oath is conversation with Zeyd ; and
this, by his death, being rendered impos-
sible, the vow drops of course : but with
Aboo Yoosaf the possibility is not a condi-
tion, whence, upon the death of Zeyd the
vow becomes perpetual.
A vow against converging with A person
described is (in relation to another) not
violated by conversing with th«it person after
the description (with respect to the other)
is done awny — IF a man make a vow, say-
ing "I will not speak to the slave of such
a person," without intending any particular
slave,— -or, if he should express his vow,
"1 will not speak to the^ wife," or "the
friend of such a person," and the person
should sell his slave, or repudiate his wife,
or fall at enmity with his friend, and the
vower afterwards converse with either of
these, he is not forsworn, because his vow
is taken as regarding a circumstance which
has its existence in a matter relative to the
person named, whether that matter be rela-
tion by right of property, as in the case of
the sjave ; or relation by connexion, as in
the case of the wife, or the friend ; and
when that matter no longer remains, the
vower cannot be forsworn. — The compiler
of this work observes that what is here said
is taken from the Jama Sagheer ; and other
authorities agree with it, in respect to the
relation by right of property : but in re-
spect to the relation by connexion the vower
would be forsworn, according to Mohammed,
because such relation is purely of an indi-
cative nature, and is not to be taken in a
restrictive sense, since the case admits the
design of the vower to be a renunciation
of conversation with those persons, as either
of them is capable of being held an enemy
from injuries received but not because of
the relation in which they stand to the
person named j the continuance of that
relation, therefore, is not a condition ; and
hence the effect is connected with the iden-
tical person of either, as in a case of pointed
reference ;— that is, iff a person say, "I will
not converse with this friend, or with this
wife, of such a person," and he should con-
verse with them after the falling out with
BOOK VI .—CHAP. VII.]
VOWS.
165
the friend, or the divorce of the wife, be is
not forsworn : and so here also. — The reason
for what is recited in the Jama Sagheer is
that it is possible that the design of the
vower may be to quit conversing with those
person on account of the relation in which
they stand to the person named (whence he
has not mentioned them with any pointed
reference), and it is also possible that the
design may be merely to quit conversing
with those persons ; thus a doubt exists,
whether the relation be the motive to the
vow or not ; and such being the case, the
vower is not forsworn by conversing with
any of those persons after the dissolution of
the relation in which they stood to the per-
son named. — If, moreover, the man should
have made his vow with respect to a person
paticularly specified, by saying, "I will
not converse with this slave of such an
one," or "this wife," or "this friend" (and
so forth), and he should converse with them
after the slave shall have been ?old, or the
wife divorced, or the friend at enmity, he is
not forsworn in the case of the slave, but he
would be so in the case of the wife or the
friend.— This is the doctrine of Haneefa and
Aboo Yoosaf. — Mohammad says that he is
forsworn in the case of the slave likewise ;
and such also is the opinion of Ziffer. And
if a man were to make a vow, savins, "I
will ^not enter into this house of such an
one," or "I will not ride upon this beast of
such an one," and he should enter the house,
or ride upon the beast, after the owner has
disposed of them, the same difference of
opinion prevails among the doctors as is
above stated.— The argument of Mohammad
and Ziffer is, that the mention of the rela-
tion of the slave to his owner is for the
purpose of indication ; but pointed reference
is more forcible, in indication, than the re-
lation which a thing bears to another, as
that altogether obviates doubt : wherefor<>
regard is had to. pointed reference alone, and
the mention of the relation is nugatory, in
the same manner as in the case of the wife
or the friend —The argument of Haneefa
and Aboo Yoosaf is that the moving cause
of the vow, in the case of the slave, the
house, or the animal, is some property which
is to be found in the person to whom they
have reference; because the house or the
animal are incapable of being of themselves
held in enmity; and so also the slave, as
he does not stand in a rank sufficiently
respectable to admit his being an object of
enmity ; wherefore the quitting from con-
verse from those is on account of a property
which is to be found in the proprietor of
them ; and hence the vow is restricted to
the continuance of the right of the owner:
contrary to a case of relation by connexion
such as the relation of the wife or 'the friend •
as enmity and separation from them may be
the design, for which reason the mention of
the relation la which they stand to the person
named is merely for the purpose of indica-
tion^ and it is evident that the moving cause
of the vow, with respect to them, is some
property which is to be found in themselves,
and not in the person to whom they have
reference ; because they are mentioned with
a pointed reference : contrary to the case of
the slave, the house, or the animal, as in
those cases the thing mentioned is incapable
of being of itself held in enmity, unless on
account of some property to be found in the
person in reference to whom it is mentioned,
namely, the proprietor,
IF a man make a vow, say ing, "1 will not
speak to the owner of this turban," and the
owner of the turban should afterwards sell
| it, and the vower should thereafter converse
with the said person, he is forsworn ; because
here the mention of the relation of the thing
to the person is purely for the purpose of
indication, since men do not fall at variance
with turbans; and hence it is the same as if
he had spoken with a pointed reference to
the owner of it, by saying, "I will not speak
to this owner of the turban :" in which case he
would be forsworn ; and so here likewise.
A vow against conversing with such a
yoath is violated by conversing with him after
manhood.— IF a person make a vow, paying
"I will not converse with this youth," and
he should afterwards converse with him
when he has arrived at an advanced age, he
is forsworn ; because the effect is connected
with the person mentioned ; as a descriptive
expression is not necessary to specify a per-
son who is presene, and the description of
youth cannot be considered as the motive to
the vow.
Section.
Vows respecting converse with a reference
to it man. — IF a person make a vow, saying,
! "I will not converse with such an one for
j a time" [Hyne] — or "for a space of time"
I [Ziman], by these modes of expressing time
I is to be understood six months; because
Hyne sometimes means a short space of time,
and sometimes forty years ; and it also is
sometimes used to express a few months; —
and the space of six months is a medium
between these extremes ; wherefore, by the
term Hyne is here to be understood six
months. The principle upon which this
proceeds is that a very small space of time
cannot be designed for the prevention of
conversation, as prevention may apply to a
little space of time, in common usage, where-
fore in such a case a vow s unneccessary for
prevention : and a very long space of time
is not designed for prevention, as that stands
as a perpetuity : moreover, if he had omitted
all mention of time, by not introducing the
word Hyne, his vow would be taken as
meaning to quit converse with the person
named for ever ; but as he mentioned time,
it appears that his design is not perpetual :
since if it were so, he would have omitted the
word Hyne, or have used the word Abid [§pr
ever] ; and such being the case, it is ascer-
tained that his intention in the, word Hyne
is six months :— and no also of the werd
166
VOWS.
[VOL. I.
Ziman, as that is used in the same sense
with Hyne. — What is here advanced pro-
ceeds upon a supjx>sition that the vower had
no particular intention : but if he should have
intended to express any particular space of
time, it is to be understood according to his
intention, because that is the literal meaning
of the words aforesaid.*
IF a person make a vow in the following
terms, saying, "I will not speak to such an
one for days" [Ayam] — by the word Avam
is to be understood three days : but if he
should use the restricting article, saying,
"I will not converse with such an one for
the days" [Al-Ayam], by this is understood
ten days, according to Haneefa, and a week
according to the two disciples. If the vower,
also, were to express himself. "I will not
speak to such an one for months" [Shoo-
hoor], by this is understood ten months,
according to Haneefa, — and a year accord-
ing to the two disciples : — and if he should
vow, saying, "I will not converse with him
for weeks" [Jooma] or "for years" [Soona-
tine], — by Tooma (according to Haneefa) is
understood ten weeks,— and by Soonatine
ten years ; but the two disciples understand
by either of these the whole life of the
swearer. The arguments here, on both
sides, are deduced from certain grammatical
points in the Arabic.
IF a man make a vow with respect to his
slave, saying, "if you serve me for many
days [Ayamoon Kaseeritoon], you shall be-
come free," — by many days (according to
Haneefa) is understood ten days, because ten
is the greatest number comprehended in the
term Ayam, which is the plural of Yawm. —
The two disciples, on the other hand, say
that by the words many days are to be
undersrood seven days only, because any-
thing beyond is an excess. Some have
asserted that if a man were to make this
yow in the Persian tongue, by many days
is understood seven with all our doctors ;
because in the Persian language there is
no difference between more than ten days
and less than ten, for men say, "ten days
or more," without expressing day in the
plural.f
* Some grammatical controversy here fol-
lows respecting the word Dehr, which does
not admit of an intelligible translation.
t This and the preceding case turn upon
certain points of grammar. In the Arabic
language are four sort- of plurals, which are
termed plurals of paucity : some of the com-
mentators suppose (with Haneefa) that this
species of plural expresses any number up
to ten, whilst others maintain (with Moham-
med) that the utmost number which can
be expressed by it is seven. In the Persian
language a noun is always expressed in the
singular when preceded by a plural nameral,
although it consequently has a plural signi-
fication.
CHAPTER VIII.
OF VOWS IN MANUMISSION AND DIVORCE.
Divorce vowed on condition of the birth of
a child takes place although thtchild.be still-
born.— IF a man say to his wife,* "whenever
you bring forth a child you? shall become
divorced," of a dead child, divorce takes place
upon her ; and in the same manner, if a man
say to his female, "whenever you bring
forth a child, you shall become tree," and
she should afterwards be delivered of a dead
child, she becomes free ; — because the con-
dition (namely, childbearing) is fulfilled, as
an infant, though stillborn, is yet actually
a child, and it is also termed a child by
general usage. Regard is moreover had, in
law, to such a birth, whence it is that the
Edit is accomplished by it : and the discharge
which follows the birth of a dead child is
termed NiFfas, as well as that which follows the
birth of a living child: and in the same manner
the mother of such a child, where she happens
to be a slave, and h*»r owner acknowledges
the child, becomes an Am-Walid.
Freedom vowed in favour of a child that
may be born of a female slavet takes place on
her first live-born child. — IF a man say to his
female slave, "whenever you bring forth a
child, that child is free," and ST^C be rafter-
wards delivered, first of one child dead, and
again of another child living, in this case the
living child alone is free,— -that is to say,
that one is free, but no other who may
be born afterwards. — This is the doctring
of Haneefa, — The two disciples say that no
child whatever is emancipated, because the
condition of the vow has already taken place
I in the birth of the dead child, for the reasons
stated in the preceding case ; and hence the
vow is dissolved, without its consequence
(that is, the vow is accomplished and done
away, without its consequence taking place),
— a.s the dissolution of a vow does not depend
upon the induction of its consequence : thus
if a man were to say to his wife, "if you go
into such a house you are divorced," and
she enter that house after having been re-
pudiated by a complete divorce, and her Edit
be past, the vow is dissolved without its con-
sequence : and so also in the present instance,
as a dead child is not a proper subject of
manumission, — The argument of Haneefa is
that the term Walid [a child] as expr ssed
in the vow, although it be applicable to one
born dead, yet in the present case is re-
stricted to the description of living, because
the design of the vewer is to bestow freedom
upon a child, and as this is a power by virtue
of which the despotic authority of others over
*In this and all the corresponding cases,
the form of the vow, although omitted here
for the sake of brevity, is always to be under-
stood as preceding the sentence, thus, "BY
GOD, whenever you bring forth, &c.," or, "I
vow, whenever, &c."
BOOK VI.— CHAP. VIII ]
VOWS
167
the person endowed with it is removed,
cannot possibly be established to one who is
dead. The term Walid, therefore, expressed
in the vow, is restricted to the living descrip-
tion ; in the same manner as where a master
says to his female slave, "whenever you are
delivered of a living child, such child is free,"
and the slave is delivered of a dead child,
and afterwards produces a living one ; — in
which case this living one is free ; and so
here likewise.~It is otherwise where divorce
or manumission has been suspended upon
the birth of a child, for there the divorce or
manumission so suspended takes place ; as in
this instance it is not requisite that the birth
be restricted to the living description, since
the life of the child is not necessary to the
divorce of the wife, or the manumission of
the slave.
Case of a vow of freedom to the first pur-
chased slave. — IF a man say, "th- first slave
that I purchase is free," and he should after-
wards buy a slave, such slave is free, because
the word first points to the prior single
slave, which applies in this instance : — but
if the vower, in such a case, were to purchase
two slaves together, and afterwards a third,
none of these slaves is free, because singu-
larity does not apply to the third slave,
wherefore he is not the first. If, however,
this man had said, "the first slave that I
purchase singly is free/' the third slave
would be liberated, because here the vower
has intended singularity at the time of pur-
chase, and this one is the first with respect
to such singularity.
Case of a vow of freedom to a last pur-
chased slave. — IF a man say, "the last slave
that I buy is free," and he should purchase
a slave, and then die, yet the slave so pur-
chased is not free ; because the term the last
applies to the individual adjunct,* and as no
other has preceded this one, he cannot be
considered as adjunct ; but if trie vower were
to die after having purchased another* slave,
this slave is free, as being the individual
adjunct. It is to be observed that this second
slave is free (according to Haneefa) from the
day of purchase ; and being free from the
date of the purchase, the same is regarded
as from the whole of the property of the
deceased, on account of his having released
him during health. — The two disciples say
that he is emancipated upon the death of
that person, and hence it is regarded as
from the third of his property only, on
account of the deceased having emancipated
him upon his deathbed : for they argue that
the posteriority of that slave cannot be fully
established, until such time as it becomes
certain that no other can be purchased after
him ; and this cannot possibly be determined
but by death ; hence the condition is found
upon the master's decease, and the freedom
of the slave is therefore also established upon
*Arab. Fard Lahik.— It is a term used
solely in grammar.
that event. The argument of Haneera is
that the posteriority of the slave is ascer-
tained by the master's decease, but the de-
scription of posteriority applies to him from
the period of the purchase. — The suspension
of a triplicate divorce upon posteriority is also
subject to the same difference of opinion ; —
in other words, if a man vow, "the last
woman I marry shall be thrice divorced/'
and he first marry one woman, and ^ after-
wards another, and then die, three divorces
take place upon the second wife according
to Haneefa insomuch that she cannot in-
herit the deceased ; but according to the
two disciples the three divorces take place
upon her from the day of her husband's
decease, and consequently she does inherit of
him.
Case of a vow of freedom to whoever of his
slaves shall congratulate the vower on the
birth of a child — IF a man say, "whoever of
my slaves congratulates me upon the delivery
of my wife shall be free," and afterwards
several of his slaves successively should
inform him of his wife's delivery, the one
who first brought him the intelligence only
is free ; because by Bisharit [which is here
rendered congratulation] is meant any in-
telligence which works a change upon the
countenance, whether that intelligence be
agreeable or otherwise (but yet in common
usage, it is requisite that the intelligence be
agreeable), and this description is fully found
only in the first intelligence, — not in the
second, or third, because no change is by
that wrought upon the countenance. — If,
however, the slaves all bring him news toge-
ther, they are all free, as the Bisharit then
proceeds equally from all.
The emancipation of a slave, in consequence
of a vow, docs not suffice for expiation. — IF a
man were to say, "If I purchase a slave he
shall be free," and he afterwards purchase a
slave, with a view, by his release to effect the
expiation of a vow, this does not suffice for
expiation ; because it is requisite that the
intention of expiation be associated with the
occasion of manumission, which is not the
case here, as the vow is the cause of manu-
mission in the present case, and at the time
of making it expiation was not the intention
of the vower ; and as to the purchase of the
slave, that is not the occasion of the manu-
mission, but rather the condition of it.
But the emancipation of a father, in con*
sequence of purchase, suffices. — IP a man
purchase, as a slave, his own father, with a
view to the expiation of a vow, it suffices,
with our doctors. This is contrary to the
opinion of Ziffer and Shafei, who contend
that the act of purchasing a father is the
condition of manumission, and not the occa-
sion of it, as the occasion of it is relationship
(for purchase is an establishment of right of
property, and manumission is a destruction
of that right, and each of these Is repugnant
to the other, wherefore it is impossible that
purchase srould be the occasion of manu-
mission) ; and it thus appearing that t|>e
168
VOWS.
[VoL. I-
cause of the manunv'ssion is relationship and
not purchase, the intention of the manu-
mission is not associated with the cause of
it. — The argument of our doctors is that the
purchase is blended with the manunvssion,
as the Prophet has said, "no child makes so
effectual a return to his parent as one who,
finding his parent the slave of another, pur-
chases, and thereby emancipates him/' —
which proves that the Prophet constituted
the purchase itself a manumission, as there
is here no other condition of manumis-
sion except purchase, according to all the
doctors.
The emancipation (by purchase), oj a
female slave, by a person to whom she stands
in the relation of an Am Wahd does not
suffice. — IF a man purchase, as a slave, a
woman who has borne him a child, with a
view to the expiation of a vow, it does not
suffice — The nature of this case is thus. A
man marries the female slave of another,
and she produces a child to him, and he says
to her, "if I at any time hereafter purchase
you, you shall become free, as an expiation
of my vow," and he afterwards purchase her,
when the woman becomes forthwith released/
because of the occurrence of the condition
upon which her emancipation was sus-
pended ; but this does not suffice for ihe
expiation of a vow, because the slave is a
claimant of freedom in virtue of IsteJad.*
and hence her freedom is not purely in con
sequence of the vow, and therefore does not
suffice for the expiation of a vow — This case
is contrary to one where a man says to a
female slave, who has not borne a child to
him, "If I purchase you, you shall become
free as an expiation for my vow," and he
afterwards purchase her ; for in this case the
slave becomes free, and her freedom suffices
for an expiation of his vow, because the slave
is not in this instance a claimant of freedom
on any other ground, she being emancipated
purely, in consequence of the vow, and not of
anything else ; and the intention of expia-
tion is found associated with the occasion of
the manumission ;— she is therefore emanci-
pated ; and it suffices for an expiation
Case a vow of freedom to a female slave
on condition of concubinage. — IF a man say
' 'If I make a concubine of a female slave,
she shall be free," and he should afterwards
make a concubine of any female slave, his
own property, she is free accordingly : be*
cause the vow has been taken with respect
to that slave, she being the property of the
vower.— The principle upon which this pro-
ceeds is founded on the grammatical con-
struction of the yower's words in the original
Arabic ; and it is accounted for thus : — the
expression "a female slave," in the case in
question, is indefinite, and an indefinite noun
is comprehended, in an instance of prohibi-
*Her master claiming the child born of
her as his own, [See Claim of Offspring.)
tion, in the way of general individuality ;*
now here this expression stands in the place
of a prohibition, with regard to the design
(as the design of the vower is to prohibit
himself from concubinage), and such being
the case, the expression "a female slave'''
applies to every slave individually. — If, how*
ever, the vower were to purchase a slave, and
make her his concubine, she does not become
free — This is contrary to the opinion of
Ziffer, for he maintains that she also be-
comes emancipated ; because, as it is not
allowed to a man to make a concubine of
any woman who is not his property, it fol-
lows that the mention of concubinage is
equivalent to the mention of a right of pro-
perty ; being the same as if a man were to
say to the wife of another, "if I divorce you ,
my slave is free/' which is equivalent to his
saying : "if I marry you, and afterwards
divorce you," — and so forth ; — because, as
divorce cannot take place without property
by marriage, the mention of divorce may be
said to amount to a mention of marriage : —
and so also in the present case.— The argu-
ments of our doctors on this point are, that
a vow of manumission is not of any effect, ^
excepting in a case of actual right of pro-
perty, or where it is referred, either to the
right of property itself, or to the cause of the
riyht ; and not one of these is found in the
present case. There is dp actual right of
property, evidently ; nor is there any refe-
rence to the right of property, a*s the vower
did not say, "if I become possessed of a
female slave, and make that slave my concu-
bine :" nor is there any reference to a cause
of right, as the vower has referred only to-
concubinage, and that is not a cause of right
of property in a slave, because Haneefa and
Mohammed define concubinage [Tesirree] to-
signify merely "a man's keeping his slave
up, and providing a dwelling for her, and
preventing "her from going abroad, and
having car al connexion with her, whether
he claim the children born of her or not ;"
( Aboo Yoosaf holds that the claim of children,
is also a condition, as a concubine is, in
general usage, one whose children are
claimed) ; — and no one of these particulars
is a cause of right of property. — Vet a right
of property being requisite to concubinage,
must, in the present instance, be taken for
granted, as an essential, from the necessity
of the concubinage (which is the condition)
being legal : this right of property (however,
is taken for granted only so far as is neces-
sary, and does not appear with respect to
the consequence (namely, emancipation),
because whatever is established merely from
necessity, does not pervade beyond the point
of necessity. With respect to the example
of divorce, cited by Ziffer, it may be re-
•Literally, "in the way of universality
of singularity :"— this is a technical phrase,
the sense of which is best explained by the
context.
BOCK VI.— CHAP, IX.]
VOWS
169
plied that the consequence induce (namely,
emancipation) is there admitted only on
account of the vow being made with re-
spect to actual property (for the vower) ;
and the marriage, which is there taken for
granted, as a necessary inference, is so only
with respect to the condition (namely, di-
vorce), but not with respect to the conse-
quence ; insomuch that if the man were to
say to the strange woman, "if I divorce
you, you are divorced thrice," and he after-
wards marry her, and divorce her, yet three
divorces do not take place, as the condition
had not been declared either under an actual
right of property, or in reference to such
right, as to the cause of it : — this ca.se, there-
fore, is analogous to the case, in question,
for this reason, that in both of them the
establishment of the condition is merely for
the purpose of admitting that, but do;s not
pervade to the admission of the consequence.
A general vow of freedom to slaves includes
every description of them. — IF a man say,
'every person my property is free/' his Am-
Walid, and Modabbirs, and Abids, all be-
come free accordingly, because the reference
to a right of property with respect to them
is complete, as all these are the actual pro-
perty of the swearer : but his Mokatibs do
not become free, unless such be the intention,
because absolute possession does not apply to
a Mokatib, whence it is that his master is
not the proprietor of his acquisitions, and
also that it is not lawful for a master to
have carnal connexion with his Mokatiba :
contrary to a Modabbira, or Am- Walid : —
reference to a right of property, therefore,
with respect to a Mokatib, is incomplete
and deficient, for which reason intention is
requisite.
Case of a vow of divorce indefinitely ex-
pressed.— IF a man having three wives, say
of them, " this one is divorced, or this, or
this," divorce takes place upon the last wife ;
and it remains in the choice of the husband
to declare and specify which one of the other
two should become divorced, whether the
first, or the second : because the vow, as
above ^expressed, is the same as if he had
said, " one of you two is divorced, — and also
this one/' — The ground of this is found in
the grammatical construction of those words
in the Arabic. — In the same manner, if a
master should say, with respect to three
slaves, " this one is free,— or this one, — or
this one," — the last becomes free, and it
remains at the option of the master to specify
which of the others shall be free, the first or
the second.
CHAPTER IX
OF VOWS IN BUYING, SELLING, MARRIAGE,
AND SO FORTH.
A vow against the performance of certain
acts is not violated by procuring on agent to
perform those acts.— IF a man make a vow,
saying, " I will not sell, or purchase, or hire,
or let out at rent/' and he should afterwards
appoint any person his agent, to buy, or sell,
or so forth, he is not forsworn ; because the
agent is the contractor, and not his con-
stituent, insomuch that all the rights of the
contract appertain to the agent, not to his
constituent (whence, if the vower himself
were a party to the contract he would be
forsworn) ; and such being the case, the con-
dition of violation, namely, the contract of
the principal, is non-existent, nothing at-
taching to him, excepting only the effect of
the contract, not the contract itself. He is,
therefore, not forsworn, excepting where he
so intends (as this is injurious to himself),
or where the principal is a person of high
rank, and consequently is not accustomed
himself to make contracts, in which case he
would be forsworn by directing another to
act for him ; because a vow is made for the
purpose of restraining from the commission
of some customary act ; and it is usual for
such a person to transact all concerns of pur-
chase or sale by commission ; hence where he
gives his orders to another respecting such
transactions, and the other executes those
orders, he is forsworn.
Except in a case of marriage, manumission,
or divorce. — IF a man make a vow saying,
" I will not marry," or "divorce my wife,"
or "liberate my slave," and he should after-
wards commission another person to perform
any of these acts for him by a power of
agency, and the said agent do so accord-
ingly, the vower is forsworn ; because the
agent in such concerns acts merely as the
negotiator, or in the manner of a messenger,
whence it is that he does not refer such acts
to himself, but to his employer, to whom
the rights thereof appertain, and not to the
agent. Here, however, if the vower were to
declare that his intention in the vow was
restricted to such marriage, divorce, or
manumission, as might be executed by him-
self alone, yet his declaration is not to be
credited with the Kazee : but it is credited
with GOD. — The reason of this shall be ex-
plained in a subsequent case.
Or any act, the right* of which solely
appertain to the vower. — IF a man make a
vow saying, " I will not beat my slave, ' or
" I wi'l not kill my sheep/' and he should
afterwards o-der another to do either of
these, and the other act accordingly, the
vower is forsworn ; because a master has
authority to beat his own slave, or to slay
his own sheep, ^nd is therefore entitled to
authorize another to do so ; and the advan-
tage thereof results to him ; whence he may
be said to be himself the executor of either
of these acts, because the rights of them do
not in any respect appertain to the person so
ordered.— But if the vower should explain
that his intention was to restrain himself
from the performance of such acts as executed
by himself, his declaration is to be admitted
by the Kazee : contrary to the preceding
170
VOWS.
[VOL. I.
case of divorce, &c , where the declaration is
not credited by the Kazee. The reason of
this difference is that divorce merely signifies
a speech which goes to the repudiation of a
wife, and a commission to effect divorce
resembles such a speech ; as the vow there-
fore extends to both of these, where the
vower's intention was that he would not
pronounce a divorce himself, he must have
intended a particular restraint only, from a
thing which was general in its application
(his vow], and hence his declaration, although
it be admitted with Gop, is not to be credited
by the Kazee, as it contradicts appearances :
— but the beating of the slave, or the slaying
of the sheep, ontheothzr hind, are percep-
tible acts, visible in their effects, and are
immediately referable to the director of
them in the way of an efficient cause (since
he is the cause of the beating or slaying) i
and such being the case, where he intended,
by his vow, to restrain himself from the
commission of those acts with his own hands
he intended what is the literal meaning of
the words of his vow ; his declaration, there-
fore, is credited with GOD, and with the
Kazee also.
Nor by employing another to do thing,
where the advantage results solely to the
subject of the vow. — IF a man make a vow
saying, " I will not beat my child/' and he
should afterwards order another to beat the
child, and the other should beat it accord-
ingly, the vower is not forsworn ; because
the advantage of the beating, namely,
instruction, resulti to the child, and hence
the act of the person directed must not be
referred to the director. It is otherwise
where a person directs another to beat his
slave, for there the advantage (namely
obedience) results to the director, in conse-
quence of his order, and hence the act of
the person directed may be said to be the
act of the director.*
A vow of freedom conditioned upon the
sale of a slave takes place on the instant of
salet and the sale is null — IF a person make
a vow saying, " if I sell this slave he is free,"
and he afterwards sell that slave under a
condition of option, f he [the slave] is free,
because the conditions of his freedom (namely,
sale and possession) being both accomplished,
the consequence, which is emancipation,
takes place ; and the sale is null.J Thus
also, if a person, bargaining for a slave
make a vow saying, ''if I buy this slave he
* A long case is here omitfed, as it is purely
of a grammatical nature, turning entirely
upon the different effects of the Arabic
particle Lam, according to its different
position in construction, and consequently
does not admit of an intelligible transla-
tion.
ttThat is, upon a condition, if not ap-
proved within a trial of three days, of being
returned by the purchaser.
J Consequently the master has no claim
for the price stipulated in the sale.
shall be free," and he should afterwards buy
that slave under a condition of option, the
slave is free : because the condition of his
freedom, namely, purchase and possession,
are both accomplished.— Tiis, according to
the tenets of the two disciples, is evident,
because the freedom of the slave is suspended
upon the act of purchase, and the condition
of option on behalf of the purchaser does not
with them prevent the establishment of the
purchaser's possession ; — and so also, accord-
ing to the tenets of Haneefa, because the
freedom in the case in question is suspended
by the suspension of the vower, and a thing
suspended becomes the same as a thing
prompt, up >n the condition being found;
and, as if, after purchase, under a condition
of option, the buyer were to emancipate his
slave promptly, the slave would become free
by poss»s>ion being first established in the
purchaser as an essential, so also in the
present case.
Divorce suspended upon the not selling of
a slave takes place on emancipation or Tad'
beer — IF a man make a vow, saying, " if I
do not sell this slave (or this bondmaid) my
wife is divorced," and he should afterwards
emancipate the slave or the bondmaid, or
should grant to either a Tadbeer, divorce
takes place upon his wife, because the con-
dition, namely, his not selling them, is fully
accomplished, as sale cannot now possibly
take place, since the slave or bondmaid men-
tioned, in consequence of the act of manu-
mission or Tadbeer, remain no longer subjects
of sale.
A vow of general divorce in reply to a wife
charging her husband with bigamy, takes
place upon her in the same manner as upon
the rest. — IF a woman say to her husband,
"you have married another woman, in addi-
tion to me," and the husband, in reply, make
a vow sayjng, "every wife I have is divorced,"
a d ivorce takes place (on the decree of the
Kazee) upon the wife who has asserted as
above. — This is the Zahir-Rawayet. — It is
recorded from -Aboo Yoosaf that the wife
here mentioned does not become divorced,
because the words of the husband, as above
recited, are to be considered merely as a
reply to the woman, and must be received
as such : moreover, the design of the hus-
band in so speaking, may be merely to please
and soothe his wife ; and as this would be
effected by the divorce of his other wives,
the divorce is restricted to the other wives
only. — The ground upon which the Zahir-
Rawayet proceeds is that the husband's ex-
pression is general, as he has introduced the
word "every" (which argues generality), in
addition to the simple reply, whence it ap-
pears that his intention is generally, and
not speciality : and it follows that the sen-
tence must be received as a speech de novo,
and not as a reply — In reply to the arguments
of Aboo Yoosaf, it is to be observed that the
words of the husband admit of being con-
strued into a design of terrifying and
frightening the woman, on account of her
having upbraided him with that which it is
BOOK VI. —CHAP. X.]
VOWS.
171
lawful for him to do : and, under such a
construction, the restriction to the other
wives is not admissible. — If the husband
were to declare that his intention respected
only the other wives, he is to be credited
with GOD, but not with the Kazee : because
he has intended a particular thing by a
general expression, and his words admit of
being taken in this sense ; but it contradicts
appearances ; his declaration, therefore, is
to be credited in a religious view, but not in
point of law.
CHAPTER X.
OUR VOWS RESPECTING PILGRIMAGE,
FASTING, AND PRAYER.
Case of a vow of Masha. — Ira man make
a vow " to perform a Masha [pedestrian
pilgrimage] to the temple of GOD, " it is
incnmbent upon him to perform a pi lg' image
to the Kaba on foot, —or that he make the
visitation termed Amrit ; and if he choose he
may ric'e on his pilgrimage, or Amrit; — but
he mu't in this case perform a sacr fice. This
is on a favourable construction of the law.
Analogy would suggest that neither pilgri-
mage nor Amrit are rendered incumbent upon
him, he having engaged no farther than to
walk to the temple "on foot," which is not
incumbent as an act of piety, but is merely
an indifferent act ; neither is going on foot
the original design, that being simply the
performance of pilgrimage or Amrit — The
reasons for the more favourable construction
here are twofold ;— FIRST, Alee has declared
that, in a vow 'f this nature, either pil-
grimage or Amrit are incumbent upon the
swearer :— SECONDLY, from the expression
aforesaid either piltjrimace or Amrrt are
universally understood ; and hence it is the
same as if he had said, "I owe a visitation to
the temple on foot ;" wherefore it is incum-
bent upon him to perform his pilgrimage or
Amrit on foot, or that, if he choose to perform
it on horseback, he also perform a sacrifice'.*
Case of a vow of manumitsion suspended
upon the non -performance of pilgrimage. —
IF a man make a vow saying, "if I do not
perform a pilgrimage this year, such an one
my slave, is free,"— and after the lapse of
that year a disoute should arise between
the master and the slave,— the slave al-
leging that the master had not performed
the pilgrimage, and the master alleging that
he had performed it, and the slave's wit-
nesses bear testimony in this manner,— "that
*Most of the expressions here treated of
are to be fully understood only in the original
idiom; hence much of the reasoning upon
them is lost in a translation. Two other
cases are here omitted for the same reason,
and also because the rights of individuals are
no way concerned in them.
the master had performed, within that year,
a sacrifice at Koofa," the slave (accor ing
to Haneefa and Aboo Yoosaf) is not eman-
cipated.— Imam Mohammad says that the
slave is emancipated, because the witnesses
have testified to the master having per-
formed sacrifice at Kopfa, which is a well-
known act, and which necessarily implies
that he has not performed pilgrimage, and
hence the condition of the penalty (namely,
non-performance of pilgrimage) is fulfilled.
Case of a vow agcinst fasting — IF a ma
make a vow that he will not fast, and h
should afterwards intend a fast, and keep
the same a short time, and then break his
fast within the same day, he is forsworn on
account of the condition of violation being
fulfilled ; because the word Sawm [fast]
signifies abstinence from those things the
use or* which breaks a fast kept with a pious
intent, which in this case is evident.
Case of a vow against fasting for a day. —
IF a man make a vow that "he will not fast
a day," and he afterwards intend a fast, and
observe the same for a few hours (for instance),
and then break his fast, he is not forsworn,
because he intended such a fast as is regarded
in the LAW, and that is not completed until
it be accomplished by the ending of the day ;
moreover, the full time of a day is expressly
mentioned in his words, "I will not fast
a day," and therefore it is to be so under-
stood
Case of a vow against praying. — IF a man
make a vow that "he will not pray," and he
should after that stand up and perform
Kiraat [reading the Koran], or Rookoo] a
submissive posture used in prayer], he is not
forsworn : but if he perform the Soojda along
with those other ceremonies, he is forsworn.
This proceeds upon a favourable construction.
— The suggestion of analogy is that he would
be forsworn in consequence of beginning to
pray, from the correspondence of this with
a case of fasting ; that is, if a man make a
vow that "he will not fast," and he should
afterwards keep a religious fast, he would
be forswon upon the commencement of it ;
and so also in the present case. The reason
of this is that a person, upon beginning to
pray, is termed a Moosillee, or praying per-
son, in the same manner as one beginning a
religious fast is termed a Sayim, or faster ;
but the reason for a more favourable con-
struction is that a prayer implies and
includes a variety of ceremonies, such as
standing, kneeling, and prostration ; — and
hence, until the whole of these be performed,
it is not termed prayer : contrary to fasting,
as that consists of only one single observance,
namely, abstinence.
IF a man vow that "he will not perform
prayer according to the ordinance of the
LAW," he will not be forsworn upon praying,
until he come to that part of the ceremony
which requires the second genuflection ;
because, by the above mode of expression
he appears to mean that kind of prayer
which is regarded in the LAW ; and t,h«
172
VOWS.
[VOL. I
smallest degree which constitutes that is two
genuflections, as the Prophet has forbidden
short or interrupted prayer.
CHAPTER XI.
OP VOWS RESPECTING CLOTHING AND
ORNAMENTS.
Vow of a husband against wearing cloth of
his wife's manufacture — IF a man make a
vow, saying to his wife, "if I put on any of
your work (that is, cloth made of thread of
your spinning), such cloth is Hiddee (that is,
an offering at the shrine of the Prophet)/'
and that man should afterwards buy cotton,
and his wife spin it into thread, and of that
thread cloth be woven, and the man put on
the same, it is incumbent on him (according
to Haneefa) to make an offering thereof at
Mecca. The two disciples have asserted that
it is not incumbent upon the vower, in the
case in question, to make an offering of his
cloth, unless where the thread has been spun
of cotton which w;«s his [the yower's] pro-
perty at the time of his making the vow ;
for they contend! that a Noozr, or devoting
vow, is not valid, unless it respect actual
property, or be pronounced in a .way which
has reference to the cause of a right of pro-
perty ; and neither of these are existent in
this case, as the vower putting on the cloth,
or the woman spinning the thread of ^ which
it is composed, are not causes of a right of
property to the vower. The argument of
Haneefa is that it is customary for a wife to
spin her husband's cotton, and whatever is
customary, the same is meant and intended ;
and the act of the wife, in spinning the cloth,
is a cause of the husband's right in it ;* here
therefore, appears a reference of the Noozr, or
devoting vow, to the cause of a right of pro-
perty, wherefore the vow is valid ; and hence
the vower is forsworn upon the wife spinning
cotton which was his property at the time of
the vow. t
IF a man make a vow that "he will not
sleep on such a bed," and he should after-
wards sleep thereon, it having a sheet, blan
ket, quilt, or so forth, spread over it, he is
* According to the Mussulman law, any
change brought in the descriptive quality of
goods (such as turning cotton into thread;,
causes in itself a transfer ot the property from
the former proprietor to <ihe person who
makes or effects such change in it, indepen-
dent of any previous contract of purchase, the
person to whom such transfer of property is
made remaining responsible to the original
proprietor for the value of the goods in their
former state. (See usurpation of Property.)
t Here follows a long but very frivolous
case of vows against wearing Hoolea [super-
fluous ornamentsromitted in the translation,
as it turns entirely upon the acceptation of
the term Hoolea, which has been held to
consist of different articles at different times.
forsworn ; because such covering is also an
appertainence to the bed, and hence sleeping
on the covering may be said to be sleeping on
; such bed. But if another bed be laid upon
j the bed which is the subject of the vow. and
I the swearer sleep thereupon, he is forsworn,
j because a thing cannot be an appertainiince to
a similar thing, and hence sleeping upon this
, bed is not to be accounted sleeping upon the
I other.
IF a person swear that "he will not sit
upon the ground," and he should afterwards
j sit upon a carpet or mat spread thereon, he
is not forsworn ; because a person in such
case is not said to be sitting on the ground.
It is otherwise where the skirts of his gar-
ment only are between the ground and him,
as his garment is merely an appertainence to
himself, and hence is not to be considered as
the thing upon which he sits.
IF a man vow that "he will not sit upon
such a seat," and he should afterwards sit
thereupon wnen there is a covering spread
upon it, he is forsworn ; because the person
who sits upon that covering is considered as
the occup'er of that seat, in common usage,
as this is the usual way of sitting upon a
bench, or other raised seat. It is otherwise
where the seat which is the subject of the
vow has another seat set over it, and the
vower sits upon the upper seat, for then he
is not forsworn, because the second seat is
a fellow to the first, and a thing cannot be
an appertainence to a similar thing (as has
been already observed) ; sitting upon the
second seat, therefore, is not to be accounted
the same as sitting upon the first which
was the subject of the vow.
CHAPTER XII.
•
OF CVOWS CONCERNING STRIKING, KILLING,
AND SO FORTH
A vow made against striking a person is
not violated by striking that person when
dead ; and the same of a vow against clothing.
— IF a person make a vow, saying [to an-
other], "if I strike you, my slave is free/'
and the vower should strike that man after
his death, he is not forsworn ; because strik-
ing is restricted to life, as being the name of
an action which gives pain, and excites the
feel it gs of the person struck, which is not
possible with the dead. So also, if a man
were to say to another, "if I clothe you, my
slave is free," and he should after his death
clothe him, he is not forsworn ; because by
clothing, when it is indefinitely expressed, is
meant a complete transfer of property in the
article of clothing, and this transfer cannot
be made to a defunct ; unless when the voyer
by clothing simply meant covering, in which
case he would be forsworn, for here he in-
tends his words in a sense which they are
capable of bearing.). Some doctors sav that,
if a person were to make a vow in the Persian
tongue, saying to another, "if I clothe you,
BOOK VI.— CHAP. VIII.]
VOWS
173
my slave is free/' and he should clothe that
person after his death, he is forsworn ; be-
cause by this, in the vulgar idiom, is meant
simply covering )
Speaking to, going to. — IN the sam: man-
ner, if a man were to make a vow, gaying to
another, "if I speak to you," my slave is
free," or "if I come to you," and so forth,
and he should speak to, or go to, that peison
after his death, yet he is not forsworn ; be-
cause the intent of speaking is to impart
ideas, which death prevents the possibility
of; and "coming to thj dead" implies a
Zeearit, or visitation, which is not to the
dead, but to the shrine or mausoleum of the
dead.
Or washing a person. — IF a man make a
vow, saying to another, "if I wash you, my
slave is free," and he should wash that per-
son after his death, he is forsworn ; because
to wash simply signifies to ablute with a wish
to purification, which takes place in the
ablution of the dead.
A vow against beating is violated by any
act which causes pain, unless that act be
committed in sport. — IF a man make a vow
that "he will not beat his wife," and he
afterwards pull her hair, or seiz^ her by the
throat, or bite her with his teeth, he is for-
sworn ; because beating is the term for an
act which causes pain, and pain is excited by
the acts in question Some have asserted
that if these acts are done in the course of
mutual playing and dalliance, that vower is
not forsworn, because under such circum-
stances these bear the construction of jests,
and n&t of beating.
Vow of slaying a person who is already
dead incurs the penalty. — IF a man say, "if
I do not slay such an one, my wife is
divorced," and the person mentioned be not
living, and the vower himself knew this, he
is forsworn : because he here makes hiswow
respecting that life with hich GOD may
inspire the deceased anew ; and as this is
possible, his vow stands valid : and he is
then forsworn, because the slaying of that
person is in the common course of things
impossible. If, however, the vower be not
aware of that person's being already de-
ceased, he is not forsworn, because he has
here made his vow respecting that life which
he supposes to be existing in such a person,
but which, in the common course of things,
is no longer conceivable. There is a diver-
sity of opinion between Haneefa and Aboo
Yoosaf concerning this case, from the ana-
logy it bears to the case of the vessel of water ;
that is, if a man were to vow, "if I do not
drink out of this cup my wife is divorced,"
and there should happen to be no water in
the cup, he is not forsworn, according to
Haneefa and Mohammed, on account of the
invalidity of the vow, from the impossibility
of fulfilling it : but according to Aboo Yoosaf
he is forsworn ; because he does not hold the
possibility of fulfilment to be a condition of
the validity of the vow ; and so also in the
present case. In the case of the vessel of
water, however, there is no distinction made
with respect to knowledge ; that is the vower
(according to Haneefa and Mohan>med) is not
forsworn, whetner he be aware of the cup
having no water in it or not ; and this is
approved. It is otherwise in the case in
question, for there a distinction made, as
has been already mentioned.
CHAPTER XIII.
OF VOWS RESPECTING THE PAYMENT OF
MONEY
Difference, in a vow. between the terms
shortly, and in a length of time.— If a man
make avow, saying, "I will discharge my
debt to such an one shortly," this means
within less than one month ; and if he say,
"I will discharge my debt due to such an
one in a length of time," this means more
than a month ; because any space within
a month is accounted a short time, and a
month or any term beyond it is accounted a
long time ; and hence it is that where two
friends meet after a long separation, one will
say to the other "I have not seen you this
month 1" and so forth.
A vjw to aischarge a debt is fulfilled by
discharging it in light or base money, or in
money belonging to another.— IF a man make
a vow, saying, "I will discharge ^my debt,
owing to such an one, this day," and he
pay the debt upon that day accordingly, and
some of the money in which he has paid it
should afterwards prove light, or base, or
the right of another person, yet the vower is
not forsworn ; because lightness is only a
defect, which does not destroy the specie
(whence it is that if one of the parties, in a
contract of Sirf sale, should, through neg-
ligence, receive base metal in return for pure
metal, the exchange is completely fulfilled
—and so also, the seller is fully paid his
price, in a contract of Sillim sale, where he
receives base coin in place of pure coin) —
and such being the case, the condition of
fulfilment (namely the payment of the debt)
is accomplished : the vower, therefore, is not
forsworn : the receipt of the money, also,
where it is the right of a third person, is
valid nevertheless, and the fulfilment thus
established is not afterwards affected by the
restoration of the same to that third person.
(If, however, any of the money, after pay-
ment, should appear to be composed of
pewter, or tin, the vower is forsworn ;
because those metals are not regarded as
specie, whence, if through negligence they
should be accepted in a Sillim or Sirf con-
tract it is not a lawful payment.)
Or by means of liquidation. — IF, also, .the
vower should sell his slave to his creditor,
within the course of the day, in lieu of the
debt, and the creditor accept of the same,
the fulfilment of the vow it accomplished ;
because liquidation is one mode of dis-
174
VOWS.
[VOL. I.
charging debts ; — that is, the debt due to one
party ceases in lieu of the debt due to the
other (for the creditor is responsible for
whatever he receives, as he received it on its
own account by becoming proprietor of it,
and thus the same obligation rests upon the
creditor in bebalf of his debtor as already
rests upon the debtor in behalf of the,
creditor) ; a mutual liquidation, therefore,
takes place between them, and the debt of
each is remitted in lieu of the debt of the
other. (This mode of discharging the debt
by liquidation is because the actual dis-
charge is inconceivable, as the debtor doe^
not here offer anything but substance, and
the right of the creditors is not to substance,
but is merely to the debt which has been
incurred by the other ; and hence the
learned in the law say, "a debt must be dis-
charged with its like)." Liquidation, there-
for, being one mode of discharging debt, the
fulfilment of the vow, in the case in ques-
tion, is established, because the liquidation
is established upon the instant of the sale
of the slave.
OBJECTION, — The liquidation being estab-
lished upon the instant of sale, why is the
purchaser's seisin of the slave made a condi-
tion ?
REPLY. — Seisin is made a condition in
order that the debt due to the seller, namely,
the price of the slave, may be fully con-
firmed and established, because although it
be incumbent upon the purchaser from the
instant of slave, yet it stands within the
possibility of ceasing, as it is possible that
the article sold may perish before seisin ;
but by seisin the debt is fully confirmed and
established upon the purchaser.
But not by the gt/t of the creditor. — IF the
creditor make a gift of the debt to the debtor
within the course of the day, the fulfil-
ment of the vow is not established ; because
repayment has not taken place ; and also,
because the discharge of the debt is an act of
the debtor alone, and the gift of the debt
implies that the creditor relinquishes his
right to it, which is an act'of the creditor,
and not of the debtor, wherefore the con-
dition of fulfilment (namely, the act of the
debtor) is not accomplished. It is here to be
observed, however, that although the fulfil-
ment be not accomplished, yet the vower
is not forsworn, but the vow becomes void :
because the vow was restricted to that day,
and the creditor having remitted the debt
within that day, the swearer is thereby effec-
tually precluded from the fulfilment of his
vow before the expiration of its term, which
does not take place until the end of the
day, whence the vow become void, in the
same manner as in the case of the vessel of
water.*
A vow not to accept reimbursement of a
debt in partial payments it not violated until
the whole debt shall have been so received. —
If a debtor were to make an offer, saying to
*See ChapT VCante p. 162.
his creditor, "I will discharge my debt to
you, by partial payments," and the creditor
should reply, with an oath, saying, "I will
not thus receive my due by accepting part,
and not the whole," and he should after--
wards take a part of the debt, yet he is not
forsworn so long as he receives not the whole
debt thus by partial payments; because
here the point which produces a violation of
the vow is the receiving the whole debt, but
in partial sums, and that has not taken place.
— If the debt consists of articles computable
by weight, and the vower accept payment by
two or more weighings thereof, in such a
manner as not to be employed in any other
concern between these tw^ weighings, he is
not forsworn, although this be a partial
mode of receiving payment, because the re-
ceipt of the whole at once is sometimes in
any common way impossible, and hence any
debt of this description is an exception from
the present case.
IF a creditor make requisition from his
debtor of a part of what is due to him, sup-
pose two hundred Dirms, and the debtor reply
that "he has not so much money," and the
creditor disbelieves him, and he answer, "if
I possess more than one hundred Dirms, my
wife i> divorced," and it should happen that
he is, at the time of saying this, possessed of
fifty Dirms only, he is not forsworn ; because
his design, in this declaration, is merely to
express, his denial of being possessed of more
than one hundred Dirms ; and also, because
his exception of one hundred Dirms, involves
an exception of every component part or
proportion of one hundred ; and fifty is one
of these proportions ; wherefore fifty also
are excepted, and h*nce he is not forsworn,
And the rule is the same if instead of
"more thap one hundred Dirms/' he should
say^ "other than one hundred Dirms," or
"beyond one hundred Dirms," — because all
these terms equally express exception.
CHAPTER XIV.
OF MISCELLANEOUS CASES
A vow against dmng a thing, vnrestric-
tively pronounced, operates as a perpetual
inhibition — IF a man making a vow, saying,
"I will not do so and so/' it is necessary
that he for ever abstain from the commission
of that act, because he has expressed the
negative of the act 'generally, and hence the
prohibition is general, in consequence of the
negative being unrestrictively expressed.
A vow of performance is fulfilled by a
single instance of performance. — IP a man,
make a vow that "he will do such a thing,"
and he should once do it, his vow is fulfilled,
as he has not undertaken more than the com-
mission of that act in one single instance
unspecified, because such is to be understood
from the words by which he binds himself,
fulfilment is therefore established, upon his
once performing a single instance of the act
Bcofc XI ]
TROVES
saying, " I took it for the owner,"— and the
owner denying this, — indemnification is due,
according to Hanetfa and Mohammed. Aboo
Yoosaf says that indemnification is not due,
and that the finder's declaration is to be
credited, as appearances testify in his behalf,
because it is probable that his intention was
virtuous, and not criminal. The argument
of Haneefa and Mohammed is that the finder
has already acknowledged the fact which oc
casions responsibility (namely, his takina the
property of another), and afterwards pleads
a circumstance in consequence of which he is
discharged from responsibility, by declaring
that he had taken the property for the
owner : but as this is a doubtful plea, he is
not discharged from responsibility : and with
respect to what is urged by Aboo Yoosaf,
that " appearances testify in the finder's
behalf," they reply that in the same manner
as .appearances argue that the finder took
the property for the owner, so do they like-
wise argue that he has taken them for him-
self, as it is probable that a person who
performs acts with respect to property does
so for himself, and not for another ; and
hence, as appearances on both sides lead to
opposite conclusions, they arc {on both sides
dropped.
The trove is sufficiently witnessed by the
finder's notification of it to the bystanders —
IN calling people to witness it suffices that
the finder say to the bystanders " If ye
hear of any one seeking for this trove pro-
perty, direct him to me; " — and this,
whether the trove property consist of a
single article, or of numerous articles, be-
cause, as the term Lookta is a generic noun,
it applies either to a single article, or to
several different articles
A trove under ten dirms must be advertised
for some days , and one above ten dirms, for
a year — IF the trove property be of less
value than ten dirms, it behoves the finder
to adverties it for some days— that is, for sp
long as he deems expedient, — but if it ex-
ceed ten dirms in value, be must advertise it
fot the space of a year. The compiler of the
Hedaya remarks that this is one opinion
from Haneefa. Mohammed, in the Mabsoot,
maintains that the finder should advertise it
for the space of a year, whether the value be
great or small (and such is also the opinion
of Shafei), as the Prophet has said "the per-
son who takes up a trove property must
advertise it for a year," ^-without making
any distinction between a small property and
a great property. The reason for the former
opinion is that the fixing it at the space of a
year occurred respecting a trove property of
the value of one hundred deenars, which are
equal to a thousand dirms; now ten dirms,
or anything above that sum, are the same as
a thousand dirms with respect to the ampu-
tation of a thief's hand, or the legalizing of
generation,* whence it is enjoined to adver-
*Ten dirms is the smallest dower admitted
in marriage.
tise a trove property for a year, out of
caution ; but anything short of ten dirms
oes not resemble a thousand dirms with
respect to any of those particulars, whence
this point is left to the discretion of the
finder of a property of that value. Some
allege that the approved opinion is that there
is no particular space of time, this being left
entirely to the discretion of the finder, who
must advertise the trove property until he
see reason to conclude that it will never be
called for by the owner, and must then
bestow it in alms. All that is here advanced
proceeds upon a supposition that the trove
property is of a lasting and unperishable
nature: but if it be of a perishable nature,
and unfit to keep it must be advertised until
it is in danger of perishing and must then
be bestowed in alms. It is proper to remark
that the finder must make advertisement of
the trove property in the place where he
found it, and also in other places of public
resort, as by advertising it in such places
it is most probable that the owner may re-
cover it
A trove of an msigm/icant nature may be
concerted by the finder to his own use. — IP
the trove property be of such a nature as that
it is known that the owner will not call for it
(such as date-stones, or pomegranate skins),
it is the same as if the owner had thrown it
away, insomuch that it is lawful to use it
without advertisement : but yet it still con-
tinues the property of the owner,* as transfer
to a person unknown is not valid.
If the owner do not in due time appear, the
finder may either bestow the property in alms,
or keep it for the owner. — IF the finder duly
advertise the trove property, and discover
the proprietor, it is well :— but if he cannot
discover him, he has two things at his option;
—if he choose; he may bestow it in alms, be-
cause it is incumbent to restore the property
to the owner as far as may be possible, and
this is to be effected either by giving the
actual property to the owner, where he is dis-
covered or by bestowing it in alms, so as that
a return for it (namely, the merit) may reach
the owner, as he will assent, upon hearing of
its having been so bestowed : or if the finder
choose, he may continue to keep the property,
in hopes of discovering the owner and restor-
ing it to him.
Where the trove has been bestowed in alms,
the owner may either ratify the alms-gift. —
IF the finder of a trove property discover the
owner, after having bestowed it in alms, the
owner has two things at his option : — if he
choose, he may approve of anxi confirm the
charity, in which cast he has the merit of it;
because, although the finder has bestowed it
in alms by permission of the LAW, yet as the
owner has not consented to his so doing, the
alms- gift remains suspended upon his con-
sent to it : as the pauper, however, becomes
• That is to say, although it be lawful for
the finder to use it, yet the owner has a claim
upon him for the value.
210
TROVES
[VOL. II.
endowed with the property in question pre-
vious to his consent, it does not remain sus-
pended upon the continuence of the subject*
(contrary to a case of sale by an unauthorized
person ; in other words, if an unauthorized
person execute a sale, the validity of it de-
pends upon the continuance of the subject, f
that is, of the articles sold, because the pur-
chaser does not become endowed with it until
after consent) :
Or take indemnification from the finder. —
OR, if the owner choose, he may take an in-
demnification from the finder, because he has
bestowed a property upon the poor without
consent of the proprietor.
OBJECTION — It would appear that indem-
nification is not in umbent upon the finder,
as he has bestowed the property in alms, with
the consent of the LAW.
REPLY. — His bestowing it in alms, with
the consent of the LAW, does not oppose the
obligation of responsibility, in behalf of the
right of the owner ; in the same manner as
where a person eats the property of another
when perishing with famine ; for in this case
he owes indemnification, although he be per-
mitted by the LAW to eat another's property
in such a situation ; and so also in the case in
question.
Or from the pauper upon whom it has been
so bestowed. — OR, if the owner choose, he
may take indemnification from the pauper,
where the trove property has perished in his
hands, — because he has taken possession of
the property of another person without his
consent.
Or, if still existing, may claim restitution
of it. — OR, if the property be remaining in
the hands of the pauper, the owner may take
it from him, as he thus recovers his actual
property.
OBJECTION. — It has been already stated
that the pauper becomes endowed with the
property previous to the owner's consent ;
whence it would appear that the owner has
no right to restitution.
REPLY. — Establishment of property does
not oppose a right to restitution ; in the same
manner as a donor is at liberty to resume his
gift, although the donee have become pro-
prietor upon taking possession of it.
Stray animals ought to be secured and taken
care of for the owner. — IT is laudable to
secure and take care of strayed cattle ; such
as oxen, goats, or camels. Malik and Shafei
maintain that where a person finds strayed
camels or oxen in the desert, J it is most eli-
* " Upon the continuance of the subject."
That is, upon the continuance of the property
in the hands of either the donor or the pro-
prietor. .
•JThat is, upon the continuance of the pro-
perty, which is the subject of the sale, in the
hands* of the owner.
J Arab. Sihra. This is the term applied in
general to the extensive and barren deserts
of Arabia ; it also means any waste or unen-
cloicd land. /
gible to leave them, the seizing of them
being abominable :— and concerning the se-
curing of strayed horses there is the same
difference of opinion. The argument of Malik
and Shafei is that illegality is orginally con-
nected with taking the property of another,
which is not allowable except where there is
apprehension of its perishing if it be not
taken ; but where a trove property is of such
a nature ac to be capable of repelling beasts
of prey (such as oxen, who may repel them
with their horns, or camels and horses, who
may repel them with their hoofs or their
teeth), there is little apprehension of its
perishing : it is still however to be suspected
that it will perish, and hence it is declared
abominable to secure it, and most laudable to
leave it * The argument of our doctors is
that the animals in question are trove pro-
perty, and there is reason to apprehend their
perishing, whence it is laudable to secure
and adverties them, in order that the pro-
perty may be preserved, in the same manner
as the securing of strayed goats is laudable
according to all.
But he is not responsible to the finder for
the subsistence, unless it be furnished by order
of the magistrate. —!F, moreover, the finder
give subsistence to troves of this description
without authority from the magistrate, it is
a gratuitous act, because of his not possessing
any authority : but if he give subsistence by
order of the magistrate, it is a debt upon the
owner, because the magistrate is endowed
with authority over the property of an ab-
sentee for the purpose of enabling him to act
with kindnestf to the absentee ; and the
giving of subsistence is a kindness on some
occasions as shall be demonstrated elsewhere.
Who, if they be fit f>r hire, must direct
them to be hired out for that purpose.— IF
the question respecting the subsistence of the
troves be brought before the magistrate, he
mu^t inquire into the particulars ; and if the
troves be capable of hire (such as horses,
camels or oxen), he must order them to be
hired out, and subsisted from their hire, be-
cause in this case the animals continue the
property of the owner without subjecting him
to any debt (and a similar judgment must be
passed with respect to fugitive slaves) :
Or, if unfit, to be sold and the price re-
tained for the owner — BUT if the troves be
unfit for hire (such as goats or sheep), and it
be apprehended that, if the finder were to
subsist them, the subsistence would equal
their value, the magistrate must direct them
to be sold, and the price to be kept in such a
manner that the troves may be virtually pre-
* This is strange reasoning ; it may per-
haps have some reference to predestination ;
i.e. as those animals seem destined to
perish, it is impious to attempt to prevent
.his destiny.
t By the term kindness is here and else-
where meant a due attention to the interest
of the party concerned.
BOOK XL]
TROVES
211
served, in their value, because the preserva-
tion of them in substance is impracticable.
Unless he think fit to order them a subsist-
ence, which is in that case a debt upon the
owner. — IF, however, the magistrate deem it
fit to give subsistence; he must adjudge sub-
sistence to be given, making the same a debt
upon the owner of the animals, — because the
magistrate is appointed for the purpose of
exercising humanity and kindness ; and the
giving of subsistence is a kindness both to
the owner and to the finder; — to the owner,
because his property is thus preserved to him
in subsistance : and to the finder, because the
subsistence he furnishes is thus made a debt
upon the owner.
But subsistence must not be ordered for
more than a few days — THE learned in the
law, however, have said that the magistrate
is to issue the order for subsistence only for
the term of two or three days, in hopes that
the owner may appear; and that if the
owner do not appear, he must then order the
troves to be sold, because to afford subsistence
to them for a continuance would be to eradi-
cate the property, whence there would be no
kindness in affording them subsistence for a
long term (that is, for a term beyond three
days).
Noi unless the finder produce evidence in
proof of the trove. — IT is observed, in the
Mabsoot, that the production of evidence is
requisite,— -that is, the magistrate is not to
give an order for subsisting the animal, ex-
cept where the finder produces evidence to
prove that "such an animal is a trove;" and
this is approved, because it is possible that he
may have obtained possession of the animal
by usurpation, and in a case of usurpation
the magistrate does mt give an order for sub-
sistence, but directs the thing usurped to be
restored to the owner, except in a £ase of
deposit, which cannot be proved without
evidence; the production of evidence, there-
fore, is essentially requisite, in order that the
actual state of the case may be ascertained.
OBJECTION — Evide ice is not admissible
without an adversary ; and in the case in
question there is no adversary :— how, there-
fore, can evidence he admitted ?
REPLY. — The evidence, in the present case,
is not required for the purpose of a judicial
decree, so as to make the existence of an
adversary a necessary condition.
If the finder have no evidence, the order
for subsistence must be conditioned upon the
veracity of his declaration — IF the finder
say: "I have no evidence of the animal
being with me as a trove " still as it is
apparent that it is a trove, the magistrate
must say, "Subsist this animal, provided
your declaration be true!" and then, if the
finder's declaration be true, he will have a
claim upon the owner for the subsistence
but not if he be an usurper.
The finder has no claim upon the owner for
the subsistence, unless the magistrate ex-
pressly declare, in his order, that the owner
is responsible for the same;— It is here
necessary to remark that what is^ advanced
above, that " the magistrate must adjudge
subsistence to be given, making the same
a debt upon the owner of the animals/
plainly implies that the finder will have no
claim upon the owner for such subsistence,
upon his appearing at a time when the trove
has not yet been (fold, unless the magistrate,
in his decree, direct rtiat " he shall have
such a claim upon him;" — but if the magis-
trate should not thus have rendered the
subsistence a debt upon the owner, the finder
would have no claim upon him for it: — this
is approved doctrine. Some say that the
finder has a claim upon the owner for the
subsistence, where he furnishes it by order
of the magistrate whether the magistrate
may have explicity declared the same to be
a debt upon the owner or not.
But he may detain the trove from the owner
until he be paid for the subsistence;— UPON
the owner appearing, the finder is at liberty
to detain the trove, until he pay him for the
subsistence; because the finder has preserved
the trove, and kept it alive by subsisting it.
The case is therefore the same as if the owner
had obtained his right of property through
the finder ; and consequently the trove re-
sembles an article of sale ; that is, in the
same manner as the seller is entitled to
detain the article sold until the purchaser
produce the price, so also, the finder is
entitled to detain the trove until the owner
produce an equivalent for the subsistence.
The finder, moreover, resembles a person
who apprehends and brings back a fugitive
slave, that is, jn the same manner as that
person is entitled to detain the slave on
account of a recompense (since it may be
said that he has preserved him), so also, the
finder is a liberty to detain the trove on
account of the subsistence to be afforded to
it, since he has thus preserved it alive.
//, however, the trove perish in the finder's
possession after detention, he has no claim.
£T i8 to be observed that the debt for subsis-
tence is not extinguished by the circums-
tance of the trove perishing in the hands
of the finder, before his detention of it : but
it is extinguished by the trove perishing in
li, hands after detention, because by deten-
tion it is placed in the same state as a pledge,
and as debt is extinguished by the destruc-
tion of the pledge, so in the same manner the
debt for subsistence is extinguished by the
trove perishing after detention.
Troves of unlawful articles are to be adver-
tised and di posed of in the same manner as
those of lawful articles.— TROVES of lawful
articles and of unlawful are the same, in
this respect, that the finder is to advertise
them for a year. Shafei contends that an
unlawful article is to be advertised until
the owner appear, because the Prophet has
declared "A trove of a FORBIDDEN thing is
not lawful to any but the MOONSHID (that
is the claimant or the owner): and it thus
appearing that the trove is unlawful to any
except the owner, it is indispensable that
212
TROVES
[VOL II.
the finder advertise it until the owner ap-
pear; and he restore it to him ; for it must
not be bestowed in alms. The arguments of
our doctors upon this point are twofold : —
FIRST, the Prophet has said, "Advertise the
trove by its marks,* and then continue to
advertise it for a year," in which no distinc-
tion is made between a lawful article and an
unlawful :— SECONDLY: the unlawful article
in question is a trove : and if, after the
expiration of the term of advertisement, it
be bestowed in alma, the owner's right of
property in it still continues in force ; f and
such being the case, the finder may be&tow
it in alms, after the expiration of the term
aforesaid, in the same manner as any other
troves. — With respect to tae saying quoted
by Shafei, the explanation of it, that a
trove of a forbidden thing is lawful only to
the Moonshid (that is, to the advertiser, or
person who makes notification of it), and
that it is not lawful for any person to take it
for his own use.J A trove of a forbidden
thing is particularly adverted to in this say-
ing, because such a trove must be adver-
tised, although it appear to bz the property
of strangers (who are continually passing
through the country), and if it were not for
such an injunction, people might apprehend
that, as being the property of strangers who
will probably never return to demand it, the
advertising is useless.
The claimant of a trove must prove his
right by evidence ; but it may be delivered to
him upon his describing the tokens of it: in
this case, however, the magistrate cannot
compel a surrender. — IF a person appear,
and lay claim to a trove, it is not to be given
to him until he produce evidence. If how-
ever, the claimant describe the tokens of the
trove, by mentioning the weight of the dirms
(for instance), or the purse in which they
are contained, and its tying, it may be law-
fully given to him : but the macistrate is
not to use any compulsion upon this point.
Malik and Shafei allege that the magistrate
may compel the finder to give up the trove ;
because he merely disputes with the claimant
the possession of the trove, and not the right
of property in it ; and such being the case, a
description of the tokens is made a con-
dition as the parties dispute concerning the
possession, but the production of evidence
is not made a condition, as they do not
dispute concerning the right of property.
• Literally, " advertise the BAG or PURSE
containing the trove, and its tying and then
advertise the TROVE for a Y!AR."
fAs he still has a claim of restitution,
(See p 2tO)-
JThe dif&rence here turns solely upon
the sense in which the term Moonshid is to
be taken. Moonshid literally signifies a
person who points to the place where any
thing is lest, — • description which applies
equally to the loser or the finder. Shafei
taxes it in the former sense, and Haneefa in
the latter.
The argument of our doctors is that
possession or seisin is a right which may
be desirable, in the same manner as actual
property in a thing, wherefore no person
is entitled to claim the possession of it but
through proof, that is, through evidence,
in the same manner as no one is entitled to
claim the property in it, but through evi-
dence :— but yet it is lawful for the finder to
surrender the trove to the claimant, upon his
describing the tokens, because the Prophet
has said, ''If the owner appear, and describe
the thing which contains the trove, and the
quantity of the contents, let the finder sur-
render it to him :" — that is, it is allowable to
surrender it to him ; for the ordinance here
is merely of a permissive nature, since it
appears, in the Hadees Mashhoor, that the
claimant must produce evidence, and the
defendant must swear, — vxhich evinces that
the command contained in this saying is of a
permissive and not of an injunctive nature,
otherwise it wouM not be incumbent upon
the claimant to produce evidence.
The finder surrendering a trove upon de-
scription of the tokens, without evidence,
must take security from the claimant. —
WHEN the claimant describes the tokens of
the trove, without producing evidence, and
the finder surrenders it to him, it is incum-
bent on the finder to take security from him
out of caution ; * and concerning this point
there is no difference of opinion (according
to the Rawayet Saheeh) because here the
finder requires the security for himself, f
This is contrary to the case of security re-
quired in behalf of an absentee heir ;— that
is, where the Ka7.ee distributes the effects of
a person deceased among such of his heirs as
are present,— in this case there is a difference
of opinion conceding his requiring security
of the present heirs, in behalf of an absent
heir, provided such should hereafter appear —
for, according to Haneefa, security is not
required in behalf of the absentee heir, but
according to the two disciples security is so
required.
The finder is not to be compelled to surren-
der the trove, although he acknowledge the
right of the claimant. — IF any person claim a
trove and the finder verify his claim, yet
some say that the Kazee must not compel
him to surrender the trove -.—similar to the
case of an agent empowered to take posses-
sion of a deposit ; in other words, if any per-
son plead that " he is an agent empowered to
take possession of a deposit from such a
person." and the trustee verify his declara-
tion, yet he is not compelled to surrender the
deposit to the agent ; and so here likewise
Some, on the contrary, say that compulsion
*Lest another person should afterwards"
appear, and prove the trove to belong to
him, by evidence. B
t He takes the security in his own behalf,
and not in behalf of any future possible
claimant, who, if he should appear/has re-
course to him for restitution.
Book XI]
TROVES
213
may be used, because in the case in question,
the owner is a person unknown, whereas, in
the case of a deposit, the owner of the deposit
is a person who is known, whence the pos-
sessor cannot be compelled to surrender it to
the agent, hen^t being the owner.
A trove cannot be bestowed in alms upon a
rich person. — THE finder must not bestow the
trove in alms upon a rich person, because the
Prophet has said, "If no owner of a trove
property appear, BESTOW IT IN ALMS ;" — and
it is not lawful to bestow alms upon an
opulent person ; a trove, therefore, resembles
Zakat.
Nor can the finder (if rich) lawfully con-
vert it to his own use. — IF the finder be in
opulent circumstances, it is not lawful for
him to derive any advantage from the trove.
Shafei affirms that this is lawful/ because the
Prophet said to Yawabee, who had found an
hundred deenars, "If the owner come, sur-
render the trove to him ; but if not, make
use of it ;" — and yet Yawabee was in opulent
circumstances. Moreover, the use of the
trove is allowed to the finder, where he
happens to be in indigent circumstances,
only in order that this permission may be a
motive to him to take up the trove, in such a
manner that it may be preserved ; in other
words, the finder, in hope of this advantage,
will take up the trove from the ground, and
it will thus be preserved from perishing.
Now, the poor and the rich are both alike in
this particular ; and consequently, the finder
who is rich may lawfully convert it to his
own use, in the same manner as one who is
poor. The argument of our doctors is that a
trove is the property of another, and hence it
is not allowable to derive an advantage from
it without his permission, because the pas-
sages in the sacred writings which prohibit
the enjoyment of another's property are
generally expressed — The use, moreover, is,
permitted to the poor (contrary to what
analogy would suggest), in consequence of
the saying of the Prophet already mentioned,
and of the opinion of all the doctors ; and
therefore, any others than those remain
under the original predicament, which is an
inhibition of the use. — With respect to what
Shafei urges (that "the use of the trove is
allowed to the finder where he happens to be
in indigent circumstances, only in order that
this permission may be a motive to him to
take up the trove, so that it may be preserved,
in which particular the rich and the poor are
both alike)/' we reply that this reasoning is
not admitted ; because a rich person may
sometimes take up a trove from the ground
under the idea that he may himself possibly
become a pauper within the term prescribed
for advertisement and a poor person, on the
other hand may sometimes neglect to take
up a trove, under the idea that he may,
possibly become rich within that term ; what
Shafei urges, therefore, under this idea, is
no ground of argument. With respect to
the instance adduced of Yewabee, it is to be
considered that he converted the trove to his
own use by permission of the Imam ; and the
use of a trove, by permission of the Imam, is
lawful .
The finder, if poor, may convert the trove
to his own use, or, if iich, may bestow it upon
his poor relation. — IF the finder of a trove be
poor, h e need not hesitate to make use of the
trove, s ince * in such a disposal of it a kind-
ness is performed both to the owner and to
the finder. f Upon the same principle, also,
it is lawful to bestow it upon any other poor
person ; thus if the finder be rich, and his
parents, children, or wives poor, he may
bestow the trove in alms upon them, for the
reason above alleged.
BOOK XII
OF IBBAK, OR THE ABSCONDING OF SLAVES.
[Slavery being abolished, this subject has
been omitted ]
BOOK XIII.
OF MAFKOODS, OR MISSING PERSONS.
Definition of Mafkood. — MAFKOOD, in its
literal sense, means lost and sought after.
In the language of the LAW it signifies a
person who disappears, and of whom it is not
known whether he be living or dead, or
where he resides.
When a person disappear st the Kazee
must appoint a trustee to manage his affairs.
— IF a person disappear, and it be not known
whether he be dead or alive, or where he
resides, the Kazee must appoint some person
to look after his property ; ahd to manage his
affairs, and maintain his rights : because the
Kazee is appointed for the purpose of attend-
ing to the interests of all such as are unable
to attend to their own concerns ; and as a
missing person is of this description (whence
he stands in the same predicament with an
infant or an idiot), it is for his interest to
appoint a person to look after his property
and manage his affairs.
Who is empowered to take possession of all
acquisitions arising to him. — By what is above
stated, that "the person appointed by the
Kazee shall maintain the rights of the missing
person," is meant that this person shall take
possession of all acquisitions arising to the
missing person from his tenenents, lands, or
effects, and also of such debts as are acknow-
ledged by his debtors ; — and that he shall also
prosecute for debts owing in consequence of
•After having duly advertised it, as before
directed.
tBecause the finder thus obtains a relief
from his wants, and the owner has the merit
of the charity.
2H
MISSING PERSONS
[VOL. II.
contracts entered into by himself* and which
are disputed by the debtor, as the rights of
the contract appertain to him, he being the
contractor.
But cannot prosecute for disputed debts,
or deposits. — BUT he is not to prosecute on
account of debts owing in consequence of any
contract entered into by the missing person,
and which are disputed by the debtors ; nor
can he prosecute for the missing person's
share in lands or effects, in the hands of a
third person, who disputes the same : because
he is neither the principal, nor the deputy of
the principal, being no more than merely an
agent for seisin on the part of the Kazee,
who is not empowered to prosecute, accord-
ing to the united opinion of our three doctors;
—for their onl> difference of opinion is with
respect to an agent for seisin appointed by
the proprietor himself, in a case of debt
whom Haneefa holds to be empowered to
prosecute, whereas the two disciples deny
him this power. — The reason of this is that if
it were lawful for the Kazee's agent for
seisin to prosecute, and he were to prosecute
accordingly, and the debtor to produce evi-
dence proving that the missing person had
already received the debt, or discharged it,
the Kazee must necessarily pass a decree
accordingly, and this would be a decree
against an absentee, which is unlawful. —
It is not lawful for him, therefore, to prose-
cute, except where the Kazee is of opinion
(with the sect of Shafei), that it is lawful to
pass a decree against an absentee, and he
directs accordingly, in which case it is
lawful, because a decree is of where it
is passed in any case concerning which there
is a difference of opinion.!
OBJECTION. — The point upon which the
difference of opinion rests, on the present
occasion, is the decree itself ; and hence the
case requires that the validity of the decree
be suspended upon the warranty of another
Kazee. J
REPLY. — The decrer itself is not what the
difference of opinion rests upon in the
present instance, but the cause of the decree,
namely, the evidence, the point of difference
being, merely, whether evidence, where
there is no actual prosecutor, amounts to
•On behalf of the Mafkood or missing
person*
fThat is, where the Kazee may happen to
dissent in opinion from the Haneefite doctors.
The Arabic copy simply «says ' 'in which case
it is lawful, because the KAZEE is a person
supposed to be possessed of judgement and
learned in the LAW." What is here ad-
vanced affords a striking instance of the
power of a Kazee, and the latitude allowed
to him in passing his decrees.
^Because this Kazee being himself a
representative of the Mafkood, or missing
person, and consequently a part concerned
in the decree, cannot carry it into effect,
without such authority.
proof? — and where the Kazee is of opinion
that the evidence amounts to proof, and
directs accordingly, his decree is legal and
valid.
The missing person's perishable effect
must be told. — It is to be observed that if
there be, among the effects of the missing
person, articles, of a perishable nature (such
as fruit, and so forth) the Kazee must sell
them : because, as the preservation of them
both in substance and in effect is imprac-
ticable, they are to be preserved in effect.
But not those which are unperishable. —
BUT he is not to sell any articles not liable to
perish, either on account of subsistence, or
for any other purpose, because the Kazee is
invested with authority, with respect to an
absentee, for the conservation of his property
and hence it is incumbent upon him to pre-
serve it in substance where that is prac-
ticable.
Subsistence must be afforded, out of the
effects, to the parents and children of the
missing person; and to all others who ; with
out a decree, were entitled to it during his
presence — THE KAZEE is to give subsistence
to the wife and children of a missing person
out of his property. This rule is not re-
stricted to his immediate children, but
extends to all related to him in the time of
paternitv, such as the father, the grand-
father, the son's son, and so forth ; for it is
a rule that every person entitled to a sub-
sistence from the property of the missing
person whilst he was present, independent
of an order from the Kazee (such as his
infant children, and adult daughters, or
adult sons who are disabled) must in his
absence be furnished with a subsistence, out
of his property, bv the Kazee : — but to those
who, whilst the missing person was present,
had no r,i«ht to subsistence independent of
an order from the Kazee (such as brothers,
sisters, or maternal uncles or aunts), no sub-
sistence is, in his absence, to be furnished by
the Kazee, because these are entitled to a
subsistence only through a decree, and a
decree against an absentee is illegal. By
the property of the missing person, as here
mentioned, is meant money, because the
right of the above persons is meat and
clothing, and where those are not to be
found among the missing person's effects,
there is a necessity for the Kazee to decree
the value ; and the value consists of cash.
Bullion (that is, uncoined sold and silver) is
in this respect subject to the same rule with
cash, since that also admits of being given
as value, in the same manner as cash. This
is where the Kazee has money in his hand.
Where there are no effects in the Kazee's
hands, he may furnish the subsistence from
debts or deposits, the property of the missing
person — IF, however, there he no money in
his hands, but there happen to be some in
trust, in the hands of another persons, — or a
debt owing from some other person, the
Kazee is in that case to provide the subsis-
tence from such deposit or debt, where the
BOOK XIII.]
MISSING PERSONS
215
trustee or debtor acknowledges the deposit
or debt, and also the marriage or parentage,
This acknowledgment, however, is neces-
sary only where these points are not fully
known to the Kazee ; for if they be fully
known to him, the acknowledgment is not
requisite. — If, on the other hand, some of
these points be known (such as the debt
and the deposit), and others unknown (such
as the marriage or the parentage), or vice
versa, in this case the acknowledgment is
requisite with respect to that which is
unknown : this is approved. If the trustee
or debtor furnish the subsistence without an
order from the Kazee, the trustee is respon-
sible for such disbursement, and the debtor
is not discharged from his debt, because in
so doing they have not paid anything either
to the owner or to his representative : con-
trary to wh^re they furnish subsistence by
order of the Kazee, because he appears as
representative of the owner.
IF the trustee or debtor deny the deposit
or debt, together with the marriage and
parentage, or if they deny the marriage and
parentage only, in this case the persons en-
titled to subsistence cannot be admitted, as
plaintiffs, to prove and establish those points
which the trustee or debtor denies ; because
a claim is not admitted, unless it be laid
against either the principal, or his represen-
tative ; and the principal, in the present
instance, is absent ; and the debtor or
trustee are not either actually or virtually
his representative ? — they evidently are not
actually so, because he has not constituted
any person his agent ; nor are they virtually
so. because, in the prosecution of the plain-
tiff's claim against the absentee, the specifi-
cation of the occasion * of the claim is no
good plea for the establishment of his rieht
(namely, subsistence from the property in
the debtor's or trustee's hands), — since, in
the same manner as subsistence is due from
that property, it is also due from any other
property belonging to the missing person :t —
the debtor or trustee are therefore not vir-
tually the missing person's representatives.
The Kazee cannot effect a separation be-
tween a missing person and his wife. — THE
Kazee is not empowered to effect a separa-
tion between a missing person and his wife.
Malik maintains that, at the expiration of
four years the Kazee may pronounce a sepa-
ration, after which the wife is to observe an
edit of four months and ten days, such b^ing
the edit of widowhood. — and she may then
marry whoever she pleases ; becauses Omar
thus decreed with respect to a person who
disappeared from Medina ; and also, because
a missing person, by his absence, obstructs
the woman's right :-- -the Kazee, therefore
must pronounce a separation between the
parties after the lapse of a certain time,
because of the analogy thin case bears to
that of Aila, or of impotence ; — that is to
say, in the same manner as, in a case of Aila,
an irreversible divorce takes place at the end
of four months,* on account of the husband,
by Aila, obstructing his wife's right, — and in
the same manner also as in a case of impo-
tence, the Kazee pronounces a separation f
at the end of the year, on account of the
husband thus obstructing his wife's right, —
so likewise, in the case in question, the* Kazee
must pronounce a separation, for the same
reason :— and the case of absence being
equally analogous to a case of Aila and
of impotence, the length of the term is ad-
justed with a regard to both, by adopting
the number four from Aila, and the term
year from impotence, so as to make practice
in this particular accord in the same manner
with the other two. The arguments of our
doctors upon this point are twofold. — FIRST,
the PROPHET once declared, with respect to
the wife of a missing person, "She is his
wife until such time as his DEATH or DIVORCE
shall appear :" and Alee also said, with re-
spect to the wife of a Mafkood. "She is a
mourner, wherefore she must be patient, until
she be perfectly informed of his death, or of
his having divorced her." — SECONDLY, the
existence of the marriage is notorious ; and
as the mere disappearance of the husband is
not a sufficient cause of separation, and his
death be a matter of uncertainty, it follows
that the marriage cannot be dissolved, because
of the doubt. With respect to the authority
of Omar, as cited by Malik, we reply that he
afterwards adopted the opinion of Alee — As
to what he farther urges respecting the
analogy between the case in question, and
a case of Aila, it is not admitted ; because
*Aila, in times of ignorance, was an imme-
diate divorce, but the law afterwards con-
stituted it a deliberate divorce'! and hence
it is that Aila occasions a separation. § — In
the same manner also the analogy urged by
him between the case in question and a case
of impotence is not admitted ; because where
a husband disappears, it is possible that he
may reappear, whereas it is not possible that
an impotent person should recover his virility,
after his impotence has continued for above
a year.
The missing person is to be declared a
defunct : — WHEN one hundred and twenty
years shall have elapsed* from the day of the
missing person's birth, he is to be declared
•Meaning, the circumstance of "the trustee
or debtor having property belonging to the
missing person in his hands," which is not
admitted as a plea on behalf of the plaintiff,
since his subsistence is equally due from any
other part of the missing person's property,
•See vol. I. p. 109.
fSee vol I. p. 126.
JArab. Talak Mowjil, meaning a divorce
which is to take place within a certain time. •
§ That is to say, it is for this reason, and
not because of the husband obstructing his
wife's right, as supposed by Malik.
216
MISSING PERSONS
[VOL. II.
defunct.* — The compiler of Hedaya remarks
that Hassan has related this as an opinion of
Haneefa. According to the Zahir Rawayet,
this point is to be determined by the decease
of the co-evals of the missing person, or of
his equals— that is, those who are known to
resemble him in health and habits of body.
It is recorded from Aboo Yoosaf that the term
ip one hundred years. — Some of the learned,
again, fix it at ninety years. Analogy re-
quires that the term should not be fixed at
any particular period, such as one hundred
years, or ninety years, since to fix a time
merely from judgment or opinion is illegal :
but yet it is requisite that it be fixed by some
specific standard, such as the demise of the
missing person's co-evals, because, if no
criterion whatever were established, his
decease could never be declared.
At the end of ninety years from his birth.
— THE benevolence of the law, however,
suggests that the term be fixed at ninety
years, as this is the shortest fixed term men-
tioned, f and it is difficult to ascertain any-
thing respecting the circumstances of the
missing person's co-evals or equals.
When his wife is to observe an edit of
widowhood. — UPON the death of the missing
person being duly declared, his wife must
observe her edit for four months and ten
days from the date of the declaration, such
being the edit of widowhood.
And his property is divided among his living
heirs. — AND his property is to be divided
among such of his heirs as are then living ;
the case, therefore, is the same as if he had
actually died upon the instant of the decla-
ration, and hence any person who died pre-
vious to the declaration does not inherit of
him.
A missing person's right of inheritance
from a relation cannot be established during
his disapperance. — IF the relation of a mis-
sing person die during his disappearance,
the missing person is not an heir, because
his existence at the time is established
merely from circumstances, as having been
once known, and consequently accounted to
continue so long as nothing appears to the
contrary. Now mere circumstantial evidence
is but weak, and therefore incapable of con-
stituting proof to a claim (that is, to the
establishment of a thing as yet unestab-
lished) : although it constitute proof sufficient
for repulsion (that is to say, to prove the
continuance of a thing already established).
But his portion is held in suspense. — WITH
respect to the expression " the missing per-
son is not an heir," it means that, whatever
may be his portion of inheritance, he does
not obtain a property in it, but it is held in
suspense ; because his being in life is doubt-
•This is the rule in the Soona. The com-
piler of the Hedaya, however, has fixed it at
ninety years, as appears a little below.
t By any of the law doctors or commen-
tators.
ful ; and this is a sufficient cause of sus-
pense.
And at the end of the ninty years (if he do
not appear in the interim) , is divided among
the other heirs.— IP, therefore, he afterwards
appear to be living, it goes to him ; but if
there be no evidence of his being in life
when ninety years have elapsed, his portion,
which has been so suspended, is then to be
distributed among those who were heirs to
the original proprietor at the perio i of his
demise, as in the case of embryos in the
vomb. In the same manner, also, if a per-
son make a bequest to a missing person, and
the testator die, the bequest does not take
place, but is held in suspense, because be-
quest stands upon a similar footing with
inheritance.
Disposal of inheritance in case of a co-
heir.—IT is a rule that if there be another
heir beside the missing person who is not
entirely precluded by the missing person,
but whose right is diminished by his inter-
vention, this heir is to receive that which is
the least of the two portions of inheritance
and the remainder is held in suspense. If,
on the other hand, there be an ther heir, who
is entirely precluded by the missing person,
no part of the inheritance is to be paid to
him, but the whole portion of inheritance
must be held in suspense. An example, in
illustration of this case, is as follows : — A
person dies, leaving two daughters, and a
son who has disappeared ; and also a son's
son, and a son's daughter ; and his estate is
in the hands of a stranger : and the above
heirs and the stranger, all agree that the
son of the deceased is a missing person ; and
the two daughters demand their inheritance ;
in which case they are paid their moiety out
of the deceased's estate, as this is their un-
doubted share : but the other moiety, which
is the portion of the missing person, is held
in suspense, and no part of it paid to the
con's children, because they are entirely
precluded by the missing person if he be
living, and are therefore not entitled to re-
ceive the inheritance, because of the doubt ;
and this remaining moiety is not to be taken
out of the hands of the stranger, unless he
be discovered in some dishonest practices-
Opposite to the example of the missing per*
son is the case of a foetus in the womb, for
whom a child's inheritance is reserved,
according to an opinion upon which decrees
are passed. If, also, there be another heir
beside the foetus, who is not in any circum-
stance precluded, nor his portion altered by
the intervention of the foetus, his complete
portion is paid to him : but if this heir be
such as is entirely precluded by the inter-
vention of the foetus, nothing whatever is
paid to him. Thus, if a man die, leaving a
maternal sister and a pregnant wife, nothing
whatever is paid to the sister, as she is
entirely precluded from inheritance by the
intervention of a child whether male or
female- If, on the other hand, the heir be
one whose share is altered by the interven-
BOOK XIV.]
PARTNERSHIP
217
tion of the foetus, in this case the smaller
of the two portions is paid to him, as this
smaller share is his undoubted right, in the
same manner as in the case of a missing
person. For instance, a man dies, and
leaves a pregnant wife, and a mother who
acknowledges the pregnancy, in which case
the wife is paid an eighth and the mother a
sixth; because, if the foetus be born alive,
the wife would receive an eighth, and the
m&thera sixth ; but if it be not born alive,
the wife would receive a fourth, and the
mother a third. A sixth and an eighth
are therefore paid immediately, as these
are their portions at all events.
BOOK XIV
OF SHIRKAT, OR PARTNERSHIP
Definition of Shirkat.— -SHIRKAT. in its
primitive sense, signifies the conjunction of
two or more estates, in such a manner, that
one of them is not distinguishable from the
other. The term Shirkat, however, is ex-
tended to contracts, although *here be no
actual conjunction of estates, because aeon-
tract is the cause of such conjunction. In
the language of the LAW it signifies the
union of two or more persons in one con-
cern.
Partnership is Lawful -.—PARTNERSHIP is
lawful, because in the time of the Prophet
men were accustomed to have transactions
in partnership, and the Prophet confirmed
them therein.
And of two kinds ; by right of properly
and by contract. — PARTNERSHIP is of two
kinds, shirkat Milk, or partnership by the
right of property, and Shirkat Akid, or part-
nership by contract.
Partnership by right of property is either
optional* or compulsive ; and does not admit
of either partner acting with respect to the
other's share.— SHIRKAT MILK applies where
two or more persons are proprietors of one
thing ;•— and it is of two different natures,
optional and compulsive : — optional, where
two persons make a joint purchase of one
specific article : or where it is presented to
them as a gift, and they accept of it ; or
where it is left to them, jointly, by bequest,
and they accept of it ;— or where they both
obtain possession, by conquest, of one specific
article in an enemy's country ;— or where
they unite their respective properties in such
a way is that one is not distinguishable
from the other (such as the mixture of wheat
with wheat). — or where it may be difficult to
distinguish them (as in a mixture of wheat
with barley) :— and compulsive, where the
properties of two persons become united
without their act, under such circumstances
as render it difficult or impossible to distin-
guish between them ; or: where two persons
inherit one property. In this species of
partnership, therefore, it is not lawful for
one partner to perform any act with respect
to the other's share, without his permission
each being as a stranger with respect to the
other's share. It is, however, lawful for
either partner to sell his own share to the
other partner, in all the cases here stated : —
and he may also sell his share to others
I without his partner's consent, excepting
I only in cases of association or a mixture of
I property, for in both these instances one
partner cannot lawfully sell the share of the
other to a third person without his partner's
permission. The distinctions upon this
point are related in the Kafayat-al-Moon-
tihee.
Partnership of contract —SHIRKAT AKID
or partnership by contract, is effected by
proposal and consent, — that is, by one per-
son saying to another, " I have made you
my partner in such a property," &c. and the
other replying " I consent *•" and it is a con-
dition of the contract that the concern re-
specting which it is made be of such a nature
as to admit of delegation, in order that the
acquisition arising from it may be partici-
pated in by both parties, and that thus the
effect or design may be established, — in
other words, that the acquisition may be-
come equally the property of both.
Is of four descriptions, by reciprocity, in
traffic, in arts, and upon personal credit. —
PARTNERSHIP by compact is of four kinds,
viz :
I — Shirkat-Mofawizat, or partnership
by resiprocity.
II.— Shirkat-Aiman, or partnership in
traffic.
III. — Shirkat-Sinnaia- or partnership in
arts.
IV. —Shirkat- Woodjooh, or partnership
upon personal credit.
Description of partnership by reciprocity.
— Shirkat-Mofawizat, or partnership by re-
ciprocity, is where two men, being the equals
of each other, in point of property privi-
leges, and religious persuasion, enter into
a contract of co-partnership : — because this
species of partnership is an universal part-
nership in all transactions, where each part-
ner reciprocally commits the business of the
partnership to the other, without limitation
or restriction : for the term Mofawizat, in its
literal sense, means equality.
It requires equality in point of capital : —
IT is therefore indispensable that a perfect
equality exist throughout, in the property,
irut is, in the partnership capital, such as
dirms and deenars.-^(No regard, however, is
paid to an excess in anything beyond the
partnership capital, such as goods or effects,
lands, or debts.)
And of privileges ; — In the same manner, it
* The commentators define it partnership
in purchase and sale. The term does not
admit of any literal translation.
218
PARTNERSHIP
[VOL. H
is indispensable that an equality exist with
respect to privileges ;* because, if either
partner were endowed with rrivileges not
vested in the other, there could be no perfect
equality.
And similarity of religion and of sect.— IN
the same manner also, equality is indispen-
sable in point of religion and of sect, as shall
be hereafter demonstrated. Partnership by
reciprocity is lawful, upon a favourable
construction ;— but, according to analogy, it
is unlawful. This, also, is one opinion of
Shafei. Malik says, "I know not what Mo-
fawizat is !"— Analogy would suggest that a
partnership of this description is unlawful,—
because it includes a power of agency with
respect to an unknown subject, and also an
obligation of security with respect to a thing
underfmed ; and as each of these, individully,
is illegal: it follows that, when united, they
are illegal a fortiori. The reason for a more
favourable construction upon this point is
that the Prophet has said, "Enter into part-
nerships by reciprocity, for in that there is
great advantage." In this manner, also,
men had transactions together, no person
forbidding them Analogy, therefore, is
abandoned. Ignorance; moreover, in the
contract in question, is lawful as a depen-
dant of another circumstance, —that is, as a
dependant of equality ; — in the same manner
as in a contract of Mozaribat, where the con-
tract comprehends a commission of agency
for the purchase and sale of article un-
known, which commission is in itself illegal,
but is nevertheless legal in a contract of Mo-
zaribat, as a dependant of the contract ; and
so also in the cas<; in question.
The term reciprocity must also be expressed
in the contract.— A CONIRACT of reciprocity
is not complete unless reciprocity be ex-
pressly mentioned in it, by the parties de-
claring "we are partners, in a partnership
by reciprocity," — because the conditions of
it cannot otherwise be known. If however,
in entering into such a contract, they declare
all the conditions of it, the contract is lawful,
although the term reciprocity be not parti-
cularly expressed in it, because regard is had
to the sense, and not to the letter.
Jt is lawful between free adults, whether
Mussulmans or Zimmees —A CONTRACT of
reciprocity is lawful between, to adults who
are free, whether they be both Mussulmans,
or both Zimees, since, in either case, an
equality exists between the parties. If one
of them, also, be a scriptural Zimmee,! and
the other a P.igan, the contract is lawful,
because infidelity is one general description
with respect to faith, and hence equality in
point of religion exists in this instance.
It is not lawful between a Jave and a free
man or an infant and an adult— A CON-
TRACT of reciprocity is not lawful between a
•Arab. Tissirraf ; that is, power of action.
fA Jewish or Christian subject of the
Mussulman government.
slave and a freeman or between an infant
and an adult ; because equality does not
exist in those instances ; — as an adult free-
man is competent to transact buisness, and
to give bail whereas a slave is not compe-
tent in either of those points but by con-
sent of his master; and an infant is not at
all competent to give bail, nor to transact
business, but by permission of his guardian.
Or a Mussulman and an infidel . — A CON-
TRACT of reciprocity is not lawful between a
Mussulman and an infidel, according to
Haneefa and Mohammad Aboo Yoosaf
alleges that it is lawful, because equality
exists between those in point of agency and
bail, since in the same manner as it is lawlul
for a Mussulman to be an agent or a surety,
so is it also for an infidel : and with respect
to those particular transactions which are
lawful to one of those, and not to the other
(such, for instance, as dealings in wine or
pork), they are not regarded, in the same
manner as a similar difference is not re-
garded where a Haneefite enters into a con-
tract of reciprocity with a follower of Shafei,
for here the contract is lawful, notwith-
standing the different tenets of those sects
respecting wilful dealings in the offspring of
Tasmeeas,* which are held to be lawful by
the followers of Shafei ; but which are
deemed illegal by the Haneefites, as being
(according to them) forbidden. Such a con-
tract, however between a Mussulman and a
Zimmee is nevertheless abominable (accord-
ing to Aboo Yoosaf) ; as Zimmees frequently
enter into engagements of an unlawful
nature, in consequence of which a Mussul-
man might fall into what is prohibited.
The argument of Haneefa and Muhammed
is that the two persons in question are not
upon an equality in point of power of
action, — because, if a Zimmee purchase wine
or poi'k with the capital st:>ck. the purchase
is valid, whereas, if a Mussulman were to
purcha e these articles it is invalid : hence
the parties are not upon an equal footing in
point of transaction.
Nor between two slave, two infants, or
two Mokatibs — A CONTRACT of reciprocity is
not valid between two slaves, two infants,
or two Mokatibs, because a contract of
reciprocity is founded upon each party being
surety for the other, and the bail of such
persons is invalid. It is to be observed,
however, that on all occasions where a con-
tract of reciprocity proves invalid from the
non-existence of some of its conditions, and
those conditions are not requisite in Ainan
(or partnership in traffic), the contract of
reciprocity) becomes a contract of partner-
ship in traffic because of the existence of all
the conditions requisite in such a contract.
It comprehends both agency and bail. — A
CONTRACT of reciprocity comprehends the
* Tasmeeas are camels turned loose and
suffered to pasture at large without a herds-
man, as being dedicated to GOD.
B 31 :< X [ V. 1 P ARTNERSH IP
properties both of agency and bail. It com-
prehends the property of agency, because if
each of the contracting parties were not the
agent of the other, the end (namely, a
mutual participation of property), would be
defeated. It also comprehends the property
of bail, because if each party were not
surety for the other, the equality, in certain
particulars essential to traffic (such as the
demand of payment from either of them for
purchases made by the , other), could not
exist.
A purchase made by either partner is par-
ticipated between both ; except in articles of
subsistence. — WHATEVER is purchased by
either of two partners under a contract of
reciprocity is paiticipatecl of by both, except
the food and clothing purchased by the
partner for himself and his family :— because
a contract of reciprocity requires that both
parties be upon a perfect equality : and as
each is the other's subsitute in all dealings,
is follows that a purchase made by one is
equivalent to a purchase by both, This,
however, is exclusive of such articles as are
here excepted (which exception proceeds
upon a favourable construction), as the
articles in question must be excluded from
a contract of reciprocity, necessarily, because
there is perpetual occasion for them : for
one partner cannot be made answerable for
the other's wants ; neither can one of them
expend the property of the other in the
supply of his own wants ; yet the purchase
of these articles is indispensable ; and, on
account of this indispensable necessity, the
food and other articles mentioned appertain
solely to the purchaser. (Analogy would
suggest that those articles also are partici-
pated in by both partners, in conformity
with what was before advanced, that "a con-
tract of reciprocity requires that both par-
ties be upon a perfect equality.") The "seller
of the food or clothing is, however, at liberty
to take the price of his commodity from
either partner, as he pleases ; from the
purchaser, evidently, since it was he who
bought the article ; and also from the other
partner, since he is surety for the purchaser ;
and in this last case the other partner takes
from the purchaser a moiety of what he has
paid to the seller, as having discharged a
debt of the purchaser out of property com-
mon to both.
A debt incurred by either partner is ob/t-
gatoryupon the other. — WHATEVER debt is
incurred by either of two partners in reci-
procity, for a thing in which partnership
holds, the other partner is responsible for
the same, in order that equality may be
established. Of those things in which part-
nership holds are sale, purchase, and receipt
of hire or wages : — and of those in which
partnership does not hold are marriage, and
divorce for a compensation, composition for
blood wilfully shed, and composition for a
subsistence, and offences against the person.
Bail for property, engaged in by either
partner, is binding upon the other;— lr a
219
partner in resiprocity become, in behalf of
a third person, surety for property to a
stranger, it is binding upon the other part-
ner likewise, according to Haneefa. The
two disciples allege that it is not binding
upon the other partner ; because a person's
becoming surety for another is a gratuitous
act* (whence it is that the bail of an
infant, a Mazoon, or Mokatib, is invalid,—
and also; that if a person give bail upon his
deathbed it is valid with respect to a third
of his property only) :— and as becoming
surety is a gratuitous act, it is equivalent to
the act of granting a loan, or giving bail for
the personal appearance of any one ; f in
other words, if one of two partners in reci-
procity were to grant a loan to a stranger
out of the partnership stock, it does not
affect the other partner, insomuch that the
right of exacting repayment rests solely
with the lender, as lending is a gratuitous
act;— and in the same manner, if one of two
partners in reciprocity become bail for the
personal appearance of any one, a requisi-
tion for the production of the person bailed
cannot be made to the other partner ;—and
so likewise in the case in question. The
argument of Haneefa is that bail for pro-
perty is gratuitous in its principle, but in
its consequence induces a kind of obligation
or contract ; because in consequence of the
bail, the surety is entitled to exact of the
person bailed whatever he pays to his credi-
tors, provided the bail had been given with
his concurrence. It is therefore compre-
hended in a contract of reciprocity, with
regard to its continuance (and the circum-
stance of its continuance is the point in
question, as we say " it becomes binding
upon his partner after becoming so upon
himself)/' With respect to what the two
disciples urge, that " a person s becoming
sufety for another is a gratuitous act
whence the bail of an infant, a Mazoon, ot
Mokatib, is invalid ; and consequently, that
it is not comprehended in a contract of
reciprocity," we reply that a contract of
bail entered into by incompetent persons is
invalid in its principle ; but in the case in
question it is binding upon the other part-
ner in the circumstance of its continuance
only. Bail, therefore, with regard to its
continuance, as being an act of exchange,
bears a relation to traffic; and traffic is
comprehended in a contract of receiprocity.
If a dying person, on the other hand, enter
into a contract of bail, it is valid with
respect to a third of his property, in regard
to its execution, as well as its continuance.
Thus bail for property is not of a gratuitous
nature in its continuance, whereas bail tor
• All concessions, or acts of a gratuitous
description, are admitted in law to affect
only the actor himself . .
t There is a material difference between
bail for property, and bail for the person; as
is shown at large elsewhere. (See Bail),
220
PARTNERSHIP
the person, on the contrary, is gratuitous,
both in its execution and its continuance.
Hence bail for property is in no respect
analogous to bail for the person As to what
the two disciples further urge, that "if one
of two partners in reciprocity were to grant
a loan to a stranger out of the partnership
atock, it does not affect the other partner, as
lending is a gratuitous act" — it is not
admitted: because it is recorded from
Hineefa, that the act of lending does affect
the partner : if, however, it even were ad-
mitted by Haneefa, as not affecting the
other partner, we reply that a loan in
money is equivalent to the act of lending
any article of goods or effects ; and hence
the property paid to the lender by the
borrower may be said to be the same identi- j
cal property which he had borrowed, and
not a compensation for it (whence a stipu-
lated time or place of repayment are not
valid in it), and there rore, that lending does
not bear the property of exchange.
Unless it be engaged in without consent of
the suretee.— All which is here advanced
proceeds upon a supposition of the bail for
property having been contracted with the
concurrence of the person bailed. If, how-
ever, it be entered into without his con-
currence, it is not binding upon the other
partner (according to the Rawayet Saheeh
of Haneefa), because in a bail so contracted
the property of mutual obligation or ex-
change does not exist in its continuance. !
Let it be observed also, that indemnification
for usurped property, or indemnification
for damages, stand on the same around as
bail for property, as th?se are of retribu-
tive nature in their principle.
An accession of property to either partner
by gift or inheritance resolves a partnership
by reciprocity into a partnership in traffic.—
IF a property* of such a nature as that
partnership in it is valid, should fall to one
of two partners in reciprocity, by inheri-
tance,— or, if any person present him with
such property, by gift, and he take posses-
sion of it, — the contract of reciprocity is
null, and the partnership becomes a Shirkat
Ainan, because equality in point of pro-
perty (such as is capable of constituting
capital stock) is a condirion essential to a
contract of reciprocity throughout, and this
does not exist in the present case, as the
other partner is not a participator in the
property so acquired by gift or inheritance,
no principle of partnership therein appear-
ing with respect to hjm. The partnership
by reciprocity, however, is resolved into a
Shirkat Ainan, or partnership in traffic, as
the case admits of such a partnership,
equality not being essential thereto ; in
reciprocity, on the other hand, it is
essential, and consequently reciprocity no
longer continues. The reason of this is that
a contract of reciprocity is not of an absolute
nature : now, in a contract which is not of
an absolute nature, the rules with respect to
its continuance and its commencement are
one and the same : hence an increase of the
capital stock [of either parties] during its
continuance is equivalent to an inequality
in its commencement ; and as an inequality
of capital, in the commencement of a
partnership of reciprocity, is prohibitory to
contracting it. so, in the same manner, such
inequality taking place during its continu-
ance prohibits it ;— the contract of recipro-
city, therefore, teminates.
Unless the property be of a nature in-
capable of continuing stock —If one of two
partners in reciprocity inherit goods or
effects,* these are his sole property ; but the
contract of reciprocity does not become
null (and the same rule also obtains if one
of them inherit land) : because, as those
articles are incapable of constituting capital
stock, equality with respact to them is not a
con iition.
Section.
Partnership by reciprocity cannot be con-
tracted but in cash.— PARTNERSHIP by re-
ciprocity cannot be contracted but in dirms,
deenars, or fluctuating faloos.t Malik alleges
that such a partnership is lawful in goods
and effects, and also in all articles estimable
by weight (or measurement of capacity, where
the species is the same, because a partnership
so contracted resnects a known and specified
capital whence those articles are equivalent
to money. Tt is otherwise in a contract of
Mozaribat : for thit is restricted so'ely f> cash,
the legality of it being contrary to analogy,
since under this species of engagement a
profit is acquired on propertv concerning
which* there is no responsibility (as the
•manager is not responsible for the Mozaribat
stock), and the Prophet has forbidden the
acquisition of gain upon property in which
there is no responsibility; the contract, there-
fore, must not go beyond what is prescribed
by the T.AW ; and the only thing in which the
LAW declares Mozaribat to be lawful is cash.
The arguments of our doctors upon this point
are twofold.— FIRST, if a contract of recipro-
city, in goods and effects, were held to be
legal (as maintained by Malik), it would
necessarily induce a profit upon a property
concerning which there is no responsibility ;
because, upon each partner in reciprocity
selling his own particular capital (consisting
of goods and effects), if the goods of one
* Arab Mai. Meaning property in cash,
bullion, or other article capable of constitut-
ing capital stock ; in opposition to Raht and
Matta, that is, specific goods and effects.
* Arab. Rakht wa Matta. In opposition
to Mai.
t Arab. Faloos - Rabiha. Faloos is a
copper coin of uncertain value. Faloos-
Rabiha means copper coin on which an ad-
vantage may be gained (owing to the fluc-
tuation in its value), and hence the tern
Rabiha is here rendered fluctuating.
BOOK XIV?.]
PARTNERSHIP
221
partner produce a greater price than the
goods of the other, the excess of profit upon
the goods of the former would be due to the
latter ; and this would be a profit from pro-
perty for which the person who gains by it
is not responsible, and in which he has no
right ; because in this instance the contract
is connected with actual goods, and not with
the semblance of them, such as debts ; and
the goods are a trust in the hinds of eich
partner respectively ; — whence it is evident
that a profit is induced upon property con-
cerning which there is no responsibili ty It
is otherwise with cash, because whatever
either partner may purchase with the capital
stock, consisting of cash, the purchase thereof
is not connected with the actual capital, but
wjth its semblance, namely, debt (since the
price of it is a debt) ;— now the purchase
being connected with the semblance of the
capital (namely, debt, and the other partner
also being liable to be called upon for it (as a
contract of reciprocity involves mutual bail),
it follows that the consequence objected (of
profit upon property concerning which there
is no responsibility) is not induced, since his
is a property in which there is responsibility.
SECONDLY, The first transaction in goods and
effects is the sale of them ; and the first trans-
action in cash is purchase made with it :—
now a person selling his property under the
condition of another being his partner in the
proceeds is unlawful, since this is endowing,
with a right of property in the debt, and an
endowment of right in a debt, made to any
other than the debtor himself, is illegal : on
the other hand, his making a purchase with
his own property, under the condition of
another being his partner in the article pur-
chased, is lawful, since this is endowing
with a right of property in an actual sub-
stance, and not in a debt.
And copper coinage is comprehended under
the head of cash — FALOOS- RABIH A, or fluc-
tuating copper coins, are connected with dirms
and deenars [cash], as they pass current, in
the same manner as gold and silver coin.
Mohammed is of this opinion, because he
holds that faloos are cash, insomuch that
they cannot be particularized by specifica-
tion ; whence it is that if any person were
to purchase an article, for certain faloos, he
is at liberty to give any other faloos in place
of them ; and also, that two specified faloos
cannot be sold for one faloos, according to
what is established. According to the two
elders, partnership, or Mozaribat, are not
lawful in faloos, although they be current,
as the valuation of them fluctuates from time
to time, and they at length become the same
as goods or effects.* Aboo Yoosaf is else-
where said to entertain the same opinion
with Mohammed upon this point. It is also
recorded, from Haneefa that a contract of
Mozaribat is lawful in current faloos ; but
not a contract of reciprocity. Thus part
•That is, are no longer current.
nership by reciprocity is not lawful in any
Jhing beyond dirms, deenars, and current
faloos *
Or in gold or silver bullion, where that
passes in currency. — IT is to be observed,
io\vever, that if gold or silver bullion, by
eneral usage, pass current for value, f in
:his case partnership by reciprocity is law-
:ul in it. This is also related in the
Cadooree It is asserted, in the Jama
Sagheer, that partnership by reciprocity is
not lawful in gold or silver bullion ; for
according to that authority, uncoined gold
and silver are the same as household stuff,
distinguishable by identic specification, arid
therefore incapable of constituting capital in
either partnership or Mozaribat It is said
in the Mabsoot, treating of exchange, that
gold or silver cannot be indentified by specifi-
cation, insomuch that a contract of sale is
lot broken in consequence of any accident
to the bullion before delivery (that is, if a
person purchase any article, agreeing to give
for it certain gold or silver uncoined, and it
oe lost before delivery, the contract of sale
s not broken, because the gold or silver
cannot be particularly specified). — Now such
:>eing the case, it follows (according to this
statement) that uncoined gold or silver are
capable of constituting capital stock, in
either Mozaribat or partnership, on this
ground, that the precious metals were origi-
nally introduced for the purpose of valua-
tionj. The opinion delivered in the Jama
Sagheer, however, is the most approved ;
because, although the precious metals were
orginally introduced for the purposes of
traffic, yet their capacity to represent p~o-
perty depends upon their being coined, as
when once coined, they are no longer liable
to be used for any other purpose (such as
making ornaments for the person, and so
forth) : uncoined gold or silver, therefore,
does not constitute value, except where the
use of it in that way is customary, in which
case it is the same as coin, and consequently
a representative of property, and as such
capable of constituting capital stock It is
to be observed that what was before advanced,
that "partnership by reciprocity is not law-
ful in anything beyond dirms, deenars, and
current faloosV applies to all articles of
weight and measurement of capacity, or
which are of a heterogeneous nature. § The
illegality of reciprocal partnership in these
articles is admitted by all our doctors, pro-
*That is, such' as have not yet become
depreciated below the current standard.
|Arab. Simn (or Thimn) ; meaning a
representative of property, and therefore
used (in purchase and sale) to express price .
I Arab. Sil-Simneeat ; that is, for the
purpose of constituting price, or (in other
words) of representing property. *
§ Arab Ad wee Mootkatib, that is, re-
sembling in appearance, but differing in
species.
222
PARTNERSHIP.
[VOL. II
vided the partnership be contracted previous
to the union or admixture of stocks, in which
case it is illegal, and each partner receives
the profit arising from his own particular
commodity, and the loss upon it also falls on
him. If, also, two persons mix homogeneous
stocks, and then enter into a contract of
partnership, Aboo Yoosaf holds the rule to
be the same, and that a partnership by right
of property is here established, not a part-
nership by reciprocity. Such, also, is the
doctrine of the Zahir Rawayet. According
to Mohammad, the contract of partnership,
in this instance, holds good.
Or (according to Mohammed) in homoge-
neous stocks, after admixture. — THE result
of this difference of opinion appears where
the property of both partners is equal, and
they stipulate a larger profit to one, and a
smaller profit to the other : — for in this case,
according to Aboo Yoosaf, each is to receive
in proportion to his property, and he in
whose favour the larger profit hnd been
stipulated is not on that account entitled
to receive any excess ; but, according to
Mohammed, each is to receive agreeably to
what was stipulated. The ground upon
which the Zahir Rawayet proceeds is that
articles of weight and measurement of capa-
city,* and so forth, are distinguishable by
specification after admixture, in the same
manner as before. The argument of Mo-
hammed is that the articles in question are,
in one shape, value ; for if a person where to
sell goods for such articles, so that the price
of the goods (consisting of those articles), is
a debt upon the purchaser, it is lawful ; and,
in another shape, they are subjects of sale,
as admitting of specification ; attention,
therefore, is paid to both these circum-
stances, with respect to situations both of
admixture and of non-admixture : in other
words, partnership in them, before admix-
ture, is unlawful, as they are then subjects
of sale ; but after admixture it is lawful, as
they then constitute value : contrary to the
case of goods and effects of any other de-
cription, since these are not value in any
shape.
It cannot be contracted respecting hetern-
generous stocks — IF the stocks [of the re-
spective parties] be of two different species,
such as barley and wheat, or olives and
pepper, and the proprietor unite them, and
then enter into a contract of partnersnip, it
is unlawful according to all our doctors
The reason for this distinction, according to
Mohammad, is that whatever is mixed, of
one species, is Zooatal Irifsal ; f and what-
ever is mixed, of two different species, is
•Meaning always grain, or liquids, such
as are capable of admixture ; in opposition
to Rakot and Matta, that is goods and
effeets.
f Things compensable by an equal quan-
tity of their own species (such as wheat, for
wheat, barely for barley, &c.)
Zooatal Keem :• now as things of different
species, when mixed together, are Zooatal
Keem, ignorance exists with respect to them
{because, it is requisite that appraisers fix
the value of them), f and they are therefore
incapable of constituting capital stock, in
the same manner as any other goods or
effects : — a partnership in them is conse-
quen^ly invalid ; and such being the case,
they become subject to the rules in admix-
ture of property, as treated of under the
head of Decrees, in the Jama Sagheer and
which shall be fully set forth (in this work
when we treat of deposits.!
Partnership by right of property is effected
by each partner selling one h alf of his stock
to the other. — WHERE two persons are
desirous of entering into a contract of
partnership in goods and effects, each must
sell one half of his own goods in lieu of one
half of the goods of the other, so that a Shir-
kat-Milk, or partnership by right of pro-
perty may be established between them : and
then let them enter into partnership by com-
pact,— (Our author remarks that in this
instance a partnership in right of property
is established, but that a partnership by
reciprocity is not lawful, as goods and effects
are incapable of constituting stock in such a
partnership) With respect to what is ad-
vanced above, that "each partner must sell
one half of his own goods in lieu of one half
of the goods of the other." it means, that
each is thus to sell a moiety of his goods to
the other, provided the value of the goods of
each be equal. If, however, the value of
the goods of each be different it is requisite
that he whose goods are of least value sell
such a portion as may suffice to establish
a partnership ; for instance, if the value of
"Things compensable only by an equiva-
lent in money,
t Before the respective proportion of each
partner, in the capital stock, can be ascer-
tained.
J The arguments throughout this and the
preceding passages are so much involved in
subtle distinction and perplexing casuistry,
and are in many places so little capable of
an intelligible translation (from the impossi-
bility of rendering clearly the technical terms
which so frequently occur in them), as
greatly to obscure the matter. The prin-
ciple upon which the whMe turns is that
'a partnership by reciprocity cannot b»
entered into with respect to any articles
which are not standards of value," and the
question is "what articles they are which
may be considered as standards ?" — which
some of the doctors confine solely to cash in
the precious metals : others extend it to
bullion ; and others, again, to copper coins
[faloos] ; whilst some include grain, contend-
ing that this is a standard of value, and
may therefore be used to represent property,
in the same manner as cash.
BOOK XIV.]
PARTNERSHIP.
_____ 223^
partnership in traffic, it is lawful that the
stock of each partner be equal, and yet the
profit unequally shared, — that is, that it be
stipulated that the profit to one partner
exceed the profit to the other. Ziffer and
Shafei maintain that this is not lawful ; for
if, with equality of stocks, an inequality of
profit be admitted, it induces a profit upon
..__. J _ property concerning which there is no re-
established, but a "partnership by 'reciprocity \ sponsibility ; because, if the capital apper
is not lawful," it is of no weight ; for ren- I tain to the two in equal shares, and the
J— '-- ' • «• . - . . - I profit be divided into three lots (for instance),
the shar r in the larger proportion of profit
is entitled to a superior profit without any
the goods of one be four hundred dirms. and
that of those of the other be one hundred
dirms, then let the latter sell four fifths of
his goods to the former, in lieu of one-fifth
of his goods, so that the whole of the goods
may be held in partnership between the
parties in five lost, or shares. With respect
to what is advanced by our author, as above,
that "a partnership in right of property is
dering goods and effects capital stock in a
contract of reciprocity is illegal, only, be-
cause this would induce a profit upon pro-
perty concerning which there is no responsi-
bility, or, because the respective capital of
each would be unknown at the time of divi-
sion : but neither of these reasons exist in
the case in question : — the first reason does
not exist, because upon each selling a moiety
of his estate to the other, the half of each
partner, respectively, is a subject of respon-
sibility to the other, with respect to its
value, and hence the profit which accrues
from the property of both is a profit from
property 'which is a subject of responsibility :
and the second reason does not exist evi-
dently, because there is no occasion for
specifying the respective capital of each
partner at the time of division, so as to
require the valuation of appraisers thence
inferring ignorance respecting at, because
the property of both is equal, and they are
both partners in that property, and con-
sequently, whatever price the property may
bring must necessarily be divided between
them in equal shares.
Description nf partnership in traffic —
SHIRKAT-AINAN, or partnership in traffic,
is contracted by each party respectively
becoming the agent of the other, but not his
bail. This species of partnership is where
two persons become partners in arfy parti-
cular traffic, such as in clothes or wheat (for
instance), or where they become partners in
all manner of commerce indifferently.
It does not admit mutual bail, but it requires
mutual agency. — No mention, however, is to
be made concerning bail, in their agreement,
as bail is not a condition in a partnership of
this nature : — but it is indispensable requi-
site that each act as agent on behalf of the
other ; since, without this, the design
(namely, partnership in property), cannot
be obtained ; as acts done on behalf of
another are performed either in virtue of
some avowed authority, or of agency; and
no authority existing, agency is constituted
in order that each may act for the other, so
that the property may be held in partnership
between ihem.
It admits of inequality in point of stock. —
IF the stock of one of these partners exceed
that of the other, it is lawful, because there
is occasion for this equality (as shall be here-
after demonstrated), and the terms in which
such a partnership is contraced do not
require equality.
And also of a disproportionate profit, — IN
a
responsibility, since the responsibility is in
proportion to the capital ; — and aKo, because
a. paranership in the piofit exists in virtue of
partnership in the capital (according to their
tenets, whsnce they likewise hold the admix-
ture of the property to be condition) ; — the
profit upon the property, therefore, is the
same as increase of living stock ; and each is
consequently entitled thereto, in proportion
to his original right of property in the
capital. The arguments of our doctors upon
this point are twofold.- FIRST, the Prophet
has said, "The profit between them is accord-
ing to their agreement, and their loss in
proportion to the property of each respec-
tively ;" where no distinction is mide be-
tween the equality or inequality of their pro-
perties.— SECONDLY, in the same manner as
a person is entitled to profit in virtue of
property, he is also entitled to it in virtue
of labour (as in a case of Mozari at for
instance) : it may also sometimes happen
that one of the partners is more skilful and
expert in business than the other, and con-
sequently, that he will not agree to the
other sharing equally in the profit whence
it is requisite that one have a larger share
than the other. It would be otherwise if
the whole profit were restricted to one of the
partners, because in this instance the con-
tract is not a contract of partnership : neither
is it a contract of Mozaribat, for if, in Moza-
ribat, the whole profit be assigned to the
manager, it is a loan ; or if to tru proprietor
of the^ stock, it is a Bazat. With respect to
what is object by Ziffer and Shafei, that
"if. with equality of stocks, an inequality of
profit be admitted it induces a profit upon
property concerning which there is no
responsibility," — we reply that a contract
of partnership in traffic resemble a contract
of Mozaribat, in this particular, that each
party respectively manages with the stock
of his partner ; and ^jt also resembles partner-
ship by reciprocity, both with regard to its
name (as b>ing a partnership), and likewise
wiih regard to the conduct of it, because
both partners act in it. In consideration,
therefore, of its resemblance to Mozaribat,
we determine that it is lawful to stipulate
» profit upon property concerning which
there is no responsibility ; and, in consick-
ration of its resemblance to partnership
y reciprocity, we determine that, if it be
tipulated that both partners shall act
224
PARTNERSHIP
[Voi. II
alike,* yet the contract of partnership in
actual stock is not invalidated
A person may engage a part only of Ms
property in tt — IT is lawful for either party,
in partnership in traffic, to engage m the
contract with respect to a part of his property
only, and not the whole, because an equality
in pciat of stocks is not essential to it, since
the term Ainan does not require it.
The stock can only be such as is lawful in
reciprocal partnership.— PARTNERSHIP in
traffic is not valid except in such property as
is lawful in partnership by reciprocity.
But the respective stocks may be hetero-
geneaus.— IT is lawful for two men to en-
gage in a partnership in traffic, where the
stock of one party consists of dirms, and
that of the other party cf deenars, or where
on one side it consists of white dirms, and
on the other of black dirms. f Zjffcr and
Shafei allege that this is illegal This diffe
rencc of opinion founded on a difference of
sentiments respecting the admixture of
stocks ; for, according to those two doctors
a coalescence of the capital is essential to the
partnership ; and that cannot take place
where the two stocks are heteroge e .UP
This point will be more fully treated of
only be claimed from the partner
who incurs them.— WHERE one ot two part-
ners in traffic makes a purchase, the demand
for the price lies against him, and not against
the other partner (because, as has been al-
ready demonstrated, the contract of partner-
ship in question comprehends agency, but
not bail, and the agent is the original with
respect to rights). J
And th's partner, on making payment has
recourse to the other fcr his proportion -And
on making payment, the purchaser is to take
from the other partner his proportion of the
price (provided he has satisfied the demand
out of his own particular property, and not
out of the partnership stock), because lie is
the other's agent with respect to his share.
If, however, it be not known whether he has
paid the price out cf the partnership stock,
or out of his own property, except from the
declaration of the purchaser himself, it is in
this case incumbent upon him to produce
proof ; because the purchaser here advances
a claim for property against his partner ; and
the partner resists his claim : and the decla-
ration of a defendant (delivered upon oath),
is to be credited.
The contract is annulled by the loss of the
whole capital ; or of the stock of either part-
ner in particular.— IF the whole partnership
•Although a greater share of the profit be
conditioned to one of the partner .
fThe translator havS not been able to dis-
cover the difference between black dirms and
white dirms : it is probably some local dis-
tinction, known in Persia and Arabia.
J That is, he is the person upon whom all
demands are to be made.
stock or the stock of either partner in par-
ticular, perish before any purchase be made,
the contract of partnership is annulled : be-
cause, in a contract of partnership, in the sub-
j'ctof the contract is property (that being
specified in a contract of partnership, in the
same manner as in a deed of gift, or a will),
and, in consequence of the destruction of the
subject the contract is dissolved, in the same
manner as in sale. It is otherwise in Moza-
ribat, ard fingular agency,* because in those
the dirms or dinars cannot be identified by
specification, f or in any other mode than by
actual seisin. The agency herein mentioned
is restricted to the singular description, for
the purpose of distinguishing it from the
agency implicated in a contract of partner-
ship or of pawnage, because that is annulled
by the dissol Jtio i of the partnership or the
pawnage, as a thing which is comprehended
is annulled by the dissoiut o i of that which
comprehended in. An example of singular
agency is where a person commissions another
to purchase him a slave (for instance), in
which case, if he give the agent money for
that purpose, and the money perish in the
agent's hands, yet the agency is not annulled,
"It is otherwise." (says Fakr-al-Islam, in
his commentary on the Zeeadat), "in cases
of Mojwribat and partnership, because the
dirms and deenars are in both identified by
specification, insomuch that if the money be
lost before delivery, the Mozaribat is an-
nulled." This is contradictory to what our
author has above advanced, that, "in Moza-
ribat and singular agency, the dirms and
deenars cannot be identified by specification,
nor in any other way than by actual seisin."
It is, however, probable that there are two
opinions recorded on the point What is
above said, that "if the svhole partnership
stock, or the stock of either partner in parti-
cular, perish before any purchases be mad*,
•he contract of partnership is annulled," — is
» vident, where the whole stock of both part-
ners perishes ; and where the stock of one of
the partners perishes the contract in sale an-
nulled, because the partner whose property
has not perished had agreed to the other
participating in his property for no other
reason than that he should also participate
in the other's property ; but, upon this being
rendered impossible, he will not agree that
the other should participate in his property.
And (in the last case) the loss falls entirely
upon the partner to whom such stock had
belonged — THE contract, therefore, is void,
as its continuance is useless : and, to whom-
soever the destroyed property belonged, the
loss affects him only, and not the other,
whether it perish in his own hands, or in the
hands of his partner ; — if in his own hands
evidently : and also, if in the hands of his
Arab. Wikalit-Moofradit ; meaning,
agency with respect to some particular act.
t That is, by the mention of them in the
contract.
BOOK XIV.]
PARTNERSHIP
225
partner, because it is a trust in the hands of
that person.*
Unless it had perished after admixture.—
It is otherwise, however, uhere the stock
perishes after admixture : for in this case the
loss falls upon the partnership stock generally,
since, as the property of each is no longer
distinguishable, it follows that the loss must
after both.
A purchase made by one partner, where the
stock of the other cfteiwaids penshes, is
participated in by both', and the partnership
continues in /one, agreeably to the contract
— IF one of the partners in question make a
purchase with his own stock, and the stock
of the other afttr wards perish befpie he has
made any purchase with it, in this case the
thing purchased by the first partner is in
partnership between the two, agreeably to
stipulation, because, as partnership subsisted
between them at the time of the purcha'e,
the article purchased become a subject of
partnership between them at that time ; and
the effect is not altered by the destruction of
the other's property after the purchase. This
par:nership in the purchase is a partnership
by contract f (according to Mohammed), in-
somuch that, whoever of the two sells it, the
sale is lawful. Hassan- Ibn-Zeey ad alleges
that the partnership is merely a partnership
by right of property,]! insomuch that it is not
lawful for either pattner to sell more than his
own share, because the contiact of partner-
ship was dissolved in the present instance, in
conscquerce of the destruction of stock, in
the same manner as where the destruction
takes place befr re any purchase being made ;
nothing, therefore, remains, except the effrct
of the purchaj-e, namely, right of property [in
the thing purchased], and hence it is a part-
nership by right of property. The argument
of Mohamme 1 is that the contract lias been
completely fulfilled ivith respect to the article
purchr sed, and consequently cannot be ren-
dered void by the destruction of property
after such completion. It is to be observed
that, in the case now under consideration,
the purchaser is to take from his partner his
proportion cfthe price [of the article pur-
chased], lecau.'e he be tight a moiety of it by
agency, and paid the price out of his own
substance, as was b< fore menticned — What
is now advanced proceeds upon a supposition
of the purchase made by one partner having
been effected before the destruction of the
other's stock.
But if it perish before the other's purchase,
that continues between them under a partner-
ship by right or property. — If, however, the
* A trustee is not responsible for his trust
in cases of loss or destruction. (See Deposits.)
f Meaning, that the partnership (with re-
spect to the purchase) continues in force
under the original contract.
J That is, existing merely in virtue of a
mutual right of property and not of the
contract.
stock of one partner first perish, and the
other partner then make a purchase with his
own substance; and it should have been ex-
pressly agreed, in the contract, that each is
to act as an agent on behalf of the other, in
this case whatever the purchaser may have
bought is divided between the two, according
to their previous stipulation ; because, al-
though the contract of partnerbhip be an-
nulled, yet the agem y, which was expressly
mentioned in it. continues in force ; the pur-
chase is therefore participated in by both, in
virtue of the agency ; the connexion continues
a partnership by right of property ; and the
purchaser is accordingly to take from his
partner his proportion of the price, for the
reason before stated.
Unless there be no mention of mutual
agency in the contract ; for in this case it
belongs solely to the purchaser. — IF, on the
other hand, the partnership only be men-
tioned in the contract, and nothing expressed
in it respecting each partner acting as an
agent on the other's behalf, the article pur-
chased by one partner appertains solely to
him ; because, if the article were partici-
pated between the two, it could be so only in
} virtue of the mutual agency implicated in
! the contract ; but, that being annulled, the
power of agency implicated in it is also
annulled. It is otherwise \\here the parties
have expressly mentioned a mutual power of
agency ; because in this case the agency is
not annulled by the annulment of the part-
nership, as agency is here one especial design
of the contract, and is not merely implicated
in it.
Partnership holds without admixture af
stocks — A PARTNERSHIP is legal, although
the parties should not have mixed stocks.
Ziffer and Shafei maintain that it is illegal,
because the profit is a brnnch of the stock,
and the branch is not to be participated in
except where the original stock itself is also
participated, which cannot be so but by
coalescence or admixture. The ground upon
which they proceed is that, in a contract of
partnership, the stock is the subject of the
contract (whence it is that the partnership is
referred to the stock, by each partner saying
to the other, " I make you my partner in
such stock," — and also, that the specification
of the capital is an essential),— and, such
being the case, it is indispensably requisite
that the stock be participated in by both,
It is otherwise in Mozanbat, as that is not
partnership, since :t implies nothing more
than that, as the manager is to act for the
proprietor of the stock, he is consequently
entitled to a share in the profit, as wages on
account of his labour, which is different
from the case in question, where the profit is
a branch of the stock, and not wages for
labour. This is a grand leading principle
with Ziffer and Shafei. insomuch that (argu-
ir g upon this ground) they allege it to be
indispensable, in a contract of partnership,
that the stock of both partners be of the
same species ; for. if otherwise (as where
226
PARTNERSHIP
[VOL II
one is possessed of dirms and the other of
deenars), they hold that the contract is in-
valid because of the capital not being par-
ticipated in by both ; and they also allege
(upon the same principle) that mixture is
an essential : and likewise, that it is unlaw-
ful to stipulate an excess of profit to either
partner, where their stocks are equal, as the
profit is a branch of the stock : — and also,
that partnership in arts* and trades f is
illegal, as in tho e there is no stock (as shall
be hereafter explained).— The arguments of
our doctors upon this point are twofold, —
FIRST, partnership in profit is referred to
the contract and not to the stock ; because
as the contract is termed " % contract of
partnership," it is indispensable that the
property of the term partnership exist in it ;
and, such being the case, it follows that the
admixture is not essential —SECONDLY, as
the money [of \vhich the stock consists] is
not specified, the profit is not derived from
the capital, nor indeed from anything else
than the transactions [which are had with
the stock] ; because each party is a prin-
cipal, with respect to one half of the stock
and an agent with respect to the cth r half ;
and, as it hence appears that partnership
may be established, in point of transaction,
without admixture of stocks, it follows that
it may also be established in the thing which
accrues from transaction (namely the profit),
without such admixture : and, as the con-
tract of partnership thus becomes similar to
a contract of Mozaribat, a similarity of spe-
cies in the stocks and an equality of profit,
are not essentials, although the stock of each
be equal. A partnership in arts is also law-
ful on the same principle.
Partnership do* s not admit a specification
of profit in behalf of either partners — A CON-
TRACT of partnership, which stipulates any
particular sum out of the profit for one of the
partners, is unlawful, as this condition is a
means of destroying partnership, since it is
possible that no more profit may be acquired
altogether, than the sum so stipulated. Cor-
respondent to this is a case of cultivation;
that is to say, where the parties, in a
compact of cultivation, stipulate a particular
quantity of produce to one of them (that is.
to the cultivator or to the landlord), the com-
pact is invalid ; because such a stipulation
is a means of destroying partnership; and in
cultivation it is essential that the produce of
the land be equally participated between
those persons
Either partner may* make over his stock,
in the manner of a Ba2at. — EACH of the
partners, in a contract either of reciprocal
partnership or of partnership in actual stock,
is at liberty to give his stock in the manner
of a Bazat : because it is customary so to do
in contracts of partnership ; and also, be-
* Arab. Shirkat Takabbal (synonymous
with Shirkat Sinnai).
A A»*K SHirkat Ammal.
cause either partner is at liberty to hire any
person to work for the acquisition of profit ;
and as the acquisition of profit without any
return is still less objectionable than hiring
with the same view, he is consequently
authorized to adopt the other mode a for-
tiori.
Or lodge it as a deposit.— In the same
manner, al^o, either of them is at liberty to
lodge this capital as a deposit, as this is
customary, and sometimes necessary, among
merchants.
Or entrust it to the care of a manner, by
Mozaribat — EACH of them is also at liberty
to give his capisal in the way of Mozaribat.
because, as Mozaribat is subordinate to
partnership either by reciprocity or in
traffic, it follows that a contract of partner-
ship comprehends Mozaribat. It is recorded
fiom Haneefa that a partner has not this in
his power, because Mozaribat is also a mode
of partnership. The former opinion, how-
ever, is according to the Mabsoot, and is the
mo^t approved, because partnership is not
the design of a contract of Mozaribat, the only
view in it being the acquisition of profit. It
is therefore lawful to give the capital in the
way of Mozaribat, in the same manner as it
is lawful for the proprietor of the stock to
hire a labourer with wages. It is lawful,
indeed, in a superior degree, because, where
ihe Mozarib manages, and no profit is ac-
quired, there are no wages owing to him
from the proprietor of the stock, whereas, in
a cate of hire, where the hired person
manages the stock and no profit is acquired,
wages are nevertheless due to him from the
hirer. It is otherwise with respect to a
contract of partnership, for neither party is
at liberty to engage in such a contract with
a third person, with regard to the capital,
because a thing cannot be a dependant of a
similar thing.
Either partner may also appoint an agent
on his own behalf. — EITHER of two partners,
by reciprocity, or in traffic, is at liberty to
constitute a person his agent to transact for
him, because the appointment of an agent
fur purchase and sale is a dependency of
traffic : and contracts of partnership are
formed for the purpose of traffic. It is
otherwise with an agent for purchase, for he
is not at liberty to constitute another person
his agent, to make the purchase on his
behalf, as the appointment of an agent for
purchase is a particular contract, the end of
which is the acquisition of some specified
and existent article, and a thing cannot be
the dependant of its similar.
Each partner holas the stock in the manner
of a trust. — THE possession or each of two
partners, by reciprocity or in traffic, over the
partnership stock, is considered as the
possession of a trust, since each possesses the
property with consent of -the proprietor, for
this reason, that he is to give something in
lieu of it, in the same manner as where a
person takes possession of a thing with a
view to purchase it (not because it is a
BOOK XIV]
PARTNERSHIP.
227
pledge, as in pawnage) ; the stock is therefore
a deposit.
Description of partnership in arts.—
SHIRKAT SINNAI, or partnership in arts
(which is al>o termed Shirkat Takabbal"),
signifies where two tailors, or two dyers
(for instance), become partners, by agreeing
to work and to share their earnings in
partnership ; which is lawful according to
our doctors Ziffer and Shafci allege that
this is unlawful ; because the design of
partnership is a participation of gain
between the parties, and the partnership in
question is not calculated to answer this
end, since a capital is indispensable, as
partnership in profit is founded on partner-
ship in stock (according to their tenets, as
before set forth), and in the case in question
there is no capital The argument of our
doctors is that the design of the contract in
question is the acquisition of property,
which is attainable by each party consti-
tuting the other his agent ; because upon
each becoming agent on the part of the
other with respect to one half, and a prin-
cipal with respect to the other half, a part-
nership is established in the property to be
acquired
It is not requisite that the parties both
follow the same trade or reside in the same
place.— Unity of trade ard of dwelling place
are not essentials in this species of partner-
ship. Malik and Ziffer controvert this ; for
according to them unity of trade and of
residence are essentials
OBJECTION — Tt was before mentioned that,
according to Ziffer. partnership in arts is
unlawful ; but here it appears that he holds
it to be lawful ; which is a contradiction,
REPLY. — There are two reports of the
opinion of Ziffer upon this point. That
before recited is confirmable to one report ;
and what is now mentioned is according to
another report.
THE argument of Ziffer in support of his
latter opinion is that if the parties be of
different trades (such as where a dyer and a
bleacher become partners), each will be at a
loss with respect to the business undertaken
by the other, as that is not his trade ; the
end of partnership, therefore, cannot be ob-
tained : in the same manner, also, if their
places of residence be different, each is at a
loss W'th respect to the business of the other.
The argument of our doctors is lhat the
cause of the legality of the partnership
(namelv, the acquisition of property) is in no
way affected by unity of trade and place of
residence, or the reverse : — it is not affected
by unity of trade, or the reverse, because
an appointment of agency made by agree-
ment, with respect to any business, is ap-
proved, whether the person who undertakes
it be able to execute it in a good and suffi-
cient manner or not at all, since the person
who so agrees is not under any obligation to
perform the business himself, but is at liberty
to appoint any other person to perform it ;
and as each party has it in his power thus to
appoint a person to perform the business m
question, the contract is consequently valid :
neither is it affected by unity of place, or
the reverse, because, if one ot the two
partners work in one shop, and the other
in another shop, yet it is evident that no
difference whatever is tht reby created in
essential circumstances. m
It admits an inequality of profit.— It is to
be remarked that if, in the case now under
consideration, the partners stipulate to per-
form equal labour, and to divide ihe acqui-
sition arising from it in three lots,* the same
is lawful, upon a favourable construction.
Analogy would suggest that this is unlawful,
because the responsibility is m proportion
lo the labour, whence, if this stipulation
were admitted, it would induce a profit from
a matter concerning which there is no re-
sponsibility : any excess to either party,
therefore, is unlawful in the present instance,
in the same manner as it is unlawful in
a Shirkat Wodjooh, or partnership upon
credit (as shall be hereafter demonstrated),
The reason for a more favourable construc-
tion is that what each of the partners takes
he does not take in the manner of profit ; as
gain does not bear the denomination of
profit except where the stock and the gam
are of the same nature; but they are not of
the same nature in the case in question,
because the capital, in this instance, is in-
dustry, and the profit substance the pro-
perty so acquired, therefore, is not profit,
but merely a return for industry ; now
industry is appreciable by means of estima-
tion ; and consequently, where both partners
agree to receive a certain specific proportion,
such proportion is an estimate of the industry
of each respectively : the excess, therefore,
is not unlawful with respect to him in whose
behalf it is stipulated. It is otherwise in a
partnership upon credit, because in that
instance the gain is of the same species with
the capital (as both consist of substance) ;
and profit is established where the capital
and the gain are of the same nature : and as
profit on property concerning which there is
no responsibility is unlawful, except in a
contract of Mozaribat, it follows that it is
unlawful in a contract of partnership upon
credit : the case in question, therefore, is m
no respect analogous to a case of partnership
upon credit, ,*»,,,
The work agreed for b\ either partner is
binding upon the other ; and either is at
liberty to call upon the employer for payment.
—IN a partnership in arts, whatever work
one partner agrees to is incumbent upon him,
and also upon the other partner, insomuch
that the employer may require the perform-
"Literally
agreement."
"a
partnership
by
mutual
•Two lots for one partner, and one lot fo*
the other.
228
PARTNERSHIP
[VoL. II
ance of it from either ; and each is entitled
to demand payment from the employer for
the business performed. Upon the employer,
also, thus paying either, he is thereby dis-
charged of all demands. This is evident
where the partnership in arts is of a reci-
procal nature (by both partners being upon
an equality with respect to those particulars
in which equality is requisite in a contract
of reciprocity) ;— and where the partnership
in question is not of a reciprocal nature, but I
in the manner of a partnership in traffic, the |
same is admitted, on a favourable construe- |
tlon. Analogy would suggest otherwise : !
because the partnership has been contracted |
in general terms, without any mention of |
hail ; and hail is not one of the articles of |
a partnership in traffic : it would therefore
follow that the employer is not empowered
to require the performance of the business
from either of them indifferently ; and also,
that they are not both empowered to require
payment from the employer : — and likewise,
that the employer is not discharged from
all demands; by paying either indifferently.
The reason for a more favourable construc-
tion is that the partnership is an occasion of
responsibility ; that is, in consequence of the
partnership, the performance of work is |
incumbent upon the parties ; whence any |
business engaged in by either is incumbent j
upon the other also ; and the other is accord- '
ingly entitled to the payment, as one of them
engaging to perform any work equally affects j
the other : for if the other also were not
subject to this obligation, he would not be
entitled to payment : the partnership in
question, therefore, is equivalent to a part-
nership by reciprocity, with respect to the
obligation of work, and the taking possession
of the payment for it.
Description of partnership upon credit.—
SHIRKAS U/ADJOOH, or partnership upon
credit, is where two persons, not being pos-
sessed of any property, become partners by
agreeing to purchase goods jointly, upon
their personal credit* (without immediately
paying the price), and to sell t^em on their
joint account. This species of partnership
is termed Wadjoob, for this reason, that no
person can purchase articles upon credit but
one possessed of personal notoriety [Wij^hit]
among mankind.
it may include reciprocity — IT may law-
fully constitute a partnership by reciprocity :
because eaeh partner may become both bail
and agent for the other.i Where, therefore,
two persons, capable of bail, make a purchase
of any article, on condition that it shall be
held between them in equal shares, intro-
ducing the term "by reciprocity" into their
agreement, it is a contract of reciprocity, If
on the other hand, they express their agree-
Xent merely in general terms, it is a Shirkat
inan, or partnership in traffic, because,
when thus generally expressed, it is con-
•Arab, Wijahit.
sence, or notoriety.
Literally, personal pre-
cluded in the manner of such a partnershi >.
The legality of the partnership in questi >n
is according to our doctors. Shafei alleges
that it is illegal. The arguments on both
sides have been already recited.
Each partner is agent for the othsr. — IN
partnership upon credit, each partner is
agent on behalf of the other, with respect to
what he purchases ; — because any act whuh
affects another is unlawful, except it be per-
formed in virtue either of agency or of
authority;* and as authority does not exiit
in the present instance, agency is certified.
The profit of each partner must be in pro-
portion to the share of each in the adventure.
— IF the partners agree that what they pur-
chase shall be held between them in equal
shares, and that the profit also shall be
equally divided, it is lawful : but it is not
lawful, in such a case, to stipulate an excess
of profit to one of them. If, however, they
agree that what they purchase shall be held
between them in three lots, and that the
profit also shall be divided into three lots.f
it is lawful. In short, if the profit be in
proportion to the right of property it is
lawful, but otherwise not. The reason ^f
this is that men are entitled to profit only on
account of stock, management, or responsi-
bility ; thus the proprietor, of a stock is
entitled to profit in virtue of the stock ; a
manager in virtue of his management ; and
a master artisan, who employes a scholar or
apprentice at half wages or third wages
(for instance) is entitled to the profit arising
from his work in virtue of his responsibility
for such work (whence it is that if a person
say to another. "Transact with your own
stock on condition that the profit be mine,"
it is unlawful, because in such a case, no one
of the above particulars exists). As men,
therefore, are entitled to profit only on some
*one of these three principles, and as, in a part-
nership of credit, the title to profit is in virtue
of responsibility (as aforesaid), and as also,
responsibility attaches in proportion to the
right of property in the thing purchased, it
follows that whatever exceeds the proportion,
of such right of property is a profit upon a
thing concerning which there is no lespon-
sibility. Mow the stipulation of profit from
a thing concerning which there is no re-
sponsibility is not valid except in a contract
of Mozaribat ; and a partnership upon credit
has not the property of a contract of Moza-
ribat. It is otherwise in a partnership in
traffic, as that has the property of a contract
of Mozaribat, inasmuch as each partner in
traffic transacts business with the stock of
the other partner, in the same manner as a
manager transacts with the stock of the
proprietor, whence a partnership in traffic
is, in effect, a Mozaribat.
*Arab, Willayat Meaning the authority
derived from natural or personal sight, such
as that of a guardian or a proprietor.
tThat is, two lots to one, and one lot to
the other.
BOOK XIV.]
PARTNERSHIP
229
Section.
Of Invalid Partnerships,
Partnership does not hold in articles of a
neutral nature. — PARTNERSHIP is not lawful
in wood, grass, or game. If, therefore, two
persons enter into a contract of parmership
with respect to such articles, and afterward
collect wood, or grass, or kill game in hunt-
ing, the wood or grass so collected, or the
game so killed, by either of them, belongs to ,
him solely, and not to the other partner-
The same rule holds in cases where two per-
sons enter into a contract of partnership,
with respect to any other articles of a neutral
nature (such as fruit collected from the trees
of the forest, which are common property),
because a contract of partnership compre-
hends a commission of agency : and the
appointment of an agent for procuring
things of a neutral description is null, be-
cause the instructions of a constituent to
this effect are invalid, since an appointment
of agency signifies an endowing with autho-
rity to transact concerning a matter origi-
nally subject to the acts of the constituent
only, and not of the agent ; but it is other-
wise in the case in question as the agent is
here at liberty himself to take the neutral
article without the instruction of his con-
stituent, and consequently is incapable of
appearing as his deputy concerning it. In
short, a right of property in a neutral article
is established only by the acts of taking and
putting it in custody,
Unless they be taken possession of jointly,
— IF, therefore, both partners take it jointly,
it is equally in partnership between them, as
they are both equally entitled to it. But if
one of them only exert himself in taking it,
the other doing nothing, it b longs wholly
to the one who acts : if, on the other hand,
one be the chief actor, and the other only
an assistant (as where one plucks the frui*.
and the other collects it, — or, where one both
plucks and gathers it, and the other carries it
sway), in this case the assistant is to receive
wages in proportion to his labour — This is
according to Mohammed. (Aboo Yoosaf al-
leges that this rule holds only where the wages
do not exceed half the value of the article
in question ; but that, if the wages exceed
this, one half of the value only is paid to
the assistant, because, as he had agreed to
accept one half of the article specified, his
right fails with respect to any larger pro-
portion.)
Nor in tht's instance , where the means of
acquiring them are different. — IF one man
possess a mule, and another a Mashack (or
leather bucket, such as is used in drawing
water) and they enter into a contract of
partnership in drawing water,* by agreeing
* Water is in many parts of Asia pro-
cured from draw-wells, sunk to a consider-
able depth. From the edge of such wells a
road is constructed or cut, going off from
that whatever may be acquired thereby shall
be in partnership between them, such part-
nership is invalid, the whole acquisition
going to the person who actuaily draws the
water ; and if this be the owner of the mule,
he o ves the other the adequate hire for the
bucket ; or, if it be the owner of the bucket,
he owes the other an adequate hire for the
mule. The reason of the partnership being
invalid is that it is contracted with re-
spect to an article of a neutral nature
(namely, water), and is therefore unlawful,
The hire of a mule or the bucket is due,
because the neutral article (namely, the
water) becomes the property of the person
who drew it ; and as he derives an advantage,
under an invalid contract, from the property
of another person (namely, from his mule or
his bucket), it follows that he owes n hire for
the same.
The profit to each partner must be in pro-
portion to the stock. — IN all cases of invalid
partnership, the profit is in proportion to
the stock ; any stipulation, therefore, of an
excess of profit to either partner is null.
Accordingly, if the stock be between the
partners in equal shares, and they agree to
their profit being in three lots, such agree-
ment is null, and the profit must be equally
divided ; necause, as the profit which ac-
crues is a dependant of the stock, the degree
of it must be in proportion to the stock, in
the same manner as, in a contract of culti-
vation, the grain which is reaped is a depen-
dant of the seed The reason of this is that
a claim to an excess profit can exist only in
virtue of a previous specific agreement: but
in the case in question this agreement has
become invalid in consequence of the inva-
lidity of the contract of partnership itsef:
the claim, therefore, remains in force only
in proportion to the capital stock.
A contract of partnership is annulled by
the death or apostasy of either partner.— IF
one of two partners die, or apostatize, and
be united to a foreign country, * the contract
of partnership is annulled ; because a con-
tract of partnership comprehends an appoint-
ment of agency, which is essential to the
existence of partnership, for the reasons
already assigned : now agency is annulled
by death ; and it is also annulled by the
circumstance of desertion to a foreign
country during apostasy, where the Kazee
issues a decree in consequence of such
twenty to thirty x^rds, in an inclined plain ;
and over the well is erected a frame or cross
price, furnished with a pulley, through which
a line runs, having suspended at one end a
large leather bucket [Mashack] j the other
end is fastened to traces, in which a mule,
bullock, or other animal, moving to and fro
on the inclined road, by this means draws
the water. "
* That is, be expatriated by a decree of
the Kazee, issued in consequence of his
apostasy and desertion.
230
PARTNERSHIP
[VOL. II
desertion, because that is equivalent to
death : upon the agency, therefore, being
annulled, the contract of partnership is also
annulled.
Whether the survivor be aware of that event
or not. — IT is also to be observed that the sur-
viving partner being aware of the decease of
his fellow, or otherwise, makes no difference
whatever with respect to the dissolution of
the partnership ; because as, in the case in
?uestion, the survivor is virtually discharged
rom the agency by the decease of his part-
ner, it is not essential that he be informed of
that event. It is otherwise where one of
two partners breaks the contract of partner-
ship, for the effect of such a breach depends
upon the knowledge of the other partner,
as the breach is a designed dissolution of
the contract.
Section.
A person cannot pay Zakat upon his part-
ner's property without his permission. — IT is
not lawful for either partner to pay the
Zakat upon the other's property without his
permission, as the payment of Zakat is not
a branch of traffic.
Case of mutual permission to uay Zakat. —
IF each of the partners give a general per-
mission to the other to pay the Zakat upon his
property, and each should afterwards first
pay the Zakat upon his own particular share
in the stock, and then pay Zakat upon his
partner's share, in this case he who last paid
the Zakat is rerponsible, whether he be aware
of the other having already paid it or not
This is according to Haneefa. The two
disciples allege that he is not responsible,
where he is not aware of that circumstance.
What is here advanced proceeds upon a sup-
position of each partner having paid the
Zakat upon their respective shares of stock
successively, and not altogether ; for where
they have paid it altogether, each is respon-
sible for the other's proportion of it. A
correspondent difference of opinion obtains
where any indifferent person directs another
to pay the Zakat upon his property, and the
other accordingly pays the Zakat upon his
property after the person who so directed
him had already paid it ; for, according to
Haneefa, the person acting under such
direction is responsible, whether he pay the
Zakat with a knowledge of the above circum-
stance, or otherwise. The two disciples, on
the other hand, maintain that he is not
responsible unless he pay it, having a know-
ledge of that circumstancef as he has acted
by direction, and consequently cannot be
held answerable, They admit, indeed, that
it may be objected that what the person
acting under with direction pays is not
Zakat,* and consequently he ought to be
•
* Because Zakat has been already paid by
the principal, and hence what this person
pays is not properly Zakat, but rather
gratuity or alms-gift.
responsible : — but to this they reply the
order which the person in question rec *ived
was not in fact an order to pay so much
Zakat, but rather, merely, an order to trans-
fer so much to the POOR, since the payment
of actual Zakat is not within his province,
as this is connected with the intention of the
principal, and no more can be required of
the person so directed than what is within
his province and ability : — the person in
question, therefore, stands in the same predi-
cament with one who is directed to perform
sacrifice on behalf of another, in a case of
detention ; thus, if a person engaged in the
ceremonies of pilgrimage were to fall into the
hands of an enemy, and to direct any other
person to preform sacrifice at the temple on
his behalf, and the other perform sacrifice
accordingly, after the principal had been
released from the enemy, and had completed
1 his pilgrimage, yet he does not bear the loss,*
whether he be aware of the detention having
ceased, or otherwise. The argument of
Haneefa is that the person in question has
been directed "to pay ZAKAT ;" and as what
he pays is not in fact Zakat, it is evident he
has acted contrary to the orders of his princi-
pal, whose design in giving such orders was
to discharge himself from an obligation in-
cumbent upon him (for it is evident that his
sole view in subjecting himself to such an
expense is to ward off the divine anger
attending the neglect of Zakat) ; — now, as
(in the case in question) this design has been
fully answered by the payment of the princi-
pal himself, it can no longer he so by the
payment of his substitute, and hence it
follows that the substitute is discharged
from his commission, whether he be aware
or not, because this is a virtual discharge,
and to that knowledge is not essential.
With respect to the case of sacrifice under
a circumstance of detention, as adduced by
the'two disciples, some in reply to it allege
that the principle there advanced is not
generally admitted, as concerning that also
there is a difference of opinion, Others,
again, m&intain that there is an essential
difference between that case, and the case
under consideration. The reason they give
for this difference is, that sacrifice is not in-
cumbent upon the detained person, as he is
permitted to delay it until his detention shall
cease. The payment of Zakat, on the other
hand, is incumbent, whence the design in
appointing an agent to pay it is to discharge
an obligation ; and as this design is not ful-
filled,! it follows that the agent has no credit
for his payment, and that what he pays is a
waste and destruction of the property of his
•That is to say, the expense attending the
sacrifice (although it be insufficient and
nugatory under such a circumstance), never-
theless falls upon the director, not upon the
person directed.
fAs it has been already fulfilled by the
payment of the principal himself.
B. OK XIV.]
PARTNERSHIP
231
principal, for which he is consequently
responsible. The case of sacrifice under a
circumstance of detention, therefore, is not
analogous to the case now under considera-
tion, as sacrifice in such a circumstance is
merely lawful but not incumbent, and hence
the sacrifice performed by the delegate is not
to be regarded as a waste and destruction of
the property of his principal, for which reason
he is not responsible.
A female slave, purchased under a contract
of reciprocity, becomes the properly of that
partner who with permission of the other,
has carnal connexion with her.-— If one of
two partners by reciprocity permit the other
partner to purchase a female slave with the
partnership, stock, and to have carnal con-
nexion with her, and the other act accord-
ingly, in this case the slave appertains to
the purchaser, and he is not responsible for
anything, This is according to Haneefa.
The two disciples allege that the other part-
ner is entitled to take half the price of the
slave ; because the purchaser has paid for the
slave out of the partnership stock, and con-
sequently his partner has a right to be repaid
h;s jshare in the same manner as in the
purchase of victuals or clothing (that is, as,
where one of two partners by reciprocity
purchases victuals or clothing, paying the
price out of the partnership stock, the other
partner is entitled to take half the price from
the purchaser, so also in the case in ques-
tion), The ground upon which this proceeds
is that the slave in question has become the
sole and exclusive property of the purchaser
because of the necessity of legalizing genera-
tion ; and as the price is due in proportion to
the right of property, it follows that the
price of the slave is solely and exclusively
due from the purchaser. The argument of
Haneefa is that the slave has fallen into the
possession of both partners, a certioreri, accord-
ing to what partnership requires (for thay
cannot alter the requisites of partnership): the
slave therefore, is the property of both, in
the same manner as if no permission had
been given : now the permission implies that
the person who grants it makes a gift of his
share to the purchaser : for carnal connexion
is lawful only in virtue of right of property :
and there is no mode of establishing that in th?
present case but by gif c : because sale cannot
be supposed on this occasion,* as the estab-
lishment of a right of property by sale wjuld
be repugnant to the requisites of a contract
of partnership ; for if the partner were to sell
his share to the purchaser, still that share is
in partnership between the two, and does not
belong exclusively to the purchaser His
share, therefore, is made the property of the
purchaser by gift implied in the permission
granted to the purchaser to have carnal con-
nexion with the slave. It is otherwise with
respect to victuals and clothing, becauss, as
•Meaning a complete sale from one partner
to the other,
hese are excepted from the contract of
ecessity, they are the sole property of the
. lurchaser in virtue of the spirit of a con ract
of purchase and sale ; he, therefore, must
5ay half the price th reof to his partne ,
)ecauce he has discharged a debt due from
himself [for the above articles] out of the
partnership stock, whereas, in the case ur der
consideration the purchaser discharged a
partnership debt, which was equally due
rom both partners, for the reasons already
lleged.
But the seller may take the price from
either.— IT is to be observed that, in the
case in question, the seller of the slave i* at
iberty to take the price from either partner,
according to all our doctors, because this
price is a debt incurrred by an act of traffic.
A contract of reciprocity, moreover, comp:e-
lends bail : and hence the price of the slave
resembles (in this respect) the price of victuals
or cloth'ng.
BOOK XV,
OF WAKF. OR APPROPRIATIONS.*
Definition of Wahf \ and various opinions
respecting it — WAKF, in its primitive sense,
means detention. In the language of th<2
LAW (according to Haneefa), it signifies the
appropriation of any particular thing in such
a way that the ippropriator's right in it
shall still continue, and the advantage of it
go to some charitable purpose, in the manner
of a loan. Some give it as the opinion of
Haneefa that, as the advantage of a thing is
a nonentity, and as the alms-gift of a nonen-
tity is invalid, it follows that appropriation
is utterly illegal, t It is, moreover, recorded
in the Mabsoot that Ha nee fa held appro-
priation lo be invalid. The most approved
authorities, however, declare it to be valid
according to him : but since (like a loan) it
is not of an absolute nature, J the apprp-
priator is held to be at liberty to resume it.
and the sale or gift of it is consequently
lawful. According to the two disciples.
Wakf signifies the appropriation of a par-
ticular article, in such a manner as subjects
it to the rules of divine property, whence
the appropriator's right in it is extinguished,
and it becomes a property of GOD by the
advantage of it resulting to his creatures.—
The two disciples, therefore, hold appro-
priation to be absolute ; and, consequently,
that it cannot be resumed, or disposed of by
gift or sale ; and that inheritance also does
not obtain with respect to it. (There is,
indeed, one point upon which the disciples
differ in opinion : tor, according to Aboo
Yoosaf, the sppropriation is absolute from
* Meaning always of a pious or charitable
nature. .
JThat is, has no force in law.
That is, it is not IRREVOCABLE,
232
APPROPRIATIONS
[VOL. II
the instant of its execution : whereas Mo-
hammed holds it to become absolute only on
the delivery of it to a Mootwalee, or pro-
curator :*— as will hereafter appear,) Thus
the term Wakf, in its literal sense; compre-
hends all that is mentioned both by Haneefa
and by the two disciples. Now, such being
the case, no preference can be given to the
tenets of one party over that of the other, as
drawn from the meaning of the term : this
preference, therefore, must be given as drawn
from arguments. The arguments of the two
disciples upon this subject are twofold .
FIRST, when Omar was desirous of bestow-
ing in charity the lands of bimag, the
Prophet said to him, " You must bestow the
ACTUAL LAND ITSELF, in order that it may
not remain liable to be either SOLD or BE-
STOWED, and that INHERITANCE may not
hold in it— SECONDLY, there is a necessity
for the appropriation being absolute, in order
that the merit of it may result for ever to
the appropriator ; and this necessity is to be
answered only by the appropnator relin-
quishing his right in what he appropriates,
and dedicating it solely to GOD ; which dedi-
cation as being agreeable to the LAW, in the
same manner as that of a mosque, must
therefore be made in the same mode. The
arguments of Haneefa concerning it are
various. FIRST, the Prophet has said. Pro
perty cannot, after the decease of the pro-
prietor, be detained from division among his
heirs" (in Other words, appropriations are
not ABSOLUTE, but INHERITABLE), Shirrah
moreover says, " the Prophet determined ^the
sale of an appropriation to be lawful,' —
which is as much as to say, that "before
the promulgation of the LAW by the holy
Mohammed (on whom be the blessing and
peace of GOD) appropr a'ions were absolute;
but our'LAW has rendered them otherwise/
— bECONDLYt the appropriator' s right in the
article appropriated must still continue in
force, for this reason, that it is lawful for the
creatures of GOD to derive an advantage
trom it, either by tillage (if.it consist of
land), or by residence (if it consist of
dwellinjz-houses) : for if no one had any
right in it, any acts with respect to it would
be unlawful, in the same manner as with
respect to a mosque. It is, therefore, evident
that a right of property in it still continues:
and it is also evident that this right of pro-
perty must rest with the appropriator, and
not with any other person, as he alone is
entitled to expend the revenue arising from
it upon the objects of thfe appropriation, and
to appoint a procurator over it : but yet, as
the term Wakf implies giving in charity, the
use of it resembles that of a loan. THIRDLY,
•Literally, a person endowed with autho-
rity ; the term procurator is adopted by the
translator, as being peculiar to the manage-
ment of a religious foundation, and as distin-
guishing this office from that of a common
the appropriator wLhes to apply the revenue
arising from what he appropriates to some
charitable purpose in perpetuity which is
impossible, unless his right of property in it
continue. FOURTHLY, it is impossible that
the appropriator's right of property in the
Wakf should be extinguished, during its
existence; without its becoming the prr perty
of some other person, as the LAW does not
admit the idea of a thing, during its existence,
going out of the possession of one proprietor
without falling into the possession of another
proprietor Wakf, therefore, in this par-
ticular resembles a Sayeeba. (A Sayeeba is
a female camel, set at liberty in pursuance
of a vow (as where a man says, " if I return
home from this journey," or, "recover from
this disorder a certain female camel of mine
is Sayeeba,"*) which the owner prohibits
himself from any further use of ; in the same
manner as a Baheera, or female camel, which
after producing ten colts, it was customary,
in times of ignorance, then to set at liberty,
rendering it unlawful to be used or eaten.)
Appropriation, in short, resembles the Pagan
act of setting a camel at liberty, in this
respect, that the thing appropriated does not
go out of the right of property of the pro-
prietor : —in other words, if a man constitute
his quadruped a Sayeeba, still it continues
his property ; and *>o also, if a person appro-
priate his lands or quadruped. It is other-
wise in a case of manumission, as that is a
dereliction of property. It is otherwise also
in the case of a mosque, as that is dedicated
purely to GOD (whence it is unlawful to
derive any advantage from a mosque),
whereas in a case of appropriation, the
right of the individual still continues in
force, and that, consequently, is not dedicated
purely to GOD,
Alienation of the article appropriated is
Completed by a decree of the magistrate, and
the declaration of the appropriator, or the
consignment (*f il to a procurator. — IT is
reported by Kadooree, from Haneefa, that
the appropriator's right of property is not
extinguished, except where the magistrate
so decrees, or where the appiopriator himself
suspends it upon his decease, by declaiing
"When I die, this house is appropriated to
such a purpose" (and so forth). Aboo
Yoosaf alleges that his right of property is
extinguished upon the instant of his saying
" I have appropriated"— (and such also is
the opinion of Shafei); because that is a
dereliction of property, in the same mariner
as manumission. Mohammed says that it is
not extinguished until he appoint a procu-
rator, and deliver it over to him : and
decrees are passed upon this principle. The
reason of this is that the right of God cannot
be established in an appropriated article but
by implication, in the consignment of it to
• Literally, running about at liberty, An
may be used towards a female slave as for
formula of manumission*
BOOK XV.]
APPROPRIATIONS.
233
his creature (as a transfer to the Almighty,
who is himself the proprietor of all things,
although it cannot be effected actually and
expressly, yet may be so dependantly) ; — it
therefore becomes subject to the rules of
divine property dependantly. and conse-
quently resembles Zakat and alms-gift.
With respect to what is reported from
Haneefa, that "the appropriators's right of
property is ^extinguished by a decree of the
magistrate/'— our author remarks that this
is approved doctrine, as such a decree removes
all difference of opinion. With respect,
however, to what is further reported from
him, that "the appropriator's right of pro-
perty is extinguished in consequence of his
suspending that upon his decease, it is
altogether unfounded, as his right of pro-
perty cannot be extinguished 'but by his
bestowing the use of the article for chari-
table purposes m perpetuity, in which case
it is the same as a bequest of perpetual
usufruct :--in this instance, therefore, his
right of property becomes extinct, and the
appropriation is absolute.
A decree of the magistrate fixes an appro-
priation ; but the decision of a referee does
not fix it.— IT is related, in the Fatavee Kazee
Khan, that judicial decrees are issued on the
subject of appropriations only in cases where
a person having appropriated a particular
article, and delivered it over to a Mootwalee
or procurator, is afterwards desirous of
resuming it ; and the latter disputes the
resumption, on the plea of the appropriation
being absolute ; and they carry the matter
before a Kazee, who decrees it to be absolute
—Concerning a case where the parties autho-
rize any third person to decide upon this
point, and he decides the appropriation to be
absolute, there is a difference of opinion ; it
is certain, however, that such a decision is
not binding upon parties.
Case of an appropriation made upon 'a
death bed. — IP a person make an appropria-
tion upon his death-bed. Tehavee reports
that, according to Haneefa, It stands in the
same pre iicament with a bequest after death,
— (that is to say, is absolute) : contrary to an
appropriation made during health, which is
held by Haneefa not to be an absolute
nature. The true statement, however, is
that the appropriation in question is not
absolute, according to Haneefa ; but it is
absolute, according to the two disciples ;
with this distinction, however, that the
appropriation here treated of is regarded as
from the third of the appropriator's estate,
whereas an appropriation made during health
is regarded as from the whole of the appro-
priator's property.
The appropriator's right of property is
destroyed : but without a transfer of that
right to any other person — UPON an appro-
priation becoming valid (that is, absolute,
according to the various opinions of our doc-
tors, as here stated,— according to Haneefa,
in consequence of the appropriator's declara-
tion, and the magistrate's subsequent decree
— and according to Aboo Yoosaf, by his sim-
ple declaration. — and according to Moham-
med, by his declaration and delivery to a
procurator),— it passes out of the possession of
the appropriator ; but yet it does not become
the property of any other person ; because, if
this were the case, it would follow that it is
not a state of detention, out may be sold
in the same manner as other property ; and
also, because if the person or persons to
whom it is assigned were to become the pro-
prietor of it, it, it would follow that it could
not afterwards piss out of his possession in
consequence of any condition stipulated by
the fornvr proprietor, — whereas it is not so,
for if a person were to appropriate a dwell-
ing-house (for instance) to the poor of a par-
ticular tribe, and the proverty of any one of
these were afterwards removed, the right in
it passes to the others, which it could not do
if this person were a proprietor.
Any undefined part of a thing may be
appropriated. — THE appropriation of an un-
defined part or portion of anv thirig* is
lawful, according to Aboo Yoosaf. Moham-
med alleges that an appropriation of this
nature is unlawful ; because as actual pos-
session is held bv him to be an essential
(by the procurator taking possession of the
article appropriated), so, in the same min-
ner that without which possession cannot
take place is also an essential, namely,
division ; and this can only be in a thing
capable of division. (With respsct, how-
ever, to a thing incapable of division, the
appropriation of an indefinite portion of »'t
is held to b? legal by Mohammad also as he
conceives an analogy b3tween this and a gift,
or charitable donation). The ground upon
which the opinion of Aboo Yoosaf, procee s
is, that the separation of an indefinite part
of any thing is indispensable to the taking
possession of it ; but as the taking possession
is not (according to him) essential in a case
of appropriation (whence the means of taking
possession is also unessential) it follows that
the appropriation of an indefinite part of
any thins is held by him to be lawful.
From this rule, however, he cxcepts a mos-
que, or burying-ground, the appropriation
of any undefined portion of which is unlaw-
ful, although it be of an indivisible nature ;
because the continuance of a participation
in any thing is repugnant to its becoming the
exclusive right of GOD ; and also, because
the present discussion supposes, the place in
question to be incapable of division, as being
narrow and confined, whence it cannot be
divided but by an alternate application of it
to different purposes, such as its being ap-
plied one year to the interment of the dead,
and the next year to tillage, or, at one time
to prayer, and at another time to the keeping
of horses which would be singularly abomi-
nable. It is otherwise with regard to the
appropriation of anything else than a mosque
*Such as the half, or the fourth, of a field,
house. &c.
234
APPROPRIATIONS
[VOL. II.
or burying ground ; because the appropria-
tion ot an undefined portion of any other
patter, where it is of an indivisible nature,
is decreed to be lawful by all our doctors, as
it may be hired (for instance), and the parties
may divide the rent.
Case of appropriation of land, where an
indefinite portion of it afterwards appears
to be the property of another person, — IF a
person appropriate land,* and it should
afterwards appear that an indefinite portion
of the land (such as the fourth) was the
property of another person, the appropria-
tion is void with respect to the remainder
also, according to Mohammed : because, in
this instance, the separation into indefinite
divisions is associated with the appropria-
tion, which is consequently invalid, in the
same manner as a gift. It is otherwise
where a donor resumes a part of his gift ; or
where the heirs of a donor who had made
the gift upon his death-bed resume two-
thirds of his gift after his decease: for if a
person, upon his death-bed, make a gift or
appropriation of the whole of his property,
and the heirs resume two-thirds, still the
gift or appropriation are not rendered void,
because, in this ^ instance, the separation into
indefinite divisions is supervenient, and not
associated : that is, at the time of the gift or
appropriation, the article was not divided
into undefined portions, but became so after-
wards. If, however it, should appear tha*
another is entitled to a portion of the land,
of a specific and not an undefined nature, in
this case the appropriation is not void with
respect to the remainder, because of no in-
definite division existing in this instance :
and gifts and charitable donations are also
subject to the same analogy.
The objects of an appropriation must be of
a perpetual nature. — AN appropriation is not
complete, according to Haneefa and Moham-
med, unless the appropriator destine its
ultimate application to objects not liable
to become extinct ; as where, for instance, a
man destines its application ultimately to
the use of the poor (by saying, "I appro-
priate this to such a person, and after him
to the poor)." — because these never become
extinct. Aboo Yoosaf maintains that where
the appropriator names an object liable to
termination (as if he were to say, "I have
appropriated this to Zeyd), it is valid, and
after the death of Zeyd it passes, as an
appropriation, to the Poor, although the
appropriator had not named them. The
argument of Haneefa and Mohammed upon
this point is that appropriation requires an
extinction of right of property. Without a
transfer of it ; and as this, like manumission,
is of a perpetual nature, it follows that if a
» *Arab, Akkar : meaning any immoveable
property whatever, whether lands or tene-
ments. Zimeen is the term in the Persian
version and the translator therefore renders
it land throughout.
thing be appropriated to a finite object, the
appropriation is imperfect ; whence it is that
an appropriation is rendered void by making
it temporary, in the same manner as a sale
is made void by limiting its duration.
OBJECTION. — This argument of Haneefa,
that the right of property becomes extinct
without "a transfer of it," contradicts what
was formerly said, that, "according to
Haneefa, in appropriation, the right of pro-
perty is not extinguished."
REPLY. — There are two reports from
Haneefa upon this subject. One of them
is that which was before stated. Another
makes the opinion of Haneefa to agree with
that of Mohammed. Some also allege, in
reply to this objection, that what is here
advanced from him proceeds from a suppo-
sition of the magistrate having decreed the
appropriation to be absolute, under which
circumstance it passes out of the possession
of the approprietor according to all our doc-
tors.
The argument of Aboo Yoosaf is that the
design of the appropriator is to perform an
act of piety acceptable to GOD ; and this is
fully answered in e'ther case ; because piety
on some occassions may consist in the appro-
priation of an article to a terminable object,
— and it may at other times consist in the
appropriation of a thing to an interminable
object : — The appropriation, therefore is
equally valid in both instances; Now some
say that perpetuity is essential to it. Aboo
Yoosaf, however, does not consider the men-
tion of perpetuity as an essential, as the
terms appropriation or charity do clearly
argue thus much, according to what was
before advanced, that "Appropriation, like
manumission, signifies an extinction of a
right of property without a transfer of that
right." According to Mohammad, on the
other hand, the mention of perpetuity is an
essential ; because appropriation is a chari-
table donation of the use of a thing, or of
actual product : and as rhose are sometimes
temporary and sometimes perpetual, the
general mention of it cannot be understood
as a perpetuation : it is therefore indispen-
sable that perpetuity be expressly mentioned.
Appropriation of immoveable and of
movable property. — THE appropriation of
land is lawful ; because several of the Pro*
phet's companions appropriated their lands ;
but the appropriation of movable property
is altogether unlawful, whether purposely,
or as a dependant. This is the opinion of
Haneefa. Aboo Yoosaf alleges that if a
person appropriate lands, together with the
cattle and slaves attached to them, it is law-
ful ; and the same of all instruments of hus-
bandry ; because those are all dependants of
the soil in the fulfilment of the design ; the
appropriation of these, therefore, as depen-
dants of the land, is lawful ; for many things
are admissible dependantly, which are not so
positively ; thus the sale of wine (for in-
stance) by itself is unlawful; whereas, along
with land it is lawful,— and in the same man-
BOOK XV ]
APPROPRIATIONS
235
nor the appropriation of the beam of a house
is unlawful, whereas along with the house
it is clearly legal. The opinion of Moham-
med, also, accords with that of Aboo Yoosaf
in this point, because as he holds the appro-
priation of moveables to be lav ful merely in
virtue of the appropriator's declaration, it
follows that he admits the appropriation of
them as a dependant to be legal a fortiori.
Mohammed is also of opinion that if a per-
son appropriate horses, camels, or arms, to
carry on war against infidels, it is law-
ful ; — in which opinion (as lawyers report),
Aboo Yoosaf coincides with him. This pro-
ceeds upon a favourable construction ; for
analogy would suggest that such an appro-
priation is unlawful, for the reasons already
alleged. The reason for a more favourable
construction, however, is ihit the Prophet
once said, "KuALin hat, approi riated his
HORSE and ARMOUR in the way of C^on ; and
TELLIIIA has appropriated his HORSE in the
way of GOD."* — According to Mulummed,
the appropriation is lawful of all moveables
the appropriation of which is c. mmonly
practised, such as spades, shovels, axes, saws,
plarks, coffins (and their appendages) stone
or brazen vessels, and books : but according
to Aboo Yoosaf it is unlawful ; because
analogy cannot be abandoned but on rhe
express authority of the sacred writings :
and as horses and armour only are there
mentioned, the admission must be restricted
accordingly. Mohammed says that analogy
may be abandoned on account of utility, (as
in arts or manufactures, for instance) ; and
utility exists in the articles in question. It
is, moreover, recorded of Nass~er Ibn Yehee,
that he appropuated his books, as conceiving
that to be analogous to the appropriation
of a KORAN (sn other wor-ls, as i he appro-
priation of a KORAN is lawful, so also is the
appropriation of any other book): and this
is approved, because other books as well as
KORANS are kept for the purpose of reading
and instruction. Most lawyers have passed
decrees according to the opinion of Moham-
med in this part cular. It is written in the
Fatavee -Razee -Khan that there is a differ-
ence of opinion between the hlders concerning
the appropriation of book*. — Fikkea-Aboo-
al-Seyb, however, holds it to be lawful ; and
decrees pa s accordingly.
The appopriation of articles in which it is
not customary is unlawful — IT is not lawful
to appropriate moveables, the appropriation
of which is unusual or uncommon, according
to our doctors. Shafei alleges that the
appropriation is lawful of everything which
admits of the use without a destruction of
the subject, or of everything lawfully sale-
able, because such articles as admit usufruct
resemble land, horses, or arms. The argu-
ment of our doctors is that appropriation
requires propetuity, according to what has
been already stated ; and this cannot exist
in moveables, since these are not of a lasting
nature ; analogy therefore suggests that the
appropriation of moveables In general is
unlawful :— it is admitted, however, in some
articles (although contrary (o analogy),
because of the traditions already recorded, —
and in other articles' (such as axes, saws
and so forth), because of utility : but the
appropriation of furniture, clothes, and
salves, is unlawful, as being contrary to the
suggestions of analogy, because they have
neither tradition nor utility to support the
legality, anvl therefore resemble dirms and
decnars. With respect to what Shafei has
advanced thiit "those articles are analogous
to lands, horses, and armour," we reply that
no analogy cm be admitted between them;
because land endures perpetually ; a-id
horses and armour are instruments of war
against infi lels, which is among the highest
religious obligations, whence the property of
piety exists in the appropriation of these
articles m a much stronger degree than in
the appropriation of other mov.-ables ; — the
analogy, therefore, is not allowe i
An appropriation cannot be sold or trans-
ferred.— UPON an appropriation becoming
valid arid absolute, the sale or transfer of the
thing appropriated is unlawful, according to
all lawyers : the transfer is unlawful, because
of a baying of the Prophet, "Bestow the
ACTUAL LAND ITSEF in charity, in such a
manner that it." An appropriation, there-
foie, is incapable of sale or transfer, upon
becoming valid and absolute
But it may be divided off, where it consists
of an undefined part of anything. — IF, how-
ever, the appropriation consist of an un-
defined pait of any thing, and (in conformity
with the doctrine of Aboo Yoosaf) become
absolute, and the partner require it to be
divided off, such division is lawful ; because
division implies separation and distinction.
•In all things, indeed, except those which are
computable by weight or measure, exchange
chiefly prevails: in appropriation, however,
a superior regard is had to separation and
distinction, in order that the appropriation
may be valid : the dividing it off, therefore,
is not to be regarded in the light of a sale or
transfer, and is consequently legal.
IF a person appropriate his share in part-
nership lands, he must divide it off and
detach it from those of his partner ; because
he alone has authority to do this during his
life, or his executor, after his decease. Jfon
the other hand, a person appropriate the half
(for instance) of his ov^n land, in this case
the Kazee is to divide it off, and alienate it
from the appropriator — (or the appropriator
may sell one halt (for instance) of his land to
any other person, and then divide off the
portion appropriated and alienate it from
that person, and afterwards re- purchase the
remainder from the purchaser*) ;— for the
•This
infidels.
is. in waging war against the
•This is merely a device, for the purpose
of obviating legal objections.
236
APPROPRIATIONS
[VoL IF.
appropfiator is not at liberty himself to
divide off the portion of land which he has
appropriated, or to separate it from that
portion which he has not appropriated,
because one person is incapable of himself
making a: division, and thus giving to him-
self, since division can take place only
between two.
In case of dividing it off, the payment of a
balance made by the appropriator is lawful ;
but if made to the appropriator t it invali-
dates the appropriation. — IP, in dividing off
appropriated land, any balance occurs (as
where a person appropriates his share in
partnership land, and he and his partner
accordingly make a division of the land, and
the share of one of them proves defective,
and the other makes up the difference by a
payment in money), it is unlawful, where
this balance is paid to the appropriator, as
the sale of an appropriated article is unlaw-
ful : but if it is the appropriator who pays
the balance, it is lawful and what he gets in
return is his property ; — if, therefore, he be
desirous of having it divided off from the
part he has appropriated, he must refer the
matter to the Kazee, in order that he may
separate the portion appropriated from what
he [the appropriator] gets in return for the
balance.
The income of an appropriation must be
expended (in the first instance) upon keeping
it in repair. — It is incumbent that the in-
come of an appropriation be in the first
instance expended in the repairs* of it,
whether the appropriator may have stipu-
lated this or not ; because his design was
that the income should serve as a perpetual
furld, and as a perpetual income cannot be
drawn from the article appropriated unless
it be preserved in continual repair, that is
a necessary attendant upon it ; and also, be-
cause all acquisition must be attended with
expense — (in other words, he uho enjoys
the profit must also bear the loss), — In short,
upon the person to whom the advantage of a
thing accrues, must rest the inconveniences
attending it ; and such being the case, it
follows that the repair of an appropiation
resembles the subsistence of a slave whose
service has been bequeathed to any one, for
the subsistence of such slave rests upon the
legatee of usufruct. If, therefore, the appro-
priation be to the poor, and the requisition
of repairs from them be impossible (because
of the appropriation itself being their sole
dependence) the lepairs must be afforded
but of the income arising from it.
Unless the appropriate be rich, in which
case he is answerable for the repairs— IF, how-
ever, the appropriation be to some particular
person, ih the first instance, and after him to
the poor, the repairs are in this case due out
of that person's property (but he is at liberty
*Arab. Tameer ; meaning, the rendering
a place habitable, by cultivation, if it be
land» or by rebuilding) &c,> if it be houses.
to furnish the means out of whatever p?rt of
his property he chooser), during his life : and
in this case no part of the income is laid out
in repairs because the requisition from the*
person who enjoys the benefit is in such
instance possible, since he is specified and
known.
But in sttch a degree onjyt as may suffice
to preserve it in it .<; original state. — IT is to-
be understood, however, that the repairs are
to be made out of the property, only in such
a degree as may be requisite to preserve it
in the state in which it was appropriated J
if, also, it fall to ruin [or run waste] it is to»
be restored to the state in whic'h it was-
appropriated, because the in-come of it was*
made over to others, and was to be derived
from it as in THAT state/ and not as in any
superior state ; and as such income is the
right of him to whose use it is appropriated,
it is not lawful, without his permission, to»
expend it in repairs to a degree beyond the
original state of the appropriation. Some
are also of opinion that the same rule obtains
where the appropriation is to the poor at
large, and not to any particular individual,
— that is to say, the income is not to be ex-
pended in repairs bevortd the original state
of the appropriation. Others allege that this
is lawful. The former, however, is the better
opinion ; because the income arising from an
appropriation is expended in the re pairs of
it only from the necessity of preserving it as
it was originally and there is no necessity
for repairs beyond what may suffice for this
purpose.
The repairs of a house are incumbent
upon the individual occupant pro tern pore — •
IF a person appropriate a house, with this
condition, that his son ^or any other person
shall reside therein during life, the repairs
are incumbent upon him who has the right
to inhabit it, because he who enjoys the
profit must also bear the loss (as has been
already stated), and the case consequently
resembles the subsistence of a slave whose
service has been bequeathed to any person
by his master.
Or ifhe neglect this, the magistrate must
let the house, and furnish the repairs out of
the rent — IF, therefore, the person in ques-
tion refuse or neglect to repair the house, or
be incapable of so doing, from poverty, the
magistrate must in ^this case let it, and pro-
vide for the repairs out of the rent ; and
must return it to him upon the repairs being
completed : because by this means attention
is paid to the rights both of the appropriator
and of the r>erson to whose use it is appro-
priated, if it were not duly repaired,
the tenement would be lost, and the rights
of both would be consequently destroyed;
the repair must therefore be provided out of
the rent, in order that the rights of the parties
may be secured.
But the occupant is not liable to any com-
pulsion— IT is to be observed, however, that
where the per*6n to whom the article is ap-
propriated refuses to make the repairs, he is
BTaax XV.]
APPROPRI \TIONS
237
not to be compelled, because the repairs
would be at his loss, his case being the same
as that of the proprietor of the seedr in a
contract of cultivation, who, if he refuse to
cultivate the land, is not liable to anv com-
pulsion, as the cultivation cannot be effected
without the loss of his property, namely, the
seed.
OBJECTION. — Upon the occupant refusing
to make the repairs, it would appear that
the magistrate should not return the house
to him after the repairs are completed : be-
cause, as he thus assented to the destruction
of his right, and attention to that is unneces-
sary.
REPLY.— The refusal of the occupant to
repair the house does not areue his assent to
the destruction of his right as there is a
doubt with respect to the motive of his
refusal, since it is possible. th:-t he has
refused merely on account of the expense
to his property ; his right, therefore, is not
destroyed because of the doubt.
And none can let the house but the magis-
trate—IT is proper to observe that it is not
lawful for the occupant to let the house,
since he is not proprietor. The magis-
trate, on the contrary, possesses a general
power, as being the igent of the community
Decayed materials ate t» be used for
repairs — SUCH buildings or materials of an
appropriation as become damaged or useless
must be employed by the magistrate in the
repairs of it, where necessary ; and if these
be not immediately necessary, he must keep
the articles in question until such time as
occasion offers when he must employ them
in making the necessary repairs ; as repairs
are required from time to time, in order that
the appropriation may be continually pre-
served, and the design of the appropriator
answered. If the materials of the decaved
place be damaged so much as to render it
impracticable to employ them in tre repairs
(by the timbers being broken, for instance),
it is incumbent on the magistrate to sell
them, and expend the pp'ce in such repairs :
but it is not lawful for him to give them to
the occupants, because the timbers, and so
forth, are constituent parts of the actuil
appropriation, in which no person has any
right.—their right being merely to the use.
and not to the thing itself.
Case of appropriation, with a reserve of
the use to the appropriator during life. — IF
a person appropriate a house (for instance),
with a reserve of the income to his own use
during life, and after his death to go to the
poor; this is lawful , according to Aboo Yoocaf.
Our author remarks that this is deemed lawful
by Aboo Yoosaf ; but that, juding from the
opinion of Mohammed, it is unlawful ; — and
such is the opinion of Hillal Kazee and Shafei
respecting it. Some allege that the difference
between Aboo Yoosaf and Mohammed upon
this point is occasioned by their difference of
opinion concerning the neeessity of consign-
ment ; for, according to Mohammed, the
consignment of the appropriation to the
Mootwalee, or procurator, is an essential, and
consequently it is unlawful for the appro-
priator to reserve the in*orn« to himself :
according to Aboo Yoosaf, on the contrary,
this is lawful, as he does not hohi the con-
signment to a procurator to be an essential.
Others, again, allege that their difference
upon this point is not occasioned by their
Difference upon any other point, but is merely
an original difference of opinion with respect
to the present case itself. This difference of
opinion between disciples subsists in every
case that is, whether the appropriator reserve
the whole or a part only of the income to him-
self during life, and after his death to go to
the poor. If, also, the appropriator reserve
the whole or part of the income from his
appropriation to the use of his Am-Walids,
or his Moc^abbirs, during their lives, and after
their deaths destine it to the poor, some say
that this is lawful acrording to all our
doctors. Others, however, maintain that, in
this instance also, the abo\/e difference of
opinion obtains ; and this is approved, because
his reserving the income to their use for their
lives is equivalent to his reserving it to his
own use The argument in favour of Mo-
hammed's opinion is that appropriation is a
gratuitous act. effected in the transfer of a
property to GOD; by delivering over the thing
appropriated to a Mootwalee or procurator
(for a transfer to the Almighty, who is h'm-
self the proprietor of all things, although it
cannot be effected actually and expressly,
yet may be so dependently : and the reserving
of the whole or part of the income arising
from it to his own use is repugnant to this,
because, the delivery cannot be made to
himself — The case, therefore, resembles the
reserve of an alms-gift, — and also the reserve
of a part of a mosque :--in other words, if a
person were to assign certain property to the
poor, stipulating at the same time, that his
right in part of it should continue, the alms
under such a condition are unlawful ; — or, if
the founder of a mosque stipulate that fis
right in a part of the mosque shall continue,
this opposes the legality of the whole founda-
tion : — and so also in the case in question.
The arguments of Aboo Yoosaf upon this
point are threefold, FIRST, the Prophet was
accustomed himself to consume the revenue
arising from what he had appropriated. Now
the use would not at any rate be lawful,
unless the appropriator had previously stipu-
lated it for himself at the time of appro-
priation : the Prophet consuming the revenue
therefore, argues <that it is lawful for an
appropriator to reserve that to his own use.
SECONDLY, appropriation implies the owner
of a property destroying his right in that
property by a frapftfer of it to GOD, under
some pious intention (as was formerly stated ;
and such being the case, where an appro-
priator reserves a part or the whole of the
revenue arising from what he appropriates
to his own use, it follows that; in so doing ;
he reserves to himself a thing which is the
property of GOD (not that he reserves to him-
238
APPROPRIATIONS
[VOL. II.
seff what la his own), and a person's reserving
to himself a thing which is the property of
GOD is lawful ; thus, if a man build a cara-
vansera, or construct a reservoir, or give
ground for a burial-place, reserving to him-
self the right of residing in the caravansera,
or of drinking water out of the reservoir, or
of interment in the burial-place, it is lawful ;
and so likewise in the case in question.
THIRDLY, the design, in appropriation, is the
performance of an act of piety ; and piety
is consistent with the circumstance of a per-
son reserving the revenue to his own use, as
the Prophet has said, "A man giving a sub-
sistence to HIMSELF is giving ALMS."*
Or, with a reserve of a liberty to change
th€ subject.— IF the appropriator reserve to
himself a right of changing the lands he
appropriates for any other lands, at plea-
sure, it is lawful, according to Aboo Yoosaf,
Mohammed maintains that the appropria-
tion itself is valid, but that the condition
reserved is void ; because the con Jition does
not prevent an extinction of right of pro-
perty ; and the appropriation is consequently
complete, because of the extinction of this
right ; but not the condition, as being invalid,
is void, in the same manner as the reserve
of a right of change, in the foundation of a
mosque, is void.
Or, with a reserve of a right of option. —
IF the appropriator reserve to himself a right
of option with respect to his appropriation,
for three days, by saying (for instance) "I
appropriate this house to such and such purs
poses, with this condition, that I shall have
a right of option for three days ; accord-
ing to Aboo Yoosaf, both the appropriation
and the condition are lawful. According to
Mohammed, on the contrary, the appropriation
is null. Their difference of opinion upon this
point originates in the difference of their doc- j
trine respecting a reserve of the revenue of an '
appropriation to the use jf th* appropriator :
for a&, according to Aboo Yoosaf, an appro-
priator may lawfully reserve to his own use,
during life, the revenue arising from what
he appropriates, it follows that he deems it
lawful that the appropriator reserve a right
of option for three days, for the purpose
of consideration Mohammed, on the other
hand, holds that the possession of a Moot
walee, or procurator, is an essential, and as
a reserve of option prevents possession from
being completely taken, it follows that,
according to him, the appropriation is void.
An appropriation, moreover, is not complete
without the will of the appropriator ; and
as, where he makes a reserve of option, this
cannot be ascertained, it follows that the
appropriation is void ; had being once void,
•As where (for instance) a man appro-
priates the whole of his property, thus re-
ducing himself to poverty ; in which case the
charity is as effectual with respect to him
(where he necessarily reserves a sufficiency
from the product for his own sustenance) as
With respect to any other pauper.
its validity cannot afterwards be restored by
the condition ceasing to operate.
Or with a respect of authority — IF a
person appropriate land, with a reserve of
his authority over it, it is lawful, according
to Aboo Yoosaf. — Our author remarks that
Kadooree has expressly declared this. Such
also is the doctrine of Hillal ; and it is,
indeed, the generally received opinion. Hil-
lal particularly mentions it in treating of
appropriations. Some doct rs allege, that
if the appropriator pirticu'arly stipulate a
reservation of authority over the lands, this
authority remains to him accordingly ; but
not unless it be particularly stipulated by
him. Our modern doctors, however, consider
it as very doubtful whether this b^ an opinion,
of Mohammed, because it is a tenet of his
that delivery into the hands of a procurator
is essential to the validity of an appropria-
tion ; and where such delivery takes place
the appropriator can no longer p issess any
authority over it. According to the tenets
of Aboo Yoosaf, on the o'h r hand, the
delivery to a procurator is not an essential,
and consequently the authority remains
with the appropriator, although he should
not have so stipulated. What was men-
tioned above, concerning the opinion of
Mohammed, that "where the delivery to
a procurator takes place, the appropriator
can no longer retain any authority «^ver the
appropriation/' applies to a case wliere the
appropriator had not stipulated any reser-
vation of authority to himself at the first : —
for if he had stipulated this at the time of
making the appropriation, his authority is
not rendered void by delivery to a procu-
rator, because as his authority continues
where he stipulates a right of authority in
behalf of another, it follows that, where ho
stipulates it ii behalf of himself, it continues
a fortiori. — The arguments in support of
the* opinion of Aboo Yoosaf (which is
the most generally received doctiine). arc
twofold. FIRST, the procurator enjoys hi*
authority, only on behalf of the appro-
priator, in consequence of his reservation ;
and it is impossible that the appropriator him-
self should not be possessed of any authority,
at the same time that another person enjoys
an authority held on his behalf — SECONDLY,
the appropriator stands in a nearer relaions
to what he appropriates than any other
person, and it is consequently proper that
he possess an authority over it ; in the same
manner as where a person builds mosque,
in which case the business of repairing it, as
well as the appointment of all the officers,
&c , appertain solely to him ; or as where a
person emancipates a slave, in which case
the Willa appertains solely to him, as he
stands in a nearer relation to the slave
than any other person.
IF, however, the appropriator who makes
this condition (namely, a reservation of
authority to himself), be a person of infa-
mous character and unworthy of confidence,
the magistrate may take the appropriation
BOOK XV.
APPOPRIATIONS
239
out of his hands, from a regard to the
intere t of the poor ; in the same manner as
he is at liberty to suspend the powers of an
executor, where he happens to be a person of
bad character, from a regard to the interest
of the orphans. If, also, an appropriates
constitute another the Mootwalee or pro-
curator, declaring that "the sovereign or
magistrate shall not take the appropriation
out of his charge, " yet these are at liberty
to take it from him, wlure he happens to be a
person of bad character ; -because, as such a
declaration is repugnant to the precepts of
the LAW, it it consequently void.
Section
A mosque is not alienated from the founder
otherwise than by the preformance of public
worship in it. — IP a person build a mosque,
his right of property in it 13 not extinguished
so long as he does not separate it from the
rest of his property, or give general admis-
sion to people to come and worship in it : but
as soon as the people in general, or a single
pjrson, say their prayers in it, his right of
property is extiguished, according to Ha-
neefa. The utter separation of it from the
rest of the appropriator's property is indis-
pensable, for this reason that the mosque
cannot become dedicated solely to G JD until
that be effected : and the performance of
prayer in it is a condition ; hecause, as a
consignment (according to Haneefa and Mo-
hammed) is indispensable, it follows that
consignment is requisite in this way,, since
in whatever way may be proper to the
nature of the appropriation ' and the mode
of consignment proper to a mosque is public
worship ; or. the p -rformance of prayer is a
condition, because as it cannot be conceived
that GOD himself should take possession of
a mosque, it follows that that which is the
design must stand as a substitute for the*
taking possesbion of it. It is proper in this
place to observe that if a single person say
his prayers in the mosque it suffices (ac-
cordmij to one report from Haneefa and
Mohammed); because, as it is impossible that
all men should perform their prayers in it,
the circumstance of a single individual
performing his prayers is the condi-
tion. It is also reported, from Haneefa and
Mohammed, that the performance of prayer
by a whole congregation is a necessary con-
dition, because a mosque is founded with a
view to public worship. Aboo Yoosaf main-
tains that the founder's right of property is
destroyed immediately upon his saying, " I
constitute this a mosque 1" — because he does
not hold consignmant to be a condition, since
according to him, appropriation signifies a
relinquishment of right on the part of the
individual ; the thing appropriated, there-
fore, appertains solely to GOD merely in
consequence of the right of the individual
ceasing, — as was before demonstrated.
Cases of a mosque, as connected with a
dwelling-place. — IF a person erect a building
of two stories, making the under storey a
mosque, and the upper storey a dwelling, or
vice versa, — with the door of the mosque
towards the public road, and detach the
mosque from his own property [in the man-
ner before described], he is nevertheless at
liberty to sell it;— or, if he die, the mosque
is an inheritance ; — as the mosque does not
in this instance, appertain solely to Gop,
because of the individual's right in it still
subsisting. This, however, is only where
the dwelling has not been constructed
merely for ihe put poses of the mosque : for
if it h we been constructed for the purposes
of the mosque (as in the great mosque at
Jerusalem), the appropriation is absolute,
Hasan reports from Haneefa, that if the
lower storey be a mosque, and the upper story
a dwelling, the former continues for ever a
mosque ; because a mosque is one of those
things which are designed to continue in
perpetuity, and an under storey answers this
purpose better than an upper storey. The
reverse of this is reported from Mohammed,
because reverence is indispensably due to a
mosque and wh re an upper storey is con-
structed over a mosque, for the purpose
either of dwelling in or of letting out to
hire: this reverence cannot be observed. It
is recorded, also, that when Aboo Yoosaf
went to Bagdad and beheld the narrow and
crowded condition of the place, he held the
appropriation to be lawful and absolute in
either case, — that is, whether the mosque be
in the lower storey and the dwelling in the
upper, or vice versa: — but this he admitted
out of necessity. The same is recorded of
Mohammed, when he went to Rai,* and for
the same reason.
IF a person convert the centre hall of his
house into a mosque, giving general admis-
sion into it, still it does not stand as a mosque
but remains saleable and inheritable : be-
cause a mosque is a place in which no per-
son possesses any right of obstruction ; and
wherever a man has such a right with respect
to the surrounding parts, the same must
necessarily affect the place inclosed in them.
This place, therefore, cannot be a mosque:
besides, it is necessarily a thoroughfare for
the family, and consequently does not ap-
pertain solely to GOD. It is reported from
Mohammed that the centre hall of a house,
thus constituted a mosque, cannot after-
wards be given away, sold, or inherited.
He consequently considers it to stand as a
inosque ; and Aboo Yoosaf is of the same
opinion, because, as 4he person in question
was desirous, that this pi ce should become
a mosque, and as it cannot become so with-
out a road, or entrance into it, the road is
included without specification, in the same
manner as in a case of hire.
Ground appropriated to building a mosque
cannot be sold or inherited — IP a person,
appropriate ground for the purpose of erect-
•The capital of Irak (the ancient Chaldea).
240
APPROPRIATIONS
[VOL. II.
ing a mosque, he cannot afterwards resume
or sell it, neither can it be inherited, because
this ground is altogether alienated from the
right of the individual, and appertains solely
to GOD. The reason of this is that all things
whatever are originally the property of the
Almighty, When, therefore, the individual
relinquishes his right in the ground, it
reverts to its originrl state, and his power
over it terminates, in the same manner as a
master's power over a slave terminates in
consequence of manumission, and cannot be
resumed.
A mosque cannot, in any instance, revert
into the property of the founder. — IF the
place in which a mosque is situated should
become deserted or uninhabited, insomuch
that there is no farther use for the mosque,
no person coming to worship therein, still it
continues to stand as a mosque (according
to Aboo Yoosaf), and does not revert to the
founder ; because, as he had put it out of
his own possession, it connot a*ain become
his property. Mohammed alleges that the
mosque again becomes the property of the
founder, or of his heirs, in case of his de-
cease : because he had erected it for the pur-
pose of public worship : and as that has
ceased, the mosque is in the same predica-
ment with the materials for building a
mosque. In other words, if there be no
farther occasion for materials (such as bricks
and so forth) designed for the erection of a
mosque, they revert to the founder, and so
also in the case in question. This, however,
is a conclusion which does not accord with
the doctrine of Aboo Yoosaf for he holds
that where there is no farther occasion for
those materials in the construction of this
mosque, they must be carried to another.
Cases of appropriations made to the use
of the community at large: — IF a person
construct a reservoir for public use, or a
caravansera for travellers, or erect a house
upon the infidel frontiers for the accommo-
dation of the Mussulman warriors in their
excursions (which is termed a Ribat), or
dedicate ground as a burying place, his
right of property therein is not extinguished
until the magistrate issue a decree to that
effect ; because no termination of the pro-
prietor's right takes place in this instance,
insomuch that he may still lawfully con-
tinue to use those things (by residing in the
house or Ribat, or drinking water out of the
reservoir, or interring in the burial-place).
It is therefore requisite either that the
magistrate issue a degree, in order to com-
plete the alienation, or that the founder him-
self refer the appropriation to his decease, in
order that it may stan\l as a bequest, and
become absolute upon that event, in the
same manner as in the case of an appro-
priation made to the use of the poor. It is
otherwise in the case of a mosque, because
in that instance no right of usufruct remains
to the founder, as the mosque appertains
solely to GOD independent of any magis-
terial decree. All that is here advanced is
according to Haneefa. Aboo Yoosaf is of
opinion that the person's right of property
ceases on the instant of his saying, "I lhave
made this for such and such purposes" (of
residence, interment, or so forth), because
with him it is a rule that appropriation is
absolute, and that consignment is not a con-
dition of it. Mohammed maintains that as
soon as people drink water out of the reser-
voir, or enter the caravansera, or warriors
take up their residence in the Ribat, or in-
terment takes place in the bury ing-ground,
the proprietor's right is extinguished; be-
cause consignment (which he holds to be
a condition) is established by such acts, as
the consignment of any thine? must be made
in the mode proper t-> that thing. It is
sufficient also (according to him) if these
acts be performed by, or with respect to
only a single individual; because as the
whole community cannot engage in those
acts, regard must necessarily be had to
them as performed in any single instance*.
\Veils and fountains are also subject to the
same rule.
Thev may be consigned to a procurator. —
IF, in the cases last recited, the founder con-
sign the article to a Mootwalee or procurator,
such consignment is approved, because the
procurator is in the character of a deputy,
and the act of the deputy is the act of the
principal. With respect to a mosque, indeed
some allege that the delivery of it to a pro-
curat r is not a complete consignment, be-
cause there is no business for a procurator
in a mosque. Others again say that con-
signment is established, as it is necessary, in
a mosque, that there be some person to keep
it in order, and lock up the doors ; the con-
signment of a mosque, therefore, to a pro-
curator is approved Some also assert that
a burying-grouncl is considered in the same
light as a mo«quc in this particular, because
the procurator of a burying grot nd is an
office not in use. Others, again, maintain
that it resembles a reservoir, or caravansera;
if. therefore, it be delivered to a procurator,
consignment is established ; because such an
appointment is valid, although it be con-
trarv to general usage.
Appropriations may be consigned to ihc
prince of chief magistrate — IF a man, hav-
ing a house in Mecca, appropriate it to the
accommodation of pilgrims, or if a person,
haying a house in any other place, appro-
priate it to the accommodation of the poor,
or mendicants, or, having a house upon the
frontiers, dedicate it to the accommodation
of the Mussulman warriors and their cattle,
or dedicate the revenue from his lands to the
support of the warriors in the way of GOD,*
and make over or consign those houses or
lands to the prince (who is empowered to
act in those oarticulars) such consignment
is lawful. If, therefore, the person in ques-
* That is engaged in war against the
infidels.
BOOK XVI.— CHAP. I ]
SALE
241
tion be afterwards desirous of revoking his
appropriation, he cannot lawfully do so, for
the reasons before alleged. The revenue
arising from the lands, however, is lawful
to the poor only, and not to the rich ; but
the use of any of the other articles (such
as residing in the caravan sera, or drinking
water from the well, fountain, or reservoir)
are lawful to rich and poor alike The rea-
sons of this distinction are twofold. FIRST,
people in general, in the appropriation of a
revenue, intend only the relief of the needy,
whereas, in that of the other articles, the
accommodation of rich and poor is equally
ind?nded. SECONDLY, the articles of drink
and lodging are requisite equally to the
rich and to the poor ; but in the article of
pecuniary assistance, the rich are not neces-
sitous, on account of their wealth, whereas
the poor are necessitous.
BOOK XVI
OF SALE.
Definition of the terms used in sale —
BEEYA, or sale, in the language of the LAW,
signifies an exchange of property for pro-
perty with the mutual consent of the parties
Shirra signifies purchaser. The seller is termed
Bayee : the purchasee Mooshterree : the
thing sold Moobea : and the price Simmin.
Chap. I. — Introductory,
Ciap. II. — Of Optional Conditions.
Chap. Ill — Of Option of Inspection.
Chap. IV.— Of Option of Defect
Chap. V. — Of invalid, null, and
abominable sales.
Chap, VI. — Of Akala, or thp dissolu-
tion of Sales. •
Chap^ VII.— Of Sales of Profit and of
Friendship.
Chap. VIII.— Of Ribba, or Usury.
Chap. IX.— Of Rights and Appen-
dages.
Chap. X.— Of Claims of Right.
Chap. XL— Of Silim Sales.
Sale is contracted by declaration and
acceptance. — SALE is completed by declara-
tion and acceptance, the speech of the first
speaker, of the contracting parties, being
termed the declaration, and that of the last
speaker the acceptance. Thus, if Zeid
should first say to Omer, "I have sold to
you a particular article belonging to me for
ten dirms," and Omar should then say, "I
have bought that article belonging to you
for the said price," the speech of Zeid is in
that case termed the declaration, and that of
Omar the acceptance. If, on the contrary,
Omar should first say to Zeid, "I have
purchased a particular article belonging to
you for ten dirms/' and Zeid should then
say, "I have sold the same to you for the
said price," the speech of Omar is in this
case teamed the declaration and that of Zeid
the acceptance.
Expressed either in the preterite or the
present — IT is a necessary condition that
the declaration and acceptance be expressed
(in the present or preterite tense indicative ;
for if either be expressed in the imperative
or future the contract is incomplete. Thus,
if the seller should say to the purchaser. "Buy
this article belong to me for ten dirms,"
and the purchaser reply, "I have bought the
said article for ten dirms," — or if the seller
should say "I have sold thii article to you for
ten dirms/' and the purchaser reply, "I will
purchase the said article for ten dirms;" —
in neither case would the sale be binding.
Or by any expressions calculat • d to convey
the same m^an\n%. — IT is to be observed that
in the same manner as a sale i<j established
bv the words "I have bought/' or "( have
sold :so also is it established by an other
uords expressive of the same meaning; —
as if either of the parties, for instance,
should say, "I am contended with this
price," or "I have given you this artic e
for a certain price :" or "take this article
for a certain price ;" because, in sale,
regard is had to the spirit of the contract,
and the particular use of the words bought
and sold is not required ; whenc it is that
sale mav be contracted simply be a Taata or
mutual surrender, where they seller gives
the article sold to the purchaser, and the
purchaser in return gives the price to the
seller, without the interposition of speech.
Some have alleged that this mode of sale by
a mutual surrender is valid with relation to
things of small value ; but not otherwise
It is, however, certain that sale by a mutual
surrender is valid in everv case, as it estab-
lishes the mutual consent of the parties.
OBJECTION — It would appear that the
sale, as recited above, to be rendered com-
plete by the words "Take this" &c. is not
valid, as it was before declared to be a neces-
sary condition that both declaration and ac-
ceptance should b*» expressed in th.' present or
preterite tense indicative, and neither of
them in the imperative.
REPLY.— In this case the words "Take,"
&c . are not of themselves declaration, but
merely indicate the existence of a declara-
tion in the preterite tense ; — as if the seller
had first said, "I have sold this thing," and
were then to add, "Take this," &c , for the
command is consequent to the declaration.
The acceptance may be deferred until the
breaking up of the meeting ; whether the
declaration be made personally. — IF either
of the parties make a declaration, it is in
the power of the other to withhold his
acceptance or refusel until the breaking up
of the meeting ; and this power is termed
the option of acceptance.* The reason of
this is that if such a power did not rest 1n
"•"Arab, "Khafr'-aUKabooir
16
242
SALE.
[VOL. II.
one of the parties, it must necessarily follow
that the sale would take effect without his
consent. It is to be observed, in this
instance, that as the declaration is not of
itself efficient to complete the contract, the
ptrson making the declaration is at liberty
to recede from it.
Or by letter, or message. — Ir either the
buyer or seller should send a letter or a
message to the other, that other has the
power of suspending his acceptance or re-
fusal until he leave the place or meeting
where he received such message or letter.
An offer made by the purchaser cannot be
restricted by the seller, to any particular
part of the goods. — IF the purchaser make a
declaration of his purchase of merchandise
at a particular price, the seller is not in that
case entitled to construe his acceptance as
limited to a part of the merchandise only at
a rate proportionate to the declaration for
the whole ; — and, in the same manner, if
a seller should make a similar declaration,
the purchaser is not at liberty to construe
his purchase after that manner ;— because
this is a deviation from the terms proffered ;
and also because the declarer has not ex-
pressed his assent thereto.
Unless he ovpose a particular rate or price
to particular parts or portions. — IF, however,
the person who makes the declaration
should specify a particular rate, opposed
to particular parts of the merchandise, the
acceptance may be limited. Thus if a person
should say. "I will sell this heap of grain for
ten dirms," the purchaser, if he declare his
acceptance, is not in that case at liberty to
limit his purchase to half the grain for five
dirms ; whereas, if the seller should say, "I
will sell this grain at the rate of one man for
a dirm," the purchaser after declaring his
acceptance, may limit his purchase to what
quantity he pleases.
// the acceptance be not expressed in due
time, the declaration is null — IF either a
seller or purchaser make a declaration, and
one of the parties quit the place before any
acceptance be expressed, the declaration so
made is void.
Declaration and acceptance, absolutely ex-
pressed, render the sale bind ing.-— WHEN the
declaration and acceptance are absolutely
expressed, without any stipulations, the sa'e
becomes binding, and neither party has the
power of retracting unless in a case of a
defect in th« goods, or their not having been
inspected. According to Shafei, each of the
parties possesses the option of the meeting*
(that is, they are each St liberty to tetract
until the meeting break up and a separation
take place),— -because of a saying recorded of
the Prophet "The buyer and seller has each
an option until they separate." Our doctors
argue that the dissolution of the contract,
after being confirmed by declaration and ac-
ciptance, is an injury to right of one of
* Arab. Khair-al-Majlii.
the parties ; and that the tradition quoted by
Shafei alludes to option of acceptance, as
already explained.
Where the article and the price are both
produced, the sale is complete, without any
specification of quantity or amount.— IF. at
the time of concluding a contract of sale,
either the merchandise, or the price, or both
be present and alluded to in it (as if the seller
should say, "I have sold this wheat to you for
these dirms," or the purchaser, "With these
dirms now present I have purchased such an
article belonging to you"), in this case the
sale is valid, although neither the quantity of
wheat (such as "so many loads," for in-
stance), nor the amount of the money (such
as "so many dirms"), be mentioned ; for the
reference made to them is sufficient to ascer-
tain the subjects of the contract, and docs not
leave room for any dispute.
But a mention of money : without a speci-
fication of the sum (unless it be produced upon
the spot), is not valid — IF, at the time of con-
cluding the contract, the dirms or deenars be
not present, so as to admit of being referred
to ; in t.'iis c-ise the general mention of
them, without a specinca'ion of the numbers
or of the quality, is not vaiid ; because the
delivery of them on the part of the purchaser
is requisite ; and as the general mention of
them would occasion a contention between
the purchaser and seller (the one wishing to
give a few and of a bad quality, the other
insisting on a greater number and a better
quality), the delivery would therefore be-
come impracticable. (It is here proper to
observe, that every species of uncertainty
which may prove an occassion of contention
is invalid, in a contract of sale.)
A sale may be cnteied into either for ready
i money, or with specification of a promised
time of payment* — A SALE is valid either for
ready money or for a future payment : pro-
vided the period be fixed ; because of the
words of the Koran, ' 'ABSOLUTE SALE is LAW-
FUL ; " and also, because there is a tradition
of the Prophet having purchased a garment
from a Jew, and promising to pay the price
at a fixed future period, pledging his coat of
mail for the performance of it. It is indis-
pensably requisite, however, that the perior
of payment be fixed as an uncertainty in
this respect might occasion a contention, and
be preventive of its execution, since the seller
would naturally demand the payment of the
price soon, and the buyer would des.re to
defer it.
The price must be stipulated at some known
and determinate rate. — A SALE, stipulating a
payment of dirms in an absolute manner (as
if a person should say, "I have sold this for
ten dirms") is valid : provided, however, that
all the different species of dirms be of the
same value : and in that case the purchaser
is entitled to pay the price in any of the
species he pleases.— If the different species of
dirms be of different value, the sate then rests
upon that which is most generally in use. If,
however, the different species be of different
BOOK XVI-CHAP. I
SALE
243
values, and it be impossible to ascertain ths
one of most common use, the absolute expres-
sion of dirms in this ca*e renders the sale
void, because the price being thereby ren-
dered uncertain, a contention must necessarily
ensue : still, however, if the parties choose to
remove the cause of contention by voluntarily
fixing the rate, the sale is valid.
Grain mav be sold for other qrain of a
different specie*.— IT is lawful to sell wheat,
or other kinds of grain either by means of
measures of ranacitv. or bv conjecture,*
provided it be in exchange for a different
kind of grain : berante the Prophet has sa;d,
"SHI anv t1 ing that is in exchange for a
different kind, in whatsoever manner you
please and without regard to the rqualitv :"
and also. beranse the uncertainty in this
case proves no bar to its delivery. It is »">ot
lawful. how*ver, to sell grain in exchanpe
for the samp kind, bv conjecture, because this
is of an usurious nature.
Good* mav ^e wld bv a weight or. measure-
ment which i* n"t of nnv part'ciiim standard.
— IT is lawful, in «ale. to t'«e the measure of
a particular vessel of which the exact capa-
' citv mav not be ascertained, — or the weight
of a particular stone, the *»xact weic'hr of
which i* not ascertained, — because the un-
rert*intv in this ca*e cannot be productive
of contention, sinre either of these instru-
ments of estimation mav be used ind the
delivery take place immediately after ; an 1
it is not probable that the vessel nr stone
^hould be lost or destroyed in the interval
between the measurement and the deliverv,
the only case in which a contention could
arise.
Except in a rase of Si//im *a1e — A MEA-
SUREMENT of this kind, however, is not
allowed in Sillim rales (that is, where t^e
price is advanced, and the merchandise de-»
liv?red afterwards), berause in such case
there is a proSailitv of the vessel or si one
being lost or destroyed during the long
interval that takes place between the con-
clusion of the contract and the deliverv of
the goods ; in which ca«e, as the parties had
no other crit rion (during the existence of the
stone or vessel) than their eyesight to judge
from, a contention might afterwards arise as
to the size or weight of the stone or vessel.
A sale fixing a particular price to each
particular part or portion of goods, in the
gross, extends only to one such part — IF a
person sell a heap of grain, by declaring, "I
have sold this heap at the rate of one dirm
for everv Kafeez," t in this case (according
to Haneefa) the sale takes place in one
Kafeez only : nor can it extend bevond that
quantity, unless the seller should exolain,
in the same meeting, the sum of the Kafeez's.
The two disciples are of opinion that the
sale of the whole is valid in both cases,
•Meaning, by Estimate.
|A measure containing about sixty-four
pounds weight.
The reasoning of Haneefa is that it is im-
practicable to extend the sale to the whole of
the heap, because both the goods to be de-
livered and the price to be received are in
this case uncertain : it must therefore be
construed as existing in one Kafeez. the only
ascertained quantity. It is rendered valid,
however, uith respect to the whole quantity,
by the removal of the uncertainty,— -that is,
by the seller either exp'aininjj the total, or
ascertaining it by measurement during the
meeting. T1 e argument of the two disciples
is, that the p^wer of n moving the uncer-
tainty rests with the parties : and that the
uncertainty, in this case, ought not to be
deemed a bar to the validity of the sale ; in
the same manner as it is not a bar where a
person sells one slave out of two. leaving it
in the option of the purchaser to fix one either
of th«*m
And a sale expressing the whole quantity ,
in this way, i* altogether void, unless the
amount of the whole be particularly specified
— IF a person say. "I have sold my flock of
yoats at the rate of one dirm for each," the
sale in that case is altogether invalid, — in
other words, it is not extended ev.^n to one
goat, — according to Haneefa ; and in the
same manner, the sale is altogether invalid
if a person sell cloth at the rate of ons dirm
the yard, without explaining the number of
vards ; and the same of every other article,
such as wood, pots, or the like. The two
disciples are of opinion that, in all these
cases, the sale is valid with respect to the
whole quantity ; because the removal of the
uncertainty is in the power of the parties ;
and also, because such uncertainty does not
prevent the validity of the sale, as is demon-
started in the preceding case. The argu-
ments of Haneefa in sup; ort of his opinion
are also the same as those advanced by him
in the preceding case ; — in which, however,
he has admitted the validity of the sal* with
respect to one Kafeez of wheat, because all
Kafeez' s of wheat be ins the same, no con-
tention can arise in the delivery of it, —
whereas, in the case in question, the different
articles, comprehending in themselves un-
equil unitirs the delivery could not be
made withoutcontfn ion.
If the quantity agreed fm fall s^ort, the
purchaser mav either take it, or undo the
contract. — IF a person purchase a heap of
grain for one hundred dirms, on the condi-
tion of the heap amounting to one hundred,
Kafeez's; and it be afterwards discovered to
fall short of that arrJbunt, in this case the
purchaser has the option of either taking the
actual amount, at a rate proportioned to the
terms of the contract, or of undoing th *
contract entirely ; because a branch of thc
terms takes place before the deed is rendered
complete since, in order to render the deed
complete, it is necessary that the actual quan-
tity stipulated be taken possession of.
But, if it exceed, the sale is valid to the
amount of the quantity bargamea /or.— IF'
on the other hand, the heap be afterwards
244
SALE
[VOL. If.
found to contain an excess beyond the stipu-
lated amount; the sale is valid with respect
to the amount of the one hundred Kafeez's,
and the excess continues the property of the
seller ; because the sale is restricted to a
specific quantity ; and the excess is not
included in the description, so as to be
a dependant thereof, and not a separate
article.
If the quantity be of a nature capable of
specification and fall short, the purchaser
may either take it, or undo the bargain. —
IF a person sell a piece of cloth for ten dirms,
on the condition of its contents amounting
to ten yards, — or a piece of ground for one
hundred dirms, on condition of its measuring
one hundred yards, — and a deficiency after-
wards, appear, the purchaser has in that case
the option either of cancelling the bargain
entirely, or of taking the ground, or cloth
thus defective, at the stipulated price ; for
the specification of yards is a mpre descrip-
tion of the length and breadth ; and no part
of the price is opposed to the description of
the wares ; — in the same manner as in cases
with respect to animals ; — in other words; if
a person purchase a goat, which afterwards
appears to want an ear, he would have the
option of taking the defective goat for the
price stipulated, or of undoing the bargain :
but he would have no right to diminish the
price on account of such defect, because no
part of the price is opposed to the car in
particular, so as to admit of any fixed dimi-
nution on account of its deficiency ; — and so
also in the case in question. It is otherwise
in the preceding case, relative to wheat ; be-
cause there the deficiency comes under the
head of the quantity and not the description
of the wheat ; and the price being opposed
to quantity, a proportionate diminution is
accordingly made from it. Still, however,
the purchaser has the option of undoing the
contract if he please, on account of the
difference from the terms ; his consent
having been given to the purchase of one
hundred Kafeey/s.
But if it exceed, the sale is binding to the
amount agreed for. — IF however, the ground
or the cloth should prove larger than the
description, in this case the excess becomes
the property of the purchaser, and no option
remains to the seller, because (as has been
already explained) the specification of yards
relates merely t& description and not to sub-
stance. The case, in short, becomes the
same as if he had sold a slave on the sup-
position of his being Defective, but who
afterwards proves to be perfect.
// the quantity be so expressed as to relate
both to description and to substance, the pur-
chaser may either stand to or undo the bar-
gaint whether it exceed or fall short of the
amount specified. — IF a person sell a piece
of* cloth, by declaring, "I have sold this
piece of cloth, which measures one hundred
yards, at the rate of one dirm for each yard,"
and a deficiency should afterwards appear,
in this case the purchaser has the option!
either of taking it, with a proportional
deduction from the price, or of dissolving
the contract entirely ; because, although the
specification of yards comes under the head
of description, yet in this case the yards are
considered as relating to the substance, the
seller having opposed the price to each of
them, which renders each (as it were) a
separate piece of cloth. Besides, if the
seller should take the defective quantity at
the rate proposed for the whole, it would
follow that the terms of the contract (namely,
the payment of one dirm per yard) did not
take place : — if, on the other hand the
amount of the cloth exceed one hundred
yards, the purchaser has, the option, either
of taking the whole, at the late of one dirm
for each yard, or of dissolving the bargain :
for although he has an advantage in the
receipt of more cloth than he had contracted
for, yet this being tempered with a loss, in
the necessity it lays him under of paying an
additional sum, he is therefore left at liberty
either to abide by the contract on these con-
ditions, or to undo it.
The sale of a specific number of yards nf
a tenement is nUl ; but not the sale of a
share — If a person purchase ten yards of
a house or bath measuring one hundred
yards, such purchase is invalid, according
to Haneefa, whether the buyer may or may
not have known the measurement of the
whole house. The two disciples maintain
that it is valid. If, on the contrary, a per-
son purchase ten shares of a house or bath
containing one hundred shares, it is valid,
in the opinion of all our doctors The argu-
ment adduced by the two disciples in support
of their opinion is, that ten yards of house
of an hundred yards in capacity are in fact
the same as ten shares out of an hundred
shares. Haneefa, in support of his doctrine,
argues that a yard, in its original meaning,
is a stick applied to the purpose of measure-
ment ; but it is also used to denote the thing
measured, and the thing so measured must
be relative and not an abstract idea of the
mind, such as a share : now it is impossible,
in this case, to render such yards relative,
since there exists an uncertainty, as no men-
tion is made of the particular s dc of the
house from which they have been measured :
and such uncertainty would o:casion conten-
tion between the parties. It is otherwise
with respect to shares, for these are abstract
ideas of the mind and not undefined rela-
tives : and although, of consequence, an un-
certainty exist with respect to them also, yet
such uncertainty cannot occasion a conten-
tion, since the possessor of ten shares of the
house may either enjoy them indefinitely, or
may receive his share according to the mode
prescribed in the division of joint property,
The purchase of a package of cloth is null,
if it contain more or less than the quantity of
pieces agreed for. — IF a person purchase of
package containing cloth, on condition of
there being ten pieces in it, and it afterwards
appear that there are nine or eleven pieces in
BOOK XV I.— CHAP. I]
SALE
245
it, the sab is invalid, because of the uncer-
tainty, with regard to the price, in the one
case, and to the merchandise in the other ;
for in case of there being nine pieces, as the
price of the piece wanting is unknown, that
of the remaining nine is of consequence also
unknown ; and where, on the other hand,
there is one too m my, it is unknown which
are the specific ten that ought to be delivered.
Unless the seller previous y specify the
price of each particular piece. — IF, however,
the sel'er should explain the price of each
piece of cloth, and there be too few, the sale
is valid ; but the purchaser has the option of
undoing it if h? pie se ; whereas, if there be
too many, it is invalid, because of the uncer-
tainty with rcsnect to the goods, as it would
be impossible to ascertain the particular ten
that are included in the sale, — So re have
said that in case of deficiency also the sale is
invalid, according to Hancefa But this is
unfounded.
A sale is null in lofo, if the description of
the goods »e at all fallacious ~ IF a person
sell two pieces of cloih, on the condition of
their being Heratee, and one of them after-
wards prove to be Murwal'e?.* in that case
the sale is comp'etely invalid, that is, does
not ho' d good ev.-n with respect to the true
one, although the seller should have specified
the prices of both ; lor when the seller joined
together both pieces in the declaration of a
sale of Heratee pieces, he, as it were, estab-
lished a condition that the purchaser should
a-cept a piece of Murwallee which being a
false condition, the sale is therefore annulled.
Case of tie purchase of a piece of a cloth at
so much per yard. — IF a person purchase a
piece of cloth, on the condition of its inea
sin ing ten yards, and at the rate of one dirm
f r each yard, and the measurement after-
wards prove to be ten yaids and a half, or
nine yards and a half, in this case the pur-
chaser (according to tianeefa) must pay ten
dirms in the first instance, and nine m the
second ; still having the option to undoing
the contract if he please, Aboo Yoosaf alleges
that if the purchaser choose to abide by the
contract, he must pay eleven dirms in the
first instance, and ten in the second. The
opinion of Mohammed is, that in case the
purchaser chooses to abide by the contract,
he must pay ten and a half dirms in the first
instance, and nine and a half in the second ;
because the measurement of a yard having
been fixed at one dirm, it necessarily follows
that half a yard must be rated at half a
dirm. The reasoning of Aboo Yoosaf is that
as the price of each yard was fixed at one
dirm, it follows that each yard becomes
virtually a distinct piece of cloth ; and as
one of these proves defective, it follows that
the purchaser has the option either of un-
doing the bargain, or of taking the goods
according to the terms of the contract. The
•Of the manufacture of the provinces of
Herat and Murwa.
arguments adduced by Haneefd in support
of his opinion are, that the specification of
yards is considered as referring to the de-
scription, and not the real quantity of the
thing, excepting only where the price of each
given measurement is specifically stipulated
as a condition of the contract. Now, as in
the case in queation, the rate is opposed to
each completed yard, but not to any smaller
quantity, it follows that* such smaller quan-
tity must be considered as remaining in its
original form,-— that is, as applying merely
to description, ana therefore cannot involve
an additional payment Some have observed
that in coarse cotton cloths, of which the
extreme and mreiior parts are of a si nilar
texture, it is not lawful for the purchaser to
take any excess beyond the terms ot the
contract ; as it may be cut off and restored to
the seller without any injury to the piece, in
the manner of things estimable by weight ;
and hence the learned deem it lawful to sell
even a smyle yard of it
In the sale of a hms* the foundation
and mperstructire are bolh included — IF
a pers m sell the pla*e of his abo le (in other
words, his house), the foundation and super-
structure arc bolh included in such sale,
although they may not have been specified
by the seller ; because they are compre-
hended in the common acceptation of the
term ; anJ also, because, being joined to the
ground in the nature of fixtures, they are
considered as dependant parts of it.
In the sale of land, ihe irees upon it are
included.— IN a sale of land, the trees upon it
are included, although they be not specified,
because they are joined to it, in the same
marncr as foundation and superstructure in
the preceding case.
But not the corn. — IN a sale of grounc3,
the erain then growing on it is not included,
unless particularly specified by the seller ;
because it is joined to the giound, not as a
fixture-, but for the purpose of being cut
away from it, in the same manner as goods
of any kind which may have been placed
upon it.
Nor, in the sale of n tree, is the fruit then
upon it induded. — So also, if a person should
sell a tree on wnich fruit is growing, the fruit
belongs to the seller, unless it had bee a
specifically included in the sale ; because
the Prophet has said, "If a person sell a
DATE tree with fruit upon it, the fruit
b.- longs to the seller, unless the purchaser
should have stipulated* its delivery to him as
a condition of sale." Besides, although the
fruit be, in fact, a part of the tree, yet as it
is intended to be plucked and gathered, and
not to be suffered to hang on the tree, it is
therefore the same as gram.
But the purchaser must immediately clear
these away. — It is to be observed, however*,
that in the sale of a tree with fruit, or or
ground with grain upon it, the seller must
be immediately desired to clear them away,
and deliver the property to the purchaser ;
because, in these cases, the property of the
246
SALE
VOL. II.
purchaser and seller being implicated to-
gether, it becomes incumbent on the seller
to clear away what belongs to him ; in the
same manner as if he had placed any of his
goods upon the ground in which case the
clearance of them would have been requisite.
Shafei maintains that in both these cases the
grain and the fruit must be suffered to re-
main until they become ripe, because there
ought to be a period stipulated for the de-
livery of the things sold, and that period
ought to be extended to the complete growth
and maturity of these vegetables ; in the
same manner as in the case of a lease of
ground, where if, at the expiration of the
lease, the grain on the ground be green, it
is suffered to remain until it ripen. Our
doctors, on the other hand, argue that the
obligation is the same on a lessee ; and if he
be permitted to extend the lease on account
of the unripeness of the grain, he must, h-w-
ever, pay additional rent for it, which is a
substitute for the delivery ; and the sub-
stitute is in effect the same as the thing
itself. It is to be observed that in the sale of
a tree, the fruit is not included, whether it
be of an appreciable nature or otherwise,
unless it be specifically mentioned.
In the sale of ground, the seed sown in it
is not included — IF a person sell a piece of
ground in which seed has been sown, but of
which the growth has not appeared above
ground, in this case the seed is not included
in the sale. If the apparent growth should
have taken place though not in such a de-
gree as to render the vegetable of any value.
in this case there is a difference of opinion
Some allege that the vegetation is not in-
cluded in the sale : and others, that it is.
This difference of opinion has its foundation
in the different sentiments which the parties
entertain with repard to the validity of the
sale of vegetation, prior to its being fit to b>
cut down by the hook, or used by animals in
the way of forage : for those who consider the
separate sale of such vegetation to be valid.
are of opinion that is not included ; whilst
those who consider the sale of it as invalid,
are of opinion that it is included in the sale
of the ground.
The time-product is not included, in the
zaleoflandor trees, although the rights and
appendages be expressed in the contract. —
GRAIN and fruit are not included in a sale of I
ground, or of a tree, although the purchaser
and seller specify the rights and appendages
(in other words, although the seller declare,
• 'I have sold this ground, in this tree, with
all its rights and appendages"), because
grain and fruit do not fall under th<»se de-
scriptions. (The rights of a thing are those
without which it cannot be enjoyed, and
which form the principal object of possession,
such as a watercourse or a road : the appen-
dages are things from which we derive use;
but which »re more particularly considered
as dependant parts; such as a cook-room, or a
house for keeping water.) In the same man-
ner, if the setter should say, "I have sold
this tree, or this piece of ground, with every
thing small and great of its rights and ap-
pendages which I possess in it " still neither
the fruit nor the grain is included in it.
Nor unless all its dependencies be generally
expressed. — IF however, he should say, in a
general manner, "I have sold this tree (or
this piece of ground), with every thing great
and small which I possess in it," in this case
the grain and the fruit are necessarily in-
cluded in it.
Nor can any product be included after
being gathered or cut down — IT is to ob-
served that grain which has been cut, or fruit
which has been plucked, cannot by any con-
struction whatever be included in the sale,
unless expressly mentioned as such
Fruit may be sol\ upon the tree in every
state of growth. — THE sale of fruit upon a
tree is valid, whether the strength of the
fruit be ascertained or not ; that is, whether
it may or may not have reached such a
degree of strength as may preseive it from
common accidents ; because fruit is a pro-
perty of certain value, eith r immediately,
in case of its being ripe, or hereafter, in case
of its being in an unripe state (some have
said that the sale of fruit in a weak state is
invalid : the first doctrine is however, the
most authentic) : and th" sale of fruit in an
absolute manner being valid, the purchaser
must immediately take it from the tree,
wheather this be particularly expressed as a
condition in the sale or otherwise.
But if the contract involve any condition
not properly appertaining to safe, it is null. —
IF, however, the condition of suffering the
fruit to remain on the tree be stipulated, the
sale is null, because such a condition is ille-
gal, since it implicates together the right of
property of the two parties, which is repug-
r^ant to the nature of sale : and every condi-
tion of this kind invalidates the sale. Re-
sic'es, in this case, it must necessarily fol'ow
that one deed is interwoven with another ; in
other words, that either a loan or a lease is
implicated with the sale, which is unlawful.
In the same manner, the sale of grain, with
a stipulation of leaving it on the seller's
ground, is unlawful, and for the same reason
The same rule also obtains (according to
Hancefa and A boo Yoosaf) where the fruit
or corn has attained its full growth, as this
implicates the rieht of property of two par-
ties. Mohammad is of opinion that, in this
instance, such a condition is lawful, because
of the existence of the whole of the thing in
question ; whereas, in the former case, the
part of the property which afterwards vege-
tated was not in being at the time of the
conclusion of the deed; and the stipulation
of a condition with regard to a nonentity
being illegal, the sale is therefore null.
The additional growth of fruit purchased
on the tree, if suffered to continue upon it, by
consent of the seller, is the property of the
purchaser. — IF a person purchase fruit upon
the tree before it had reache ^ its full growth,
in an absolute manner (that is without
BODK XVI -CHAP I.]
SALE
247
stipulating the condition of its remaining
upon the tree until it become ripe), and
afterwards, with the permission of the seller,
suffer it to hang on the tree, in this case the
additional growth becomes his lawful pro-
perty. If, however, he act in this manner
without the consent of the seller ; he muot
then bestow the difference in charity, as be-
ing the produce of the property of another
without the consent of that other. If, on
the other hand, the sale should have taken
place when the fruit had attained its full
grovth, and the purchaser suffer it to remain
until it become ripe, he is not on that account
required to bestow any thing in charity, be-
cause in this instance a change from one
state to another takes place without any in-
crease being made to the substance.
And so aho if the purchaser tdke a lease
of the tree — IF a person, having in an abso-
lute manner purchased fruit which had not
attained its full growth, should afterwards
suffer it to remain on the tree till it become
ripe, by taking a lease of the tree till that
period, in this case th^ increase of substance
is lawful to him, because the base is null, on
account of a want of precise knowledge with
respect to the period of it, --and also, on
account of its not having been warranted by
absolute necessity, since it was in the power
of the leases to have purchased the tree itself :
— and the lease being null, there remains on'y
the consent of the seller, to which regard
must be ha-i.
But this rule does not hold with respect to
grain purchased upon the ground.— IT is
otherwise where a person purchases grain
upon the ground, and having then taken a
lease of the ground until the grain be capa-
ble of being cut down, suffers it to remain
until that time : for the increase of substance
is not in such case lawful to him, since the
lease so made is invalid, and an invalid lease
is the occasion of baseness and abomination *
Any new fruit which may grow in the
interim is the property of the seller and
purchaser. — IF a person, in an unconditional
manner, purchase fruit upon a tree which
had not completely vegetated, and after-
wards, before he had received a formal seisin
of it, new fruit should grow, in this case the
sale is invalid, because of the impracticability
of delivery on the part of the seller, from the
impossibility of distinguishing between what
was the subject of the sale and what was not
But if new fruit should appear after the seisin
of the purchaser, such fruit is in an equal
degree the right of both, because of its in-
termixture with the property of both. The
assertion of the purchaser, however, with
regard to the quantity, is credited, because
the fruit is in his possession. (The sale of
artichokes or melons which are growing is
subject to the same law as that of fruit grow-
ing upon trees).
Rule in the purchase of vegetable sold on
a tree. — IP a person wish to purchase fruit,
artichokes, or melons, and afterwards to have
it in his power to let them remain until they
become ripe, or until they shall yield a new
crop, so as to have a lawful claim to the pro-
perty, the expedient to be practised, in order
to render such conduct legal, is to purchase
the tree or bed itself, and after clearing it of
the fruit when ripe, to undo the contract of
sale with regard to the tree or bed.*
IF a person should sell fruit, with a reser-
vation of a specific number of Ratls of it.
the sale is invalid, whether the fruit be upon
the tree or off it ; because although the
reservation be itself specific and known, yet
the residue is unknown. It is otherwise
where a reservation is made of a specific
tree ; because there the remainder is known,
being obvious to the eye. — Our author re-
marks that this doctrine is conformable to
a tradition of Hasan, adopted by Tahavee :
but that such a sale is valid, according to
the Zahir Rawayet, and also in the » pinion
of Shafei, because it is a rule that whatever
may be lawfully sold, separately, may also
b** lawfully excepted from a deed of sale.
Thus the sale of one Kafee/ from a heap of
fljram being lawful, the exception of it is
also a lawful act —It is otherwise with
respect to a fcetus in the womb, or any par-
ticular member of an animal : because as
the separate sale of such subjects is illegal,
so also is the reservation of them.
Grain mav be sold in the ear, or pulse in
the husk — THE sale of wheat in the ear, or
of beans in the husk, is valid: and the law
is the same with respect to rice or rape seed
in the husk Shafei is of opinion that the
sale of green beans in the husk, or of
walnuts, almonds, or Pistachio nuts in the
shell, is not valid ; but with respect to
wheat in the ear, he has given two opposite
opinions. All these sales are, however,
valid in the opinion of all our doctors.
The reasoning of Shafei is that the subject
of the sale, in these cases, is hidden within
a thing of no value in itself namely, the
husk, and that therefore the case becomes
the same as if a goldsmith should sell a
heap of earth mixed with particles of gold,
in exchange for another heap of a similar
nature, which is invalid. The arguments of
our doctors upon this point are twofold,
FIRST, the Prophet has said, " The sale of
fruit upon the tree, or of grain in the ear,
i{? invalid, unless it approach to a state of
ripeness, f SECONDLY, wheat is an article
capable of yielding advantage ; and hence
the sale of it in the ear is valid in the same
manner as that of barley, the one being an
appreciable article a* well as the other. It
is otherwise with gold dust, for the sale of
* The consent of the seller is here presup-
posed : for neither of the parties can undo a
sale without the consent of the other. This
expedient is therefore suggested on a suppd-
sition of the future undoing of the sale being
equally agreeable to both parties.
t vVhence it may be inferred that the sale,
in the ear, or upon the tree, is admissible.
248
SALE
[VOL. II
that, mixed with earth, is lawful from
the possibility of its being usurious.
The sale of a house includes the fixtures
and their appendages. — IP a person sell a
house, of which the locks are not of the
hanging but of the fixed kind, in this case,
the keys of such locks are considered as in-
cluded in the sale ; because the locks them-
•elves are included in the house, in conse-
quence of their being fixtures ; and the sale
of a lock includes the key, without its being
expressly stipulated, because it is considered
as a constituent part of it. since a lock
without a key is of no use.
The seller must defray the expense of
weighers, tellers, measurers, and money-
essayers — THE wages of the measurer* of
the goods, or of the essayer of the money,
must be paid by the seller : — the wages of
the measurer, because, as measurement is
essential to enable the seller to deliver over
the goods the payment of the expense at-
tending that falls properly upon him (and
so also, the wages of weighers or tellers) : —
and the wages of the essayer, because of a
tradition, delivered by Ibn Roostim, that
such is the doctrine of Mohammed ; and also
for this reason, that the essay of the money
takes place after the delivery, when it be-
comes the business of the seller to have it
essayed, in order that he may distinguish
what is his right and what is not; and that
he may ascertain the bad coin in order to
reject them. Ibn Soomai relates it as the
opinion of Mohammed that the purchaser
should defray the wages of the essayer, be-
cause he stands in need of ascertaining the
good dirms which he has stipulated to
deliver, and the good dirms are known by
means of an essayer, in the same manner as
quantity by means of a measurer.
But the charge of weighing the price must
be defrayed by the purchaser. — THE charge
of weighing the price is due by the pur-
chaser, because he is under the necessity of
delivering it to the seller, and the delivery
is completed after ascertainment of the
weight. In a sale stipulating immediate
payment, the purchaser must first deliver the
price to the seller, because his right (namely,
the goods sold) is of a fixed and determinate
nature, whereas the price is not so ; and it is
therefore incumbent on him, in order that
both parties may be on a part to deliver the
price to the seller, which fixes and^ deter-
mines it : for it cannot be determined but by
delive/y.f
* Meaning properly, some person who is
employed as a sworn or professed measurer.
t Thus if the price stipulated be ten dirms,
and the purchaser be in possession of a thou-
sand dirms (for example) in this case, although
the number ten be determinate, yet the units
to compose that number and to be taken from
a great number, are not specific and deter-
minate, until actually delivered. This doc-
trine is frequently and particularly enlarged
upon in the sequel of this book.
In barter or exchange, the mutual delivery
must be made by both parties at the same
time. — IN a sale of goods for goods, or of
money for money, it is necessary that both
parties make the delivery at the same time ;
because being on a par in point of certainty
and uncertainty, there is no necessity for a
prior delivery.
CHAPTER II.
OF OPTIONAL CONDITIONS.
Definition of the term — AN optional con-
dition is where one of the parties stipulates
it as a condition that he may have the option,
for a period of two or three days, of annulling
the contract if he please.
A condition of option mfiv be lawfully
stipualted by eithe party, — THE stipulation
of a condition of option, on the part either of
the se'ler or purchaser is lawful : and it may
be stipulated to continue for three Hays or
less ; but it must not be extended beyond
that term; because it is related that Hooban.
having been defrauded in several of his
bargains, the Prophet addressed him thus,
" HOOBAN, when you make a purchase bar
deceit, and stipulate a condition of option "
Provided it exceed not the term nf three
days. — AN optional condition, stipulated to
remain in force for a period exceeding three
days is unlawful according to Haneefa : and
Ziffer and Shafei are of the same opinion.
The two disciples, on the contrary, maintain
that it may be stipulated to continue to any
length of time whatever : because it is re-
lated that Ibn Omar extended it to two
* Arab. Khiar-al-Shirt. In contracts of
sale there are five different options: These
are, 1st. Option of acceptance. 2. Optional
conditions. 3. Option of determination. 4.
Option of inspection, and 5. Option from
defect. An option of iicceptance is a liberty
which either of the parties: in a contract of
sale, has of withholding his acceptance, after
the trnder of the other, until the breaking
up of the meeting. An optional condition is
where one of the parties stipulates a period
of three days before he gives his final assent
to the contract. An option of determination
is where a person, having purchased one out
of two or three homogeneous things, stipulates
a period to enable him to fix his choice.
Option of inspection, is the power which the
purchaser of an unseen thing has of rejecting
it after sight. Option from defect is the
power which a purchaser has of dissolving
the contract on the discovery of a defect on
the merchandise. The translator has thought
it proper, in this note, to bring into one point
of view an explanation of the several kinds
of option, as it may possibly tend to give a
clearer idea of them than what could be col-
lected from the scattered definitions of them
as they occur in the course of the work*
BOOK XVI -CHAP. II,]
S\LE.
249
months ; and also because it is ordained, by
the LAW, for the purpose of answering the
necessities of man, in enabling him to con-
sider and set aside what is bad ; and as a
period of three days may not be sufficient
for this purpose, the indulgence is therefore
extended with respect to the merchandise, in
the same manner as with respect to the price.
The argument of Haneefa is that an optional
condition is repugnant to the nature of the
act, which fixes an immediate obligation on
the parties, and is allowed only because of
the Baying of the Prophet already quoted ;
whence it cannot be extended to a period
beyond what has been there specified
if it exceed three days, and the- stipulating
paity declare his acceptance before the ex-
piration of the third day, tli* sale ii lawful
— ALTHOUGH a conditional option beyond
three days be not permitted, still if such
a condition be stipulate J, and the person
making such stipulation, before the lapse of
the three days, declare his acceptance of the
contract, the sale is in that case valid, ac-
cording to Haneefa. Ziffer, however, is of
different opinion ; for he argues that th sale
being invalid from the beginning, on account
of the ilUgality of the condition, it cannot
be afterwards rendered valid by the re-
mt'Val of sixh condition. The arguments of
Haneefa on this point are twofold. FIRST
as ihe acceptance < f the sale was declared
before the lapse of the three days, the cause
of its invalidity lias not begun to operate
SECONDLY, the invalidity takes place on
the fourth day ; and as the acceptance is
declared before that period, the sale is con-
sequently kept free from any cause of in-
validity From this second argument some
have considered thar the invalidity of the
sale does not take place until the commence-
ment of the fourth day ; — whilst others
(founding their opinion on the first argu-
ment), hold that the contract was invalid
from the beginning: but is afterwards ren-
dered valid by the removal of the cause of
its invalidity previous to its operation.
The payment »f the price may be substi-
tuted as the condition. —l-T is lawful for a
person to make a purchase on this condition,
that "if in the course of three days he do
not pay th« price, the bale shall be null and
void " If. however, instead of three days
he stipulate four, the sale is not valid,
according to Haneefa and Aboo Yoosaf.
Mohammed is of opinion that it is valid,
whether he stipulate four days or more. All
our doctors, however, agree, that in case of
such a stipulation having been made, if the
purchaser in the mean time pay the price,
previous to the lapse of the third day, the
sale is valid. The reason of this is that a
condition of this nature is of the same
nature with an optional condition, because
in case the purchaser cannot furnish the
price, the seller stands in need of a power to
annul the act. As, moreover, Haneefa holds
that a sale is invalid, where the condition of
ls beyond three days, but may
afterwards be rendered valid by a formal
confirmation previous to the lapse of the
third day, so also in the case in question.
As Mohammed, on the contrary, holds that
the extension of the condition of option
beyond the third day is lawful, so also in the
present instance. Aboo Yoosaf, on the other
nan •, although (contrary to analogy) he
hold t e extending of a condition of option
beyond three days to be lawful, because of a
tradition which he quotes to this effect, yet
is of opi< ion tint thi same extention is un-
lawful in the present instance (arguing from
analogy), as there is no tradition in support
of it. There is another explanation, from
analogy, with respect to this case, which has
b>en adopted by Ziffer, to the following
elfect, that, in the s.ile in question, an in-
valid dissolutiv>n has been stipulated (for the
dissolution is invalid, as it depends upon a
condition) ; and as a sale is rendered void
by the stipulation of a valid dissolution, it
follows that by the stipulation of an invalid
dissolution it is rendered void a fortiori.
The reason, however, for a more liberal con-
struction in this pirticular is, that the con-
dition here stipulated is considered as an
equivalent to a condition of option, as has
already been explained.
The seler, by stipulating a condition of
option, does not relinqu sk his property in
the article sold — IF the seller stipulate a
condition of option, the right of property
over the g3ods does not in that case shift
from him, bee mse the completion of the sale
depends on the mutual consent of the par-
ties, arid the condition of option evinces that
the seller has not completely consented. If,
therefore, under these circumstance, the
seller should emancipate a slave whom he
had in that manner sold, the emancipation
would hold good — Ne.mer is the purchaser
in such a case entitled to use or employ the
goods, although he should have taken pos-
session of them with consent of the seller. —
If, after the purchaser had possessed himself
of the goods, they should perish or be de-
stroyed previous to the expiration of the
period of optional cond tion, he becomes in
that case responsible for the value ; because
by the destruction of the goods the sale is
annulled (for the execution of it rested only
on the consent of tue seller ; and where the
subject of it is lo t, tiie execution of it
becom>s imor ictuaJle ; and it is nuil of
course) ; and as the goods were in possess! m
of the purchaser with a view to purchase
(which circumstance ' renders a purchaser
responsible for the value), he is responsible
accordingly, If, on the other hand, ths
goods be lost in the possession of the seller,
the deed is annulled ; and no payment is
incumbent on the purchaser, in the same
manner as in the case of an absolute sale,
that is, a sale where no condition is stipu-,
lated.
But the property in it devolves upon the
purchaser where the stipulation is ma,« on
his part \ and he is consequently "'WO'^tile
250
SALE
(.VOL. 11.
for the loss of the goods.— IP the condition
of option be stipulated by the purchaser, the
right of property over the goods shifts from
the seller, because the sale is rendered com-
plete on his part The right of property,
however, although tt shift from the seller,
does not vest in the purchaser, according to
Haneefa. The two disciples have said that
the purcha' er becomes the proprietor ; for,
if this were not the case, it must necessarily
follow that, after it moved from the seller, it
would remain subject to no person ; and this
is a state not supposed by the LAW, The
arguments of Haneefa, on this point are tvo-
told. FIRST as th<* right c,t property with
respect to UN? price has not slufte.i from the
purchaser, it follows that if the right of
property with respect to the goods also vest
in bun, the property with respeU both to
the thing purchased and the return tor it is
concerned in one person, which is abso-
lutely illegal. SECONDLY, it the right of
property with respect to the goods were to
vest in the purchaser, it might frequently
happen that the ?oo,<s would, in the interval,
before the completion of the sale, be made
away without any intention on the part of
the purchaser (as if the purchaser had Dought
a slave related to himself within the pro
hibited degrees)* ; and as the sole object of
the reserve of option is the benefit of the
purchaser, in allow! g him time for con-
sideration, it follows thut if the right of
properly were to vest immediately in him
he might be deprived of the advantage
which is the object of the reserve of option.
// the purcha er have the option, and the
goods be injured or destroyed in the tnteiun,
he is responsible for thtf price.— IF the mer
chandise, where the & ipalation or option is
on the part of the purchaser, p *rish or be
destroyed, the purchaser is in that ca^e an-
swerable for the price, in the same mannei
also, if the goods receive an injury, the pur-^
chaser is responsible for the price ; because*
the goods, after sustaining an injury, cannot
be returned, an i the sale consequently be-
comes binding. The purchaser, ih.relore, is
responsible for the price in either instance ,
for destruction necessarily implies previous
injury : and hence in a ca e where the
purchaser is utterly destroy en, the sale first
becomes binding and complete, and the de-
struction takes place afterwards
But if it rest with the seller the purchaser
is responsible 4or the value only — AND as,
in a case of injv r . , the payment of the price
becomes obligatory, so also in a case of
destruction It is o&erwise where the mer-
chandise perishes in the possession of the
purchaser when the option had been stipu-
lated by the seller ; for in this case the
purchaser is answerable only for the value ;t
*In which case the slave would become
immediately free. . . .
t And not for the price set upon it m the
because the circumstance of the injury does
not render the restitution impracticable,
since the seller, in that case, had the option
either of taking the merchandise thus injured,
or of rejecting it, if he place ; as the optional
condition remains with him : an" hence, as
the sale does not become binding on the
occurrence of the injury, if the seller choose
to confirm it, the purchaser in that case only
pays the value of the injured merchandise.
Right ofoptiun, in the purchase of a wife,
is not affected oy cohabitation with her in
the interim of option. — IP a person purchase
his own wife, with a reserve of option for
three days, in this case the marriage subsists
during that interval, as the right of propertv
does not take place because of thr optional
condition : and if he have carnal connexion
with her during that interval, the condition
of option is not thereby annulled ; because
he has it is still in his power, after such con-
nexion, to undo thv sale, since his cohabita-
tion with her is the exercise of a right in
virtue of his marriage, and not of his right
of property. If, however, his wife be a
virgin, his cohabitation with her annuls tha
condition of option, and establ shes the sale,
as it is a damage 10 her, and a diminution of
her value. This is the doctrine of Haneefa.
The two discioles are of opinion that the
husband becomes immediate property of
his wife by the optional purchase, .whence
the marriage is immediately annulled. If
therefore, he should have cohabitation with
her, he cannot afterwards reject her, although
she may have been a woman ;* because the
marriage being null, the cohabitation was not
in virtue of marriage, but of property This
difference of opinion between Haneefa and
the two disciples, respecting the property
vesting immediately i" a conditional pur-
chaser, has given rise to opposite decisions in
a variety of diffeunt cases. Of this number
are the following :-
Case of optional purchase of a slave re-
lated to the purchaser — IF a person make
an optional purchase of a slave related to
him within the prohibited degrees, the eman-
cipation, in the opinion of the tWvD disciples,
takes place immediately ; whereas according
to Haneef?, it does not take place until after
the confirmation of the contract.
And of a slave optionally purchased under
a vow of emancipation. — IF, also, a person
make a vow to emancipate a slave whenever
he becomes proprietor of one, then, accord-
ing to the two disciples, if he make a con-
ditional purchase of one. the emancipation
takes pL ce immediately : whereas, according
to Haneefa, it does not take place till after
the confirmation,
Or of a menstruous female slave —-IF,
also, a person make an optional purchase
of a female slave, and her monthly course*
happen during the term of option, these
courses are included in the prescribed term
*That is to say, not a virgin.
TOOK XVI —CHAP, II ]
SALE
251
of abstinence,* according to the two disci-
ples ; whereas, according to Han efa, they
are not included. And if the purchaser,
availing himself of his optional condition,
should return her to the seller, the seller
need not observe the prescribed term of
abstinence, according to Haneefa : whereas,
the two disciples hold that such observance
is incumbent on him.
Or of a pregnant wife — IF, on the o her
hand, a person make an ^.pt onal purchase of
his own wife, j nl if she, -luring the interval
of option, bring forth a child, 8 ie is not an
Am-Walid to the purchaser, according to
Haneefa ; whereas, according to the two
disciples, she is so. If also, a person make
an optional purchase, of merchandise, and
having with the consent of the seller, received
possession of it, afterwards give it in deposit
to the seller, and it be lost in the interval,
in this case, according to Haneefa, the trust
is null and void, as the depj&it was not the
property of the purchaser, and therefore he
is of opin*o.i that the loss results to the
heller; whereas the two disciples, holding
hlu' said deposit 10 be valid, are of opinion
that the loss ies» Ls to the purchaser agree-
ably to the law of deposits.
Optional purchase made by a privileged
slave.— IF, on the other hand, a privileged
slave make an optional purehas-, and the
seller, during the interval of option, exempt
him from the payment, in this case, accord-
ing to Hanpefa, the condition of option
remains in force : because if he should return
the merchandise, it follows that he does not
ct.oose to accept of the property, and a pri-
vileged slave has the power of accepting or
rejecting as he please : but, according to
the two disciples, the condition of option is
annulled by the exemption of payment ;
because (in their opinion) the property
having vested from the beginning, it follows*
that if he were to return the merchandise to
the seller, it would be in effect a gift to him,
and a privileged bUve has not fhe power of
making a gift.
Case of optional purchase of wine by a
Zimmee, who in the interim' embraces the
faith.— IF, moreover, a Zimmee purchase
spirituous liquors from a Zimmee, on a con-
dition of option, and the ; urchaser in the
interval, become a Mussulman, in this case,
according to the two disciples, the condition
of option remains no longer in force, because
the purchaser having (agreeably to their
tenets) become proprietor of the liquor, it
follows that if he were permitted to reject
it, he would create in another a right of
property with respect to liquors, which no
*The purchaser of a female slave is re-
quired to abstain from carnal connexion
with her until she shall have had three
different courses from the period of her be-
coming his property, that it may be ascer-
tained whether she be pregnant or not.
(See Edit.)
viussulman is allowed to use. According t°
iancefa, on the contrary, the sale becomes
void, because the purchaser (agreeably, to
lis tenets) , not being then the proprietor
and the circumstance of becoming a Mussul-
nan putting it out of his power to become
he proprietor by removing the condition, the
sale is of necessity annulled.
The possessor of option may annul the sale
with the knowledge of the other party, or
confirm ii withiUi his know.t .ge.~~ In case of
a sale on a condition of option, it is lawful,
according to Haneefd and Mohammed, for
the party posst ssing the option to annul the
contract within the stipulated period, or to
confirm it : which latter he may do without,
the knowledge of the other party: but it is
not lawful for him to annul it without the
knowledge of the other Aboo Yousaf
alleges that the parties possessing the
option may annul the contract whhout the
knowledge of the other : and such, also, is
the opinion of Shafei. The argument of
Aboo Yoosaf is that the party possessing the
option is empowered, on the part of the
other, to annul the contract : and that there-
fore, such annul m nt cannot rest upon that
other's knowledge of it : in the same manner
as his knowledge of it is unnecessary in
case the possessor of the option confirm the
coi. tract ; as in the case of an agent for sale
(for instance), who may lawfully act in
every matter to which his agency extends,
without the knowledge of his constituent,
in virtue of the powers given to him on his
behalf. Th^ arguments of Haneefa and
Mohammed are, that a contract of sale
involves the rights of both parties, and
that the annulment of the sale by one party
only is an exercise of a right partly belong-
ing to the other, whilst at the same time
•uch exercise may eventually be attended
with a loss to the other : for supposing the
pos>essor of the option to be the seller, and
that he annul the sale without the know-
ledge of the purchaser, and the purchaser,
in the mean time, in the confidence of the
sale being complete, take possession of the
merchandise, then, in case of its destruc-
tion, he must of consequence be responsible
for it : or, supposing the purchaser to be the
possessor of the option, and that he annul
the sale without the knowledge of the seller,
then an eventual loss may result to the
seller, as it is possible that, on the presump-
tion of his gr ods being already sold, he may
enquire out a. othea purchaser. Hence as
such an exercise, on the part of either, of
the right of the other, may be attended with
an eventual injury, the annulment of ar
optional sale is therefore made to rest upon
the knowledge of the father party. This
case, in short, resembles the dismission of
an agent: for if a person, having appointed
an agent, shoji I afterwards dismiss him
withoat his knowledge, it would not b.
valid until the agent was himself informed
of it ; and so also in th: case in question,
it i* otherwise with the confirmation
25 >
SALE
[VOL. II.
sale ; as the exercise of such a right by one
party only does not entail an injury, The
assertion of Aboo Ybosaf that " the pos-
sessor of the option is empowered to make
such annulment on the part of the other,"
is not admitted ; for how can the other, who
does not himself possess such power, bestow
it upon the possessor of the op' ion ?
And even if he annul it without the other's
knowledge, and the other be informed before
the expiration of the term, it is valid — IF the
person possessing the option annul the sale
without informing the other party, and such
knowledge, nevertheless, reach him before
the expiration of the stipulated period, then,
because of his acquirement of such know-
ledge, the annulment is rendered complete.
If, on the other hand, it should not have
reached him until the expiration of the
stipulated period, then the annulment is
rendered complete, because of the expiration
of the stipulated period
A right of option, in sale, cannot descend
to an heir. — IF a person possessing the right
of option in a sale should die, the sale is then
complete, and the right of option becomes
void, and does not d scend to his heirs, —
Shafei maintains that the option descends to
the heirs, because, being a fixed and estab-
lished right in sale, it may be inherited, in
the same manner as an option in case of
defect, or an option of determination. The
arguments of our doc ors are that an option
is in reality nothing but desire, or disposition,
which is not capable of being transferred from
one to another ; and nothing but what is
capable of devolving from one person to
another can be inherited. —It is otherwise
with respect to option in case of defect, as
that is granted to the heir, because of his
right to ' obtain possession of a thing whole
and complete, in the same manner as the
deceased, and not because of his right of
inheritance, since option is incapable of
being a subject of inheritance. It is other-
wise, also, with respect to an option of deter-
mination, as the heir become.0 the proprietor
in that instance, because of the mixture of
property, and not because of his right of
inheritance
A right of option may be referred to a third
person.— If a person, in purchasing any ar-
ticle, stipulate the option of another person,
in this case, provided either the purchaser
or the jxjssessor of the option confirm the
sale, it is valid ; or, if either of them annul
it, it \ ecomes void. The reason of this is,
that the stipulation of the option of another
is admitted, upon a favourable construction.
Analogy would suggest that it is inadmis-
sible, and such is the opinion of Ziffer,
because option being one of the articles of
the contract, it follows that the stipulation
of it for another, who is not one of the
contraction parties, is illegal, in the same
manner as if it were stipulated that some
other than the purchaser should pay the
price. — The arguments of our doctors are,
that the establishment of the right of option
in one who is not a party to the contract is
by way of appointment from him to act as
his substitute. In this case, therefore, the
option is vested both in the party and in his
substitute : and consequently it is lawful
for either of them to confirm or annul the
contract. — If one of them should confirm,
and the other annul the contract, in this
case the first of these acts which may have
been performed becomes valid. If both
should have been performed at the same
time, then (according to one tradition) the
act of the contracting party is valid ; — or
(according to another) the validity of the
annulment is preferred to that of the con-
firmation The principle on which the
first tradition proceeds is that the act of the
contracting party «s of superior force to that
of a substitute who derives his authority
from him ; and the principle on which the
second tradition is founded is that annulment
is of superior force to confirmation, because
annulment may take olace after confirmation,
but confirmation cannot take place after
annulment. Some have asserted that the
first tradition is conformable to the doctrine
of Mohammed, and the second to that of
Aboo Yoosaf ;- arguing from their different
decisions in the case of an agent of sale and
his constituent : for if both of them should
at the same time sell the same thing to
different persons the sale of the constituent is
valid, according to Mohammed ; — whereas,
according to Aboo Yoosaf, both sales are
valid ; but the article sold must be divided
between the two purchasers.
Case of selling two slaves, with a condition
of option with respect to one of them — IF a
person sell two slaves for a thousand dirms,
stipulating an optional condition with respect
to one of them, the case admits of four
different statements —I. Where the seller
does not oppose a specific price to each of the
slaves, nor specify the one respecting whom
the optional condition is to operate : and this
is illegal, because of the uncertainty both as
to the subject of the sale and the price : for
as the slave, concerning whom the condition
of option ^ is stipulated, is not (as it were)
included in the &ale. and as he »s not speci-
fied, it follows that the other, who is the
subject to the sale, is also unknown —
II. Where the seller sets a particular price
upon each of the slaves, and also specifies to
which the condition of option relates ; and
this is valid, because of the certainty with
respect to the subject of the sale and the
price
OBJECTION .— It would appear that the sale
is in th;s case illegal ; because the slave who
is the subject of the condition is not, in
effect, included in the sale ; and, as both are
joined together in one declaration, it follows
that the acceptance of the sale with relation
to what is not the subject of it, becomes a
condition of the validity of the sale with
regard to what is : it being the same, in
short, as if a person should join a freeman
and a slave in one declaration of sale, which
BOOK XVI. CHAP.— II.
SALE
253
^illegal, because the acceptance of the sale
with regard to what is not capable of being
the subject of it (namely, the free man) is
here made a condition of the validity of the
sale with respect to the slave ; and this con-
dition is the cause of annulling the sale : it
therefore follows that the sale is in the same
manner invalid in the case in question, as
the same condition (which occasions an
annulment of the sale) is equally induced in
this instance
REPLY — The sale, in the case in question,
is lawful ; because, although the acceptance
of the sale, with respect to the slave con-
cerning whom the option is stioutated, be a
condition of the validity of the sale with
respect to the other slave also, still such
condition does noi annul the sale, since the
optional slave is a fit subject for sale : it is
therefore, in fact, the same as if a person
were to join a Modabbir and an absolute^
slave in one declaration ; and as the sale is
in that instance valid, so also in the case in
question : — contrary to where a seller joins
a slave and a freeman in one (declaration :
because a freeman is not a fit subject of sale
—III Where the seller opposes a particular
price to each slave, but does not specify
to which of them the condition of option
relates. — IV Where the seller specifies the
slave to whom the condition of option relates,
but does not oppose a specific price to each
of them —In both these cases the slave is
invalid, because of the uncertainty of the
subject of the *ale in the one instance, and
of the price in the other.
Option of determination. — IF a person
purchase one of two pieces of cloth for ten
dirms, on the condition of his being at liberty
for three days to determine on the particular
piece which he may approve, such sale is
valid ; and the condition so stipulated is
called an option of determination.*
It extends to a choice out of three, but.jnot
out of more. — A SALE is in the same manner
valid, where a person purchases, with a
reserve of option, one out of three pieces ;
but it is not lawful to purchase, in that
manner, one out of four pieces. — What is
here advanced proceeds upon a favourable
construction. — Analogy would suggest that
the sale is not lawful in either of these three
cases, because the subject of sale is un-
certain ; — and such, also, is the opinion of
Ziffer and Shafei — The reason for a more
favourable construction is, that optional
conditions have been ordained for the benefit
of man, in order that he may thereby be
enabled to set aside the bad, and to choose
the good for himself : — it is, moreover,
evident that man stands in need of contracts
of this nature, in order that he may be
enabled to show the merchandise to some
person in whose judgment he confides ; or if
an agent be employed that he may, show it
to his constituent ; and this the seller would
•Arab. Khiar-al-tayeen
not permit him to do unless such a condition
were stipulated. — This species of sale there-
fore, being in effect the same as an optional
one, it follows that it is in a similar manner
lawful. — This necessity on the part of man,
however, is fully answered by means of three
pieces, as this number comprehends the
three qualities of good, bad, and medium ;
and there can be no uncertainty with respect
to the subject of the sale, in this species of
contract, to occasion contention, as regard is
had solely to price on which the purchaser
determines,
OBJECTION. —Why then is it not lawful
with respect to four pieces, as in that case
also no contention would take place ?
REPLY — Although, in this case also, there
would be no uncertainty with regard to the
subject of the sale, to occasion contention,
still the efficient cause of the legality
(namely, the necessity of MAN) does not here
exist, and it is therefore unlawful.
An optim of determination may involve a
condition of option.— SOME have observed
that, in a case of option of determination, a
condition of option is also indispensable ;
and that is recorded in the fama Sagheer.
Others, again (following the Jama Kabeer),
say that the condition of option is not
requisite ; and hence it is inferred that what
has been recorded in the Jama Sagheer is
that such a condition often takes place ; not
that it is absolutely necessary
But the term for making the determination
must not at till events, exceed three days, —
IT is to be observed, however; that if, in a
sale stipulating an option of determination,
it should not be thought necessary to insert
a condition of option, the period for deter-
mining the choice must in that case, according
to Haneefa, be limited to three days : but
according to the two disciples it may be fixed
to whatever period they please.
Of the articles referred to the purchaser's
choice, one is the subject of the sale, and the
others are as deposits— IT is also to be
observed that in case of option of determina-
tion, the subject of the sale is one piece
of cloth (for example), and the other piece
is a deposit in the hands of the purchaser.*
If, therefore, one of the pieces be lost or
spoiled the sale takes place with respect to
it m exchange for the stipulated price ; and
the ether price is as a deposit ; because it is
imprfsible to reject the piece which is lost oi
spo'f.d. If, on the other hand, both pieces
be lost at the same time, the purchaser must
in that case pay the half of the price of each,
because the determination of purchase not
having been made with respect to either oi
the pieces, it follows that sale and trusl
operate indefinitely with respect to each.
And both may be returned in case of a con-
dition of option. — IF besides the option oi
determination, a conditional option be alsc
*And consequently (according to the
of deposit) he is responsible in case of a ~ci-
dents, for one piece only.
254
stipulated, the purchaser is in that case at
liberty to ret r.i both pieces
The heir of the person endowed with an
option of determination may return one of
the two articles referred to the purchaser's
option, in case of his death. — IF a person
possessing an option of determination should
die, his heir is empowered to return one of
the articles; for an option of determination
(as has been before explained) necessirily
descends to an heir, because of the impli-
cation of his property with that of another ;
whence he is not, in his option of determi-
nation, restricted to three days — If, on the
contrary, a person recently p Assessed of a
power of option die, his heir has no option,
as was before ex laine i.*
Option ts declared and the sale made bind-
ing by any act of the purchaser in relation to
the article sold — IF a person purchase a house
under a condition of option and the adjoining
house be afterwards sold before the expira-
tion of the period of option, and the purchaser
under the condition of option claim the right
of Shaffa, in this case his assent to the first
sale is thereby virtually given, and his right
of option exists no longer ; — because his
claim of Shaffa presupposes him to be con-
firmed in the adjoining property, otherwise
he would have no right to make such a claim ;
and it is therefore inferred, that he first
tacitly annuls his condition of option, and
then urges his claim. It is to be observed
that the necessity of this explanation arises
from the doctrine of Haneefa ; for by his
tenets, a purchaser under a condition of
option does not become proprietor of the
article of sale during the interim of option
The two disciples hold, on the contrary, that
he becomes immediate proprietor under the
condition of option L whence this explana-
tion is, with regard; to their doctrine un-
necessary.
An option of determination, vested jointly
in two persons, is determined by the subse-
quent consent of cither to the purchase. — IF
two persons purchase a slave, on this con-
dition, that both purchasers shall have the
option of rejecting him, and one of them
afterwards express his consent, the other
cannot reject him, according to Haneefa.
The two disciples allege that if the other
choose, he may reject his share in the slave.
The same disagreement subsists with respect
to two purchasers in a case of option of inspec-
tion or option from defect. The argument of
the two disciples is that as the power of
rejection was vested in both the purchasers,
it consequently operated in each of them ;
and the rejection of the cannot abrogate the
right of option with respect to the other, as
that would be a destruction of his right,
which is not lawful. The argument of
Haneefa is that the subject of the seller, when
it issued from the tenure of the seller, was
•Because a condition of option is not in-
heritable.
SALE [VOL. II.
not injured by the defect of participation ;
but it one of the purchasers have the liberty
of rejecting his portion singly, it necessarily
follows that upon the rejection the seller
holds the article in partnership with one of
the purchasers ; and this is a defect in the
tenure, to which he was not before subject.
OBJECTION. — It would appear that the
rejection of one of the purchasers is valid
although attended with an injury to the
seller, since the seller has himself virtually
assented to it, because in giving such power
to two oersons, it is evident that he assents to
a p Siihle rejection by one of them.
KHPLY —The consent of the seller to the
injury is inferred from a supposition of his
having consented that one mk'ht reject
where the power of rejection was given to
two. This, however, is not the case in tl.e
present instance ; for it is to be supposed that
the seller understood that both should declare
their rejection together ; and on this suppo-
sition his consent was given, not on the
other.
If an article purchased under one descrip-
tion prove to be of another description the
purchaser may either confirm 0* annul the
contract. — IF a person purchase a slave on
account of his being a jcribe, or a baker, and
he prove to be neither < f these, the pur-
chaser is in that case at liberty either to
abide by the bargain, or to undo it, as he
pleases ; because the descriptive quality
being the object he had in view, and King
specified as a condition in the contract, is
therefore his right, and the want of it gives
him the power of dissolution if he please,
because his assent signified was on this con-
dition, and not otherwise.
OBJECTION.— It would appear that the
sale is in this case invalid, in the same
manner as in the case of purchasing a male
slave who afterwards proves to be a female.
REP^LY.— The sale in the case quoted is
invalid because of difference of sex, which
does not exist ir the case in question.
Thus a person that is a baker or not a baker
is of the same sex and differs only in the
quality ; and hence the analogous application
of the one case to the other is unfounded. It
is to be observed, that a difference of the sex
does not invalidate the sale, unless it defeat
the purchaser's object. Thus the object in
the purchase of a man (for instance) is dif-
ferent from that in the purchase of a woman,
and therefore the sale is invalid in case of a
difference : if on the contrary, a man should
purchase a he-goat on the supposition of its
being a female, the sale would not be invalid,
but it would remain with the purchaser to
abide by it or not, as he pleases. It is to
be observed however, that, in the case in
question, if the purchaser choose to abide by
the bargain he must pay the whole of the
priee ; as no diminution is admitted on
account of the defect of quality, which (as
has been before explained) is of a dependant
nature.
c
BOOK XVI — CHAP. Ill,}
CHAPTER III
OF OPTION OP INSPECTION.*
A purchaser may reject on article upon
inspection after purchase. — IF a person pur-
chase an article without having seen it, "
sale of such article is valid, and the purch:,3
after seeing it has the option of accepting «,
rejecting it as he pleases, Shafei maintains
that a sale of this nature is wholly invalid,
because of the uncertainty with regard to the
object of it. The arguments of our doctors
art*.— FIRST, a savin? of the Prophet, that
whosoevei purchases a tiling without seeing
it, has the liberty of rejection after sight of
it SECONDLY, «he uncertainty with respect
to the object cannot occasion litigation, since,
if it be not agreeable, the purchaser is at
liberty to reject it.
Although, before seeing it, he should have
signified his satisfaction — IF a person, have
ing purchased an article unseen, should sav,
" I am satisfied with it," in this case also he
is at liberty, after, sight of it, to reject it
if he please, for two reasons FIRST, as the
option of inspection (according to the tradition
already quoted) rests entirely upon in pection,
it fol'ows that it becomes established by the
inspection, whereas before that it was not
established ; and as the acquiescence signified
previous to the inspection is not repugnant
to this, it consequently remains established |
OBJECTION:— If the right of option do not |
exin previous to the actual sight of the
article of sale, it would follow that the
purchaser, before inspection, has not the
power of annulling the contract ;— -/hereas
we find, cm the contrary, that he is actually
possessed of this power before inspection.
REPLY. —His right to dissolve the contract
previous to this inspection, proceeds from
the contract not being then binding ; and
not from any reference to the tradition above
quoted
SECONDLY, the purchaser's acquiescence
in the article before he attains an actual
knowledge of its qualities, is perfectly nuga-
tory ; and hen.re no regard is paid to his
acquiescence previously sig ified : —contrary
to his rejection, which is regarded, because
the contract has not as yet become binding.
A teller has no option of inspection after
sa «.— IF a person sell a thing which he him-
self has not seen, he has no option of inspec-
tion ;f because the tradition before cited
limits this option entirely to the purchaser :
moreover, it is related that Os nan sold a
Pjece of ground belonging to him at Basra
to Tilha-Bm-Abeedoola ; when a person said
to Tilha, "you have been injured in this
matter:'1 btit he replied, "I possess the
liberty of rejection, having purchased a
thing unseen .-—after which another said to
SALE
255
* Arab. Khiar-al-Rooyat.
fThat is, he has no power of retraction
if, upon inspection of the article sold, he
should happen to repent of the sale.
Osman, "You have been injured in this
sale," and he replied, "I have the liberty of
retractation, having sold a thing which I had
not seen :" upon which Mazim was appointed
ar&trator between them : and he decreed
ttoai the right of option rested only with
Tilha ; and this decree was given in the
presence of all the companions of the Prophet,
none of whom objected to it.
The option of inspection continues in fore e
to any distance of time after the contract,
unless destroyed by circumstances.— THE
right to option of inspection is not, like an
optional condition, confined, to a particular
period : on the contrary, it continues in
force until something take place repugnant
to the nature of it. —It is also to be observed
that whatever circ'my.tance occasions the
annulment of an optional conditions (such
as a defect in the merchandise, or an exercise
of right on the part of the purchaser, in
the same manner occasions an annulment of
the option of inspection.
Such as would havt annulled a condition
of option. — IF, therefore, the exercise of
right be such as cannot afterward* be re-
tracted (such as the emancipation of a slave,
or the creating him a Modabbir),— or, if it
be such as to involve the rights of others
(such as absolute sale, mortgage, or hire,)
—the option of inspec ion is immediately
annulled, whether the thing have been seen
or not ; because these arts render the sale
binding, and the existence of the option is
incompatible with the obligation ot the sale.
If, on the contrary, the exercne of right be
not such as to involve the right of others
(such as a sale with an optional condition, a
s mple tender to purchase, or a gift without
delivery), -the option of inspection is not
annulled previous to the actual sight of the
article sold, because acts of this description are
not of a stronger nature than the purchaser's
acquiescence ; and as the purchaser's express
acquiescence to inspecting is not the cause of
annulling the option of inspection (as has
been already demonstrated;, it follows that
the acts above described do not annul it, a for-
tiori ; —whereas those acts after inspection
annul the option of inspection, as they indi-
cate an acquiescence, and an acquiescence
after the sight of the thing occasions the
annulment of the option.
Option vf inspection is destroyed by the
sight of a pait of the article, where that
suffices as a sample of the whole. — IF a person
should look at a heap of grain, or at the
outward appearance of cloth which is folded
up, or at the face a female slave, or at the
face and posteriors of an animal, and then
make purchase of the same, he has no option
of inspection. In short, it is a rule that the
sight of all the parts of the merchandise is
not a necessary condition, because it is often
impracticable to obtain it. and therefore it
is sufficient to view that part whence it rr*y
be known how far the object of the purchaser
will be obtained. In the purchase, there-
fore, of articles of which the parts -
256
SALE
(VOL. II.
(such as articles sjld by weight or o- in suro-
mcnt of capacity, and the mode of as*, enam-
ing the goodness of which i^ by presenting a
sample to the purchaser) the sighc of a part
is sufficient ; that is, no option of inspection
can afterwards be clai.neJ un ess me ^
parts of the article should pruv_- inf.uol .
the part which has been seen In the pur
chase, on the other han i, of tilings of which
the individuals are not similar (such as cloths
or animals), the sight of one does no s ifli *e ;
— on the contrary, the purchiser nuut see
each individual article. Of this kind are
eggs and walnuts, according lo Kourokhee
(The compiler of this work o^.ervi- how
ever, that the»e are of the muue t>l W»I«MI
and barley, since thnr imlivi-iiulb aie nearly
alike,) Now su^h being thr sidb.ihheil run',
it follows that the sight of .* heap «it wheat
is sufficient, as the quality of w.iat is hidden ,
may be inferred from what is seen, wheat ,
being an article sold by measurement of |
capacity, and the equality of whic i may |
consequently be ascerta ned by means of a
sample : and in the same manner, the signt i
of the outside of a piece of cloth suffices, |
unless there be a particular part within the
folds necessary to be known, such a* (in
stamped cloths) the pattern, in which case
the option of inspection is not annulled until
the purchaser sec the inside °fth- piece In
the case of a man * on the other hand, a sight
of the face is sufficient; an 1 in animals a
sight of the face and posteriors — ^o.ne allege
that in animals a sight of the four and hinder
legs is necessary. What was first rela-.ed is
on the authority of Aboo Yoosaf In goats
purchased on account of their tlesh it is
necessary to squeexe and press the ttc-sh in
the hands, as that ascei tains the goodne-s of
it. But if purchased for breed, or for giving
milk, it is necessary to look at their Jngs.
In purchasing victuals ready dressed, it is
necessary to taste them, to ascertain their
goodness.
Option oj inspection in the purchase of a
house. — IF a person look at the tront of a
hous , and then purchase it, he has no option
of inspection, although he should not have
seen the apartments :— and so also, if a
person view the back parts of a house, or the
trees of a garden from without. Ziffer has
said that it is requisite that the purchaser
inspect the apartments of the house. Our
author also remarks that what is here ad-
vanced with respect to a sight of the front
or back part of a nouse being sufficien:, is
founded on the customs of former times,
when, all their builuingo being of a uniform
nature, the sight of the front or back parts
sufficed to ascertain the interior patts ; but
that in the present time i- is very necessary
to enter, in. as buildings are in these days
variously contructed, whence a view ot the
outside is no standard by which to judge of
the inside ; and this is approved.
* Meaning a slave set up to said.
As agent for seisin may inspect in the
same manner as the purchaser.— T HZ inspec-
tion of an agent appointed to take possession
of an article purchased is equivalent to the
inspection of the purchaser, and consequently
~r the inspection of such agent, the pur-
ser has no power of rejecting the article
rchased, unless in a case of a tie-feet. The
inspection, however, of a messenger on the
part of the purchaser is not equivalent to his
own inspection. This is the doctrine of
Haneefa The two disciples hold that an
ag^nt <tnd a massenger are in effect the same
(that is, the inspection of neither is equivalent
to that of the purehiser, and the* liberty
consequently, that the purchaser has after vard
of rejection in both instances. The argument
they adduce in support of then opinion is,
thatas the co.iuitu^ it has aypnnted the
agent merely to taK^ possession, and not to
annul his opt-on, it follow* that such annul-
ment does not belong to him , — in the same
manner as holds with respect to option from
defect : in other words, if an agjnt should
knowingly take possession of a defective
article, the option of the purchaser is not
thereby annulled : — and in the same manner
also, as holds with respect to a condition of
option ; that is, if a person should purchase
any article, vith a reserve of option, and his
agent, in the interval, take possession of the
article, the purchaser's right of option is not
annulled ; — and in the Hame manner also, as
holds in the wilful annulment of an option
of inspection ; as if an agent should take
possession of an article concealed, and after
inspection expressly declare the option to be
null ; in which case the purchaser's right of
option would nevertheless still continue in
force. —Haneefa, on the other hand, argues
that seisin, or to act of taking possession, is
of t vo kinds. — I. Perfect, which is the seisin
of the article with sight and knowledge,
II. Imperfect, which is the seisin of it with-
out sight, that is, whilst it is concealed. The
first is termed perfect, and the second im-
perfect, because the completeness of seisin
depends upon the completeness of the bar
gam.* which cannot be complete whils an
option of inspection remains ; and as, in the
former instance, this option has been done
away, it follows that the bargain is in that
instance complete and perfect ; but as in
the latter instance, on the contrary, it still
continues in force ; it follows that the bargain
is in that instance imperfect. — Now as the
constituent is empowered to take possession
in either of these modes, it follows that the
agent is equally empowered, since his con-
stituent has appointed him, in an absolute
manner, his agent for seisin. Where, how-
ever, an agent takes possession of an article
without seeing it, his p ower is terminated by
such imperfect seisin, and he consequently
cannot afterwards exerr an option of inspec-
•Arab. Safka, literally, the act of striking
hands, in making a bargain.
BOOK XVI.— CHAP, III,]
SALE.
237
tions so as to destroy that privilege on the part
of his constituent by any express declaration.
It is otherwise in the case of an option from
defect, because, ts that is no bar to the
completeness of the bargain, the seisin is in
that instance perfect, notwithstanding the
continuance of the option of defect — Con-
cerning the case of condition of option there
is a difference of opinion.— Admitting, how-
ever, that the agent has not the power of
annulling such option, it is because the con-
stituent himself is not in this case empowered
to make a perfect seisin, inasmuch as the
object of such conditional option is experience
and trial which can only be acquired after
seisin ; and as the constituent himself is not
empowered to make a perfect seisin, it follows
that his agent cannot be so. — With respect
to a messenger, he possesses no power, being
barely commissioned to deliver a message,
and cannot therefore be capable of taking
formal possession of any thing.
The inspection of a blind person may be
made by touch, smell, or taste.— SALE or pur-
chase, made by a blind person, is valid : and
after purchase, he has still an option as
having purchased an article without seeing
it ; wh ch option is determined by the touch
of the article, provided it be of such a
nature that the touch may lead to a
knowledge of it: or by the smell, if it be
of a nature to be known by the smell ; or by
the taste, if the article be of an esculent
nature ; — in the same manner as all these
modes determine the option of a person
possessed of sight.
Or (in A purchase of land) by description,
— TH« option of a blind person, in the pur-
chase of land, is not determined until a
description of the qualities of it be given to
him : because such a description is equivalent
to a sight of the object, as in the case of SiHim
sales.— It is recorded from Aboo Yoosaf, that
if a blind person, in purchasing land, should
stand on a spot whence, if he possessed his
sight, he might inspect the whole, and should
then declare, "I am content with this ground
which I have purchased/' the right of option
is annulled ; because the standing on the spot
in this manner is analogous to the actual
view of it ; and the semblance is equivalent
to the reality where the reality is unattain-
able ; as in the case of a dumb person, the
motion of whose lips is deemed equivalent to
the reading of the Koran ; or, as in the case
of a bald person, with respect to whom the
motion of the razor to and for over his head is
deemed equivalent (in case of his making a pil-
grimage to Mecca) to actual shaving. — hoosn-
Bin-Zceyad h s said that a blind person must
appoint an agent for seisin, who may inspect
and take possession of the article on his
behalf: and this is conformable to the
doctrine of Haneefa, who is of opinion (as
has been already explained) that the inspec-
tion of an agent is equivalent to that of his
constituent.
A sight of one of two articles, such as do
not admit of sample?, still leaves a power ef
rejecting both. — IF a person, having *een one
of two garments, should purchase both, and
should afterwards see the other, he has then
the option of rejecting both ; because, as gar-
ments differ essentially from one another,
a sight of one is not equivalent to a sight of
both ; and therefore his right of option re-
mains with respect to the one he had not
seen. He has it not in his power, however,
to reject that one singly ; for in such case an
alteration in the bargain would take place
before the completion of it,* as a bargain is
not complete whilst an option of inspection
remains : and hence it is that the purchaser
may reject the article, independent of an
order from the Kazee, or the consent of the
seller ; and such rejection is a dissolution of
the sale from the beginning,— in other words,
it becomes the same as if the contract had
never existed.
The option is destroyed by the decease of the
person with whom it rested. — IF a person
possessing the option of inspection should
die, the option in such case becomes null :
for (according to our doctors) it is not m
hereditament, as has already been explained
in treating of optional conditions.
Cases of inspection previous to purchase. —
IF a person, having once seen an article,
should afterwards, at a distant period, pur-
chase it, and the article, at the time of
purchase, exist in the form and description
in which he first saw it, he has not in this
case any option, because he is possessed of a
knowledge of the qualities from his former
inspection ; and an option is allowed only in
defect of such knowledge. — If, however, the
purchaser should not recognize or know if. to
be the same article, he has in that case an
option ; because under such circumstances his
consent cannot be implied ; or if, on the other
hand, the nature of the article be changed,
he has an option ; because the qualities being
changed, it becomes in fact the same as if he
had never seen it.
IF a purchaser and seller dispute concern-
ing any recentf change in the nature of the
* A contract of sale, when settled by the
parties, does not become complete until the
execution of it ; yet it cannot admit of any
alteration of the terms of it in the interval.
Thus, if two bushels of wheat be sold for two
dirms, and the parties, before the execution
of the contract, mutually agree to reduce the
sale to one bushel for one dirm, this agree-
ment, as being an alteration of the terms
previous to their fulfilment, would be unlaw-
ful. In short, it is requisite, in this instance,
either that the parties previously dissolve
the first contract, and then enter into a new
contract of sale of one bushel for one C&BI ;
or that they formally complete the first con-
tract by mutual seisin, and that the purchaser
then sell one of the bushels to the seller for
one dirm.
fArab. Hadis [or Hadith], meaning, super-
venient upon the contract.
258
SALE,
[VOL II.
article,— the purchaser asserting this cirunv
stance, and the seller denying it,— in this
case the allegation of the seller, confirmed
by an oath, must be credited ; because the
interval between the sight and the purchase
being short, the probability is in favour of
the assertion of the seller, that such change
did not happen till after the purchase had
taken place. If, however, a long period
should intervene between the sight and the
purchase, our doctors are in this case of
opinion that the allegation of the purchaser
is to be credited ; because, as it is the nature
of everything to decay in course of time, it
follows that his assertion is supported by
probability.
IF the parties dispute concerning the period
when the article was inspected, the seller
asserting that the purchaser had first seen
and then purchased the article, and the pur-
chaser denying this, — in that case the alle-
gation of the purchaser, upon oath, is to be
credited.
A person, after disposing of a part of his
purchase, has no option with respect to the
remainder. — IF a person purchase a bundle of
clothes of a Zoota* without seeing them, and
afterwards sell or give away par*^ of them ;
in this case he has not the power of rejecting
any of those that remain unless they should
prove defective. In the same manner, if he
purchase a bundle of clothes of a Zoota, stipu-
lating a condition of option, and afterwards
sell or bestow in gift part of them, his right
of option is annulled ; because it is not in his
power to reject what he has no longer any
property in ; if, therefore, he were to reject
the remainder, it would induce a deviation
from the bargain before the completion of it
(for the existence of an option of inspection,
or of a condition of option, is a bar to the
completeness of the bargain). It is other-
wise in an option from detect ; as the bargain,
notwithstanding the existence of such option,
is completed upon seizing the article sold,
although it be not complete before seisin ; —
but the present case proceeds on the supposi-
tion of possession having been taken. If,
however, the supervenient deeds of sale or
gift, on the part of the purchaser, be rendered
null (as if the secondary purchaser should
undo the bargain on account of the discovery
of a defect,— or, as if the purchaser himself
should recede from his gift), in this case the
option of inspection still remains. — This is
from Shimsh-al-Ayma. It is related, as an
opinion of Aboo Yoosaf, (hat an option of
inspection once annulled cannot again re-
vive, any more than a conditional option ;
and Kadoore has adopted this doctrine.
* A tribe of black Arabs.— "Zoot.— A tribe
of<A;abs who formerly inhabited the fenny
region lying between Wadis and Basra ;
they were defeated and reduced to servi-
tude by Mootasim, the eighth Khalif/'— (De
Herbelot.)
CHAPTER IV.
OF OPTION FROM DEFECT.
A purchaser discovering a defect in the
article purchased, is at liberty to retuin it to
the seller — IF a person purchase and take
possession of an article, and should after-
wards discover it to have been defective at
the time of sale, it >s at his option either
to take it for the full price, or to reject it :
because one requisite, in an unconditional
contract [of sale], is that the subject of it be
free from defect ;--when, therefore, it proves
otherwise, the purchaser has no option ; for
if the contract were obligatory upon him,
without his will, it would be injurious to
him. He is not however, at liberty to retain
the article, and exact a compensation, on
account of the defect, from the seller ; be-
( cause, in a contract of sale, no part of the
I price is opposed to the quality of the article
— and also, because the seller does not con-
sent to be divested of the property for a less
price than that which he stipulates : — if,
therefore, the purchaser were to retain the
defective article and exact a compensation
from the seller on account of the defect, it
would be injurious to the latter : — but it is
possible to obviate the injury to the pur-
chaser without entailing an injury on the
seller, by permitting him either to retain the
article, if he approve oc it with the defect,
or to reject it.
Unless he was aware of the defect before-
hand.— IF, however, the purchaser, at the
time of sale, or of taking possession, be aware
of the defect, and nevertheless knowingly
and wilfully make the purchase, or take
possession, no option remains to him ; be-
cause when he thus purchases or takes posses-
sion of the article, it is evident that he assents
to tKe defect.
Whatever tends to depreciate an article
is a defect.— WHATEVER may be a cause of
diminishing the price amongst merchants
is considered as a defect ; because injury is
occasioned by deficiency in point of value
and deficiency in point of value occasions
deficiency in price ; and the mode of ascer-
taining this is by consulting merchants who
are practised in estimating the value of
articles.
Defects incident to children affect the sale
of a slave during infancy, but not after
maturity. — A DISPOSITION to abscond, or to
make urine upon carpets, or to commit theft,
are defects in children during their nonage,
but not after they attain to the age of ma-
turity. If, therefore, any of these defects
appear in an infant slave during childho-d
whilst in the hands of the seller, and after2
wards appear in him during childhood whilst
in the hands of the purchaser, he [the pur-
chaser] is in that case at liberty to return
him to the seller, in virtue of option from
defect ; because this is the same defect that
existed whilst in the possession of the seller.
If, on the other hand, any of these defects
BOOK XVI.-CHAP. IV.]
SALE
259
should occur in him, in the purchaser's
hands, after he attaiins to maturity, the
purchaser is not at liberty to return him by
option from defect ; because this defect is
different from that which appeared during
childhood m the hands of the seller, since
these effects proceed from different causes in
the periods of childhood and t maturity ; for
the making of urine upon a carpet (for
instance) during the time of childhood, is
owing to a weakness in the bladder,~where-
as, after maturity, it arises from a disease in
the interior parts ; and, in the same manner
the running away of a child is from a desire
of play ; and the commission of theft from
thoughtlessness ; but these, where they occur
after maturity, are the eifect of innate
wickedness. By a child is here meant one
in its perfect senses ; for a child not in its
perfect senses is incapable of running away ;
whence it is that the term used in that case
is lost or strayed, not absconded : — the run-
ning away, therefore, of such a one is not a
defect
Lunacy operates as a perpetual defect,
provided it ever occur after the sale. — MAD-
NESS during infancy operates as a perpetual
defect ; — in other words, if an infant slave be
subject to lunacy in the hands of the seller,
and the lunacy recur whilst in the hands of
the purchaser, whether during childhood or
after maturity, the purchaser is at liberty to
return him to the seller ; because the mad-
ness is in effect the same as had originally
existed whilst the slave was yet in the
seller's hands, as being occasioned by the
same cause, namely, an internal malady —
It is not, however, lo be understood (as some
have imagined) that the return of the mad-
ness is not required as a condition to enable
the purchaser to dissolve the bargain ; for
GOD Almighty, as being ail powerful, may
remove the madness, although that seldom
happen. Hence it is necessary that the mad-
ness return, to enable the purchaser to dis-
solve the bargain ; for, unless it actually
return, he has not this privilege.
Defects which operate in the sale of female
slaves, but not of males. — A BAD smell, from
the breath or armpits, is a defect in regard
of female slaves, because in many instances
the object is to sleep with them ; and the
existence of such defects is a bar to the
accomplishment of that object. — These, how-
ever, are not defects with regard to male
slaves ; because the object, in purchasing
them, is merely to use their services ; and to
this these defects are not obstacles, since it is
possible for a slave to serve his master with-
out the necessity of the master's sitting down
with him, so as to receive annoyance from
these defects, — If, however, they proceed
from disease, they are considered as defects
with regard to male slaves also.
WHOREDOM and bastardy are defects with
regard to a female slave, bul not with regard
to a male ; because the object in the pur-
chase of female slave, is cohabitation and j
the generation of children, which must be
affected by either of the above circum-
stance ; whereas, the object in the purchase
of a male slave is the use of his services, the
value of which is not depreciated by his
committing whoredom. — If, however, a male
slave be much addicted to whoredom, our
lawyers are of opinion that it is a defect
because in the pursuit of women he neglects
the service of his master.
Infidelily is a defect in both male and
female slaves.— INFIDELITY is a defect in
both a male and female slave* because the
disposition of a Mussulman is averse to the
society of infidels ; and also, because as, in
the expiation of murder, the emancipation of
an infidel slave does not suffice, it follows
that the possession of such a slave is not
what is desired, since a part of the object is
thus defeated. If, on the contrary, a person
should purchase a slave, on condition of his
being an infidel, and he afterwards prove a
Mussulman, the purchaser has no power of
dissolving the bargain, since the exemption
from infidelity is no defect.
Constitutional infirmities are defects in a
female slave. — A TOTAL suppression of the
courses, or an excessive evacuation of them,
are defects with respect to a female slave, as
they proceed from internal maladies It is
to be observed, however, that the want of
the courses is not considered as a defect
until thi extreme period of maturity be
elapsed, which in females (according to
Haneefa) is seventeen years : and this know-
ledge must be had from the information of
the slave herself. — If. therefore, a person
purchase a female slave arrived at full
maturity (that is, seventeen years of age;,
and learn from herself that her courses have
not appeared, he is then entitled to return
her to the seller before taking possession ;
and even after taking possession, provided
the seller simply deny the circumstance, and
refuse to confirm it with an oath. If, how-
ever, the seller deny the circumstance upon
oath, the purchaser is not entitled to return
her.
A purchaser is entitled to compensation for
a defect in an article where it has sustained
a further blemish in his hands ; but he can-
not, in this case, return it to the seller. — IF
an article, after being sold, should receive a
blemish in the hands of the purchaser, and
the purchaser should afterwards learn that
it had also a blemish at the time of sale, he
is, in that case, entitled to receive from the
seller a compensation for the defect ; but he
is not permitted to return it to him, as that
would be attended with an injury to the
seller, since it would necessitate him to
receive again into his property a thing with
two blemishes which, in issuing from him,
had only one. As, therefore, the return of
the article is in this case impracticable, and
* That is, supposing the slave to be pur-
chased as a Mussulman, and he prove to have
been an infidel at the time of purchase.
260
SALE
as it is necessary to remove injury from the
purchater, the expedient of entitling him to
a compensation from the seller for the de-
fect has been devised : unless, however, the
seller should consent to receive it with the
two blemishes, and voluntarily acquisce in
his own loss.— By the phrase compensation
for defect, is to be understood, throughout
this work the difference between the value
of an article in its perfect state, and the
value it afterwards bears in its defective
state.
A purchaser is entitled to compensation for
a defect discovered after the article has been
cut vp — IF a person purchase cloth, and cut
it up, and then, before he had begun to sew
it, discover it to be defective, he is in this
case entitled to a compensation for the de-
fect from the seller ; because although, in
consequence of the cloth being cut, a bar be
opposed tothi returning of it to the seller
(as the cutting is a defect which the our-
chaser himself is the occasion of), yet the
return is eventually possible, by the seller's
acquiescing in it. which he may do if he
please, since the bar is opposed only in
tenderness to his right ; and this right it is
in his power to forego
Unless, after cutting, he put it out of his
power to restore it to the sellers. — IF how-
ever, after cutting the cloth, the purchaser,
should sell it to another, he is not then
entitled to any compensation for the defect ;
for although, after cutting the cloth, the bar
to his returning it to the seller, may be
eventually removed, by his [the seller's] ac-
quiescence, yet when the purchaser after-
wards disposes of it to another, he himself
fixes a bar to the possibility of its being
returned to the seller, for which reason he is
not entitled to a compensation for the defect.
Or, if the retuin be rendered impracticable
by any change wrought upon the subject prior
to the sale he is entitled to compensation for
defectt notwithstanding the sale of it. — IF a
person purchase cloth, and, after cutting
either dye it or sew it, or purchase flour
and mix it up with oil, and afterwards
discover the article to be defective, he is in
ihjt case entitled to a compensation for the
defect : because the return of the article to
the seller is in either of those instances
impracticable, as it has become implicated
with a thing which cannot be separated; it
is therefore impossible to return the article
simply by itself; nor can it be returned
with the addition, since the addition was
not in any respect a subject of the sale ;
and the seller, moreover, is not at liberty to
receive it back with such addition, because
the obstacle to the return, in these instances,
is not in right of the seller, but in rijjht of
the LAW.* If the purchaser, therefore, in
* Because the LAW (meaning the text of
the Koran) forbids usury, under which head
this transaction falls, as being the receipt of
an addition, with the original.
any of these instances, should sell the
article, after discovering it to be defective,
he is still entitled to compensation from
the seller ; because, as the bar to his return-
ing the article to him existed previous to the
sale of it on his part, he cannot by such
sale be considered as the cause of detaining
it from the seller.
Appropriation of a purchase to the , use of
an infant (implied in any act concerning it
which has a reference to the infant) by
precluding a return to the seller, leaves the
purchaser no right to compensation for a
defect. — IF a person purchase cloth, and
cut it out for clothing on account of an
infant son, and after having sewn it up dis-
cover a defect in it, he is not entitled to a
compensation for the defect from the seller.
If, however, the son in this instance be an
adult, the purchaser is entitled to such
compensation —The reason of this distinc-
tion is that, in the former instance, the
right of property, with regard to the infant,
takes place immediately on the cutting of
the cloth, and previous to its being sewn ;
and consequently, as the purchaser by this
act invests the infant with a right of
property immediately upon cutting the
cloth, he becomes the cause of the detention
of it from the seller previous to its being
sewn, and is therefore not entitled to the
compensation : — in the latter instance, on the
contrary, the right of property with regard to
the adult does not take place upon the sewing,
nor until he actually take possession of the
garment; arH hence, as it is by the sewing,
and not by the investiture in the adult, that
the return of the cloth to the seller becomes
impracticable, it follows that the purchaser ;
by making this inve^iture, does not detain
the cloth from the seller and consequently
that he is entitled to a compensation.*
T{j\e purchaser of a slave ii entitled to a
compensation for defect, after the death or
emancipation of the slave. — IF a a person
purchase a slave, and afterwards emancipate
him, — or the slave die in his hands, and
purchaser then become acquainted with his
having been defective, he is in either case
entitled to a compensation from the seller:
— in case of the slave dying, because death
renders his property in the slave complete
and perfect, and the impracticability of re-
turning him does not arise from any act of
the purchaser, but from an unavoidable
calamity ; — and also in case of his emanci-
pating the slave, upon a favourable construe-
* As an infant is incapable of taking
possession in a case of gift, the property
vests in him immediately on the declara-
tion of the donor; or on his [ the donor's ]
performing some act which manifests his
intention as in the cutting of the cloth by
the purchaser in the above case : in the case
of an adult person, on the contrary, actual
seisin is requisite to an investiture with right
of property.
BOOK XVI.— CHAP. IV.]
SALE.
261
tion of the law.— Analogy would suggest [
that in this last case the purchaser is not ,
entitled to a compensation, because the
obstacle to the return proceeds, in this
instance, from the act of the purchaser : the
case, therefore, is the same as if he had
killed the slave ; and as, in that case, he
would not have been entitled to any com-
pensation for defect, so in this instance |
likewise. He is, however, so entitled, upon j
a favourable construction, because by the ,
emancipation his property attains to its
height and completion ; for MAN is not, in
his original nature, a subject of property,
all men being originally created free ; nor ,
can any right of property exist with respect ,
to him but under restriction, and of limited
duration, continuing in force no longer than
until he be made free : emancipation, there- I
fore, like death, occasions a completion of '
right of property, and it may consequently
be said that a right of property still remains
in the subject of the sale, notwithstanding ,
the impossibility of returning it, as a thing ;
is rendered fixed and unalterable by its ,
completion.- -It is to be observed that con-
stituting the slave a Modabbir or an Am-
Walid is, m this particular, equivalent to
emancipation.
But not a/tfr the emancipation, where it
has been granted in retain for property. — IF
a person purchase a slave, and afterwards ,
emancipate him in return for property,* and ;
then discover him to have been defective, he j
is not entitled to a compensation from the
seller, as the detention of the return is, in
effect, a detention of the consideration. — It ;
is recorded, from Haneefa, that the pur- !
chaser is in this case also entitled to a
compensation ; because an emancipation, |
whether it be gratuitously made or other-
wise, occasions the completion of the right
of property. *
Nor after his death, where he has been
slain by the purchaser. — IP a person pur-
chase a slave, and afterwards put him to ;
death, and then discover him to have been ,
defective, he is not entitled to a compensation :
for the defect, according to Haneefa. — This
also is agreeable to the Zahir-Rawsyet —
It is reported, from Aboo Yoosaf. that the
purchaser is entitled to a compensation ; i
because the law annexes no wordly pun-
ishment to the murder of a slave by his '
master, f and the case is therefore the same '
as if he had died a natural deatht The
principle on which the Zahir-Rawayet pro-
ceeds is that murder, wherever it takes
place, occasions responsibility ; and as, in
the case of a master killing his slave, the
responsibility is remitted only on account of
the master's right of property, the master i
consequently, as it were, takes the responsi- •
•See Manumission for a Compensation.
t That is, it only subjects the murderer to !
expiation by charity, fasting, or other re- !
ligious penances. ;
bility* in return for his right of property -
the case is therefore the same as if he had
sold the slave. It is otherwise where he
emancipates him without any return, as that
act doet not occasion responsibility, any more
than where a poor person emancipates his
portion in a partnership slave.
A purchase of food is not entitled to a
compensation for defect after having eaten
it. — IP a person purchase any articles of
food, and eat them, and be then informed
of a defect in them, in that case, according
to Haneefa, he is not entitled to any com-
pensation from the seller. — According to the
two disciples he is entitled to a compensa-
tion. The same difference of opinion subsists
with respect to the case of a person who,
having purchased garments, and worn them
until they had become ragged, then discovers
that a defect had formerly existed in them.
— The arguments of the two disciples are,
that the purchaser having performed no act
with respect to the subject of the sale but
what is agreeable to the object of the
purchase, and what is customary, the
case is therefore the same as if he had
emancipated a slave. — The argument of
Haneefa is that the return of the food to
the seller is impracticable, because of the
purchaser having performed an act with
regard to it which induces responsibility ;
and the case is therefore the same as that of
sale or of murder. The act of a purchaser,
moreover, although it be the object of the
purchase, is nevertheless disregarded :
whence is that the purchaser is entitled
to no compensation for a defect, after having
sold the goods notwithstanding sale be one
of the objects of purchase.
And so a/so, after having eaten only a part
of the food. — IP a person purchase certain
articles of food, and eat part of them, and
then discover them to be defective, he is not,
according to Haneefa, entitled to return to
the seller what remains, and to demand from
him a compensation for the defect in what he
had eaten ; because provisions are in the
nature of an unity ; and the case is therefore
the svme as if a person we-e to sell part of
goods purchased by him, and then to discover
a defect in them ; in which case he would
not be entifled to return the remainder to
the seller, and demand a compensation foi
the defect ; and so also in the case in ques-
tion. There are two opinions of the two dis-
ciples on this case. According to one opinion,
rhe purchaser may retain the remaining part
of the provisions, "and receive from the sellei
a compensation for the defect of the whole
and, according to the other, he may return
the remaining part to the seller and receive
a proportionable compensation for the defect
of what he had eaten.
Case of defect in very perishable commo-
dities.— IF a person purchase eggs, rrttKil
* In other words, "bears the loss."
262 SALE
melons, cucumbers, walnuts, or the like, and
after opening them discover them to be of
bad quality; in that case, if they be alto-
gether unfit for use, the purchaser is entitled
to complete restitution of the price from the
seller, as the sale is invalid, because of the
subject of it not being in reality property
If, on the other hand, notwithstanding their
badness : they be still fit for use, the pur-
chaser is not entitled to return them to the
seller, because the opening of them is an
additional defect of his own creation : he is,
however, entitled to a compensation for the
defect ; as by this means the injury he would
otherwise sustain is remedied to the greatest
possible extent. Shafei has said, that he is
entitled to return them after opening them ;
because that is the exercise of a power
committed to him by the seller. In reply to
this our doctors argue, that the seller has
empowered him to open them in virtue of"
his becoming the proprietor. Hence the
case is the same as where a person purchases
a garment, and, having cut it discovers a
detect in it ; in which case the purchaser
is not entitled to return the narment upon
the seller's hands, although he [the seller]
had authorized him to cut it down. In
short, if the articles prove defective only in
a small part, the sale is valid, upon a favour-
able construction, because it is incident to
walnuts, and such other articles, to be bad
in a small part (by a small pare is meant
what is commonly the case, such as one or
two in a hundred) ; but if, on the other
hand, a great part prove bad, the sale is
invalid, and the purchaser is entitled to a
complete restitution of the purchase money ,
because in this case the seller has united
together entitles and non-entities with re
js'ard to value ; and the case is therefore the
same as if a person were to sell toeether
freemen and slaves.
Case of a purchaser selling what he has
purchased, which is afterwards returned to
him in consequence oj a defect. — IF a per-
son, having purchased a slave, should sell
him to another, and that other retura the slave
to him on discovering him te be defective,
and he agree to receive him back, on the
Kazee's issuing a decree to that effect,
founded on the proof of the defect by wit-
nesses, on the refusal of the first pur-
chaser to confirm his denial upon oath, in
that case the first purchaser is entitled to
return the slave to the seller ; because,
although it be not Inwful ,for a purchaser,
after the sale of the article on his part, to
return it to the seller, still, in this case, the
second sate having been annulled by the
Kazee, it becomes the same as if no such
sale had ever existed,
OBJECTION. — As the first purchaser denied
the ^defect, and obliged the second purchaser
to 'establish the fact by witnesses, it would
appear that he is not entitled to return the
slave ; because, if he ground his right on the
defect, he is guilty of prevari .ration, since he
first denies the defect, and then asserts it.
II.
REPLY.— The disproof of the denial by
the Kazee's decree, founded on the proof of
the fact by witnesses, renders such denial of
no validity in law, hence the apparent con-
trariety of his denial and assertion is recon-
ciled, and as the first sale continues in force,
and the defect is at the same time proved,
it follows that he Is entitled to return the
slave to the seller. If therefore, he choose
to return him, it is a valid rejection ; but if
he should rather choose to keep him, the sale
continues in forc>: It is otherwise (where
an agent for sale disposes of an article, and
the purehaser returns it to the agent in con-
sequence of a defect : for this is in reality a
return to the constituent ; and the agent is
not required to return the article to his con-
stituent, because, in this case, their is only
one sale, whereas in this case in question
there are two, whence the dissolution of the
second sale does not dissolve the fir^t. In
short, if the second purchaser, on the dis-
overyofa defect, return the slave, and the
first purchaser receive him back, in conse-
quence of a decree of the Kazee, he [the first
purchaser] is in that case entitled to return
him tc the original seller If, on the other
hand, the first purchaser agree to receive
him back without a decree of the Kazee, he
in that case is not entitled to return him
to the original seller, because, although the
second sale be annulled with regard to him-
self and the second purchaser, still it is
equivalent to a sale de nov;> with regard to
all other person ; and the original seller is
another person — it is recorded in the Jama
Sagheer, that when the suDJect of the sale is
returned to the first purchaser, without a
Jecree of the Kazee. on account of such a
detect as very rarely happens (such as an
additional finger, for instance), the first
purchaser lias not the power of returning it
to fhe original seller ; and thi* (as our author
remarks) is a direct proof that the effect is
the same in both ca^es ; t ,at is, whether the
defect be of such a nature as may have
recently happened, or such as never recently
hippens. In some tiaditions it is men-
tioned, trut in the latter case the purchaser
may return lha subject of sale to the original
seller, as there is then a certainty thai such
defect did exist whilst in the hands of the
original seller.
Conduct to be observed by the magistrate.
in case of a purchaser, after taking possession,
alleging a defect in the article — IF a person
purchase a slave, and take possession of
him, and then assert a defect in him, the
Kazee in such case must not enforce ths
payment of the price on the part of the pur-
chaser untill he shall have investigated his
assertion, either by the declaration of the
seller, upon oath, that the slave had no
defect, or by the proof of the fact on the
part of the purchaser by witnesses. The
suspensions of the Kazee's decree with regard
to the payment of the price is requisite, lest
such decree should be rendered vain and
useless by the subsequent proof of the
BODK X VI.— CHAP. IV.]
SALE
defect ; and also, because the tenor of such
decree is that the purchaser shall pay the
complete price in fulfilment of the specific
claim of the seller, — whereas the purchaser,
by asserting a defect, denies the obligation
on him to pay the complete price. The
Kazee, therefore, must first proceed to exa-
mine into the circumstance of the defect ;
and if the purchaser should say that his
witnesses are in Syria.* he must then exact
from the seller his denial upon oath. If the
seller should take the oath accordingly, the
Kazee must then decree the payment of the
price ; because in suspending the price till
the arrival of the witnesses an injury would
result to the seller ; and the immediate en-
forcement of -he payment does not in so
great a degree it jure the purchaser, because
after the return of the witnesses from Syria,
if he should establish his proof, the purchase
money will be returned to him on his return-
ing the slave to the seller. If, however, the
seller should refuse to take an oath in sup-
port of his denial, the assertion of the pur-
chaser is then established, as such ref'isal is
an argument in favour of the existence of
the defect.
Case of a purchaser alleging the existence
of a defective property before he had made
the purchaser ; and the forms of deposi-
tion to be required of the seller in this
instance. — IF a person, having purchased
a slave, should afterwards assert that "he
had run away from him, and had also run
av/ay whilst in the possession of the seller,"
and the seller offer to take an oath that "he
had never run away from him" [the pur-
chaser], the Kazee must in that case refuse
to receive his deposition, until the purchaser
first prove by witnesses that "he had run
away from him" [the seller], after which
the Kazee must tender an oath to the seller
to this purport, " by GOD, I have sold «the
said slave and delivered him to the pur-
chaser, and he never ran away whilst he
belonged to me" fas is mentioned by Moham-
med in the Jama) ; or to this purport, "by
GOD, the purchaser has no right to return
to me such slave, on account of the defect
which he asserts • " or in this manner, f by
GOD, such slave never ran away whilst he
belonged tome." He must not, however,
tender an oath to him to this purport, "by
GOD, I sold the said-slave at a period when
he had not the said defect :" nor in this
manner, "by GOD, I sold the said slave and
delivered him to the purchaser at a period
when he had not the said defect ;" because,
in taking such oaths, the meaning of the
seller may be, that "although he had such
a defect formerly, yet he had it not at the
identical period of sale or delivery;" and
thus, without any deviation from truth, he
may defraud the purchaser of his right. If
the purchaser should not be able to prove,
* That is, at such a distance as renders
their appearance in court impracticable.
by witnesses, that the slave had run away
from him [the purchaser] the oath, in that
case also (according to the two (disciples)
must be tendered to the seller. Our modern
doctors have differed concerning the opinion
of Haneefa upon this point ; as some of them
say that, according to him, an oath is not to
be administered to the seller in this instance.
The argument of the two disciples is. that
a? the assertion of the plaintiff is worthy of
regard, and such as would be attended to
in case of its being proved by witnesses, it
follows that in default of such witnerses the
seller must be required to deny the asser-
tion upon oath. The reasoning of Haneefa
(as recorded by those who have said that,
according to him, an oath is not to be ad-
ministered to the seller) is th&t the form of
swearing a defendant has been ordained by
the LAW for the purpose of removing any
litigation that may happen to arise, — not
for the purpose of exciting litigation. Now.
in the present case, the exaction of an oath
from the seller will only give birth to a new
litigation : because, in case he should refuse
to t ke it, and the proof of the fact be thence
established, it will become a new subject of
contention whether the said defect did exist
or not during his being in the seller's pos-
session, and there will be a necessity for
tendering to him another oath, upon this
point, for the purpose of removing this fresh
cause of dispute.
IF a person purchase a female slave, and
having received her from the seller, should
on the discovery of a defect, desire to return
her, and the seller assert that "he had sold
two female slaves to the purchaser of which
he only produced one," and the purchaser
maintain, on the other hand, that "he had
only sold one," — in that case the declaration
of the purchaser, upon oath, is to be credited;
for, as the disagreement here relates to the
quantity taken possession of, the person who
took possession must be credited, as being
the most competent judge ; — in the same
manner as holds in a case of usurpation ; —
that is if the person whose property is
usurped assert the usurpation of a par-
ticular quantity, and the usurper deny the
quantity, his declaration upon oath is to be
credited ; and so also in the case in ques-
tion. If, on the other hand, the purchaser
and seller agree in the extent of the sale,
but differ with respect to that of the seisin
(as if both sh uld allow the two female slaves
to have been the .subject of the sale, —the
seller asserting that " the purchaser had
received both," and the purchaser, on the
other hand, maintaining that "he had only
received one")— -in that case also the decla-
ration of the purchaser, upon oath, is to be
credited, for the reason already explained.
Case of a person purchasing two slaves,
one of whom proves defective. — IF a perHoti
purchase two slaves by one contract, and
take possession of one, and then discover
the other to be defective, he is not in that
case permitted to retain the one he had
264
SALE
[VeL. II.
taken possession of, and to relinquish the
other ; but he has the option of either re-
taining or relinguishing both ; because until
both be taken possession of , the terms of the
contract are not fulfilled; and hence, if he
should retain one and relinquish the other,
it would induce a deviation from the bar-
gain previous to its fulfilment, which (as
was before explained) is unlawful. If the
defect should lie in the slave of which pos-
session hid been taken, in that case there
is a disagreement among our doctors. It is
recorded, from Aboo Yoo^af that the pur-
in such case entitled to return the
The more approved
that he nvist retain
Jefective slave only,
doctrine, however, is
both or relinquish both ; because the fulfil-
ment of the Dart am rests upon a complete
possession of the subject of the sale, namely,
the two slaves This case, therefore, r«'-
sembles a case of detention of the article
•old, in satisfaction for the price ; that is, if
the seller should detain the goods in satis-
faction for the price, such detention cannot
be abrogated until he actually receive com-
plete possession of the price ; and in the
game manner, in the case in question, the
bargain is not perfected until 'he purchaser
receive complete possession of the articles
sold. If, however, in the case in question,
the purchaser should have made seism of
both, and should afterwards discover a defect
in one of them, he is then entitled to return
the defective one singly. Ziffer has given
a different opinion ; because in this case a
deviation from the bargain takes place ; and
it is not free from injury, since it is an estab-
lished custom, in sales, to unite good and
bad things together ; the ca^e is therefore
the same* as if he had rejected one before
the seisin of the whole,— or as if he had
made the purchase under a condition of
option, or with an option of inspection
Our doctors, on the other hand, allege that
in this case the deviation from the bargain
takes place after the fulfilment of the con-
tract ; because the seisin of the goods ren-
ders the contract complete ; and the existence
of the option of defect does not operate against
the completion of the contract after seisin.
A deviation, moreover, from the bargain,
after the fulfilment of it, is lawfrl, as has
been already demonstrated, whence it is
that if, after taking possession of both slaves,
one of them should be found to be the pro-
perty of another, the purchaser is not in
that case at liberty to return both to the
seller ; but must retain one, and receive
from the seller a deduction of the price, on
account of the one Belonging to another,
notwithstanding this be a deviation from
the bargain, — contrary to conditional options,
or options of inspection, for the existence
ofwih conditions is a bar to the fulfilment
of the bargain, notwithstanding seisin may
have taken place,
In the purchase of articles of weight, or
measurement of capacity, the part which
proves defective may be returned to the
seller.— IF a person purchase articles esti-
mable by weight, or by measure of capacity
(such as silver or wheat, for instance), and
he afterwards discover the article to be in
part defective, he is entitled, in that case,
either to return the whole to the seller, or to
retain the whole ; but he has not the power
of returning the defective part only, because
the unities of articles estimable by weight
or by measure of capacity are considered
as forming one individual, provided they be
all of the same specits
that this proceeds on a
Some have alleged
supposition of the
articles in question being contained in one
vessel ; but that, if they be contained in
two, the one containing the defective article
may be returned, and the other retained.
If a part of such articles prove the pro-
perly of another, still the purchaser is not at
liberty to return the remainder.— lv, after
the purchase of articles estimable by weight,
or measurement of capacity, a part of t hem
should prove to be the property of another,
the purchaser is not in that case allowed to
return the remainder to the seller ; because
no injury can result to him from his being
obliged to keep them, as articles of this
nature may be separated and divided with-
out sustaining any blemish, and the proof of
part of the subject of the sale having been
the property of another is no impediment
to the completion of the con ract s»ince that
depends on the consent ot tlv seller and
purchase!, and not of the person who is
discovered to be the proprietor of a part.
This is where possession has been taken by
the purchaser, before a part of the subject
is discovered to be the right of another ; —
for if the right of property of the other be
discovered previous to the purchaser taking
possession, he is, in that case, entitled to
return the remainder, since a deviation from
the contract takes place previous to the com-
pletion of the bargain. If the articles be
not such as are estimable by weight, or mea-
surement of capacity, but cloth, for instance
then the purchaser is entitled to return the
remainder to thes:ller at all events, as divi-
sion and separation of the article would, in
this instance, prove an injury to it.
A purchaser, by applying a remedy to the
defective article, or making of it, deprives
himself of the power of returning it to the
seller.— If a person purchase a female slave
and discover that she has an ulcer or some
other such ailment, and apply a remedy to
it,— or, if a person purchase an animal, and
discover it to be defective, and ride upon is
on some business of his own, — the application
of a remedy in the one case, or the act of
riding in the other, indicate an acquiescence
in the defect on the patt of the purchaser
and he is therefore not entitled to return
either the slave or the animal on the plea
of an option from the disco very of a
defect, it would be otherwise if he had
purchased the animal on a condition of
option ; for the object of such condition is
an experimental knowledge, which cannot
BOOK XIV —CHAP. IV]
SALE.
26!
be obtained but by a trial. If, moreover, he
were to ride upon the animal, not on his own
business, but merely with an intention of
restoring it to the seller, no inference could
be drawn of his acquiescence in the defect ;
— and so also, if he were to ride upon the
animal with an intention of giving it water
or forage ; provided, however, the riding
for these purposes be unavoidable, either
because of the animal being unruly and
ungovernable, if not mounted, or because
of the purchaser himself being incapable of
walking . e
If a purchased tlave suffer amputation jor
a theft committed with the seller, the pur-
chaser may return htm, and receive back the
price. — IF a person purchase and take
possession of a slave, not knowing that he
had formerly, whilst in the possession of the
seller, been guilty of theft, and the theft
be afterwards proved, and the slave suffer
amputation for it in the seller's hands, the
purchaser is, in that case, entitled, according
to Haneefa to return him to the seller, and
receive back the whole of the price. Accord-
ing to the two disciples, the purchaser is
still to keep possession of the slave, and to
receive from the seller the/difference between
the value whilst in his perfect state, and
that which he bears after his hand is cut
off.
And so also, if he suffer death for a crime
committed with the teller —THE same dis-
agreement subsists in case of a slave suffer-
ing death whilst in the possession of the
purchaser, for a crime he had committed
whilst in the possession of the seller ; Haneefa
being of opinion that the purchaser is en-
titled to the restitution of the whole of the
price ; and the two disciples, that he is
entitled only to the difference between the
value of the slave before his blood has become*
neutral, and that which he bears after it
has been neutral.* In short, according to
Haneefa, the existence of a cause of mutila-
tion or death is equivalent to a elaim of
right,t— whereas, according to the two
disciples, it is equivalent to a defect. The
reasoning of the two disciples is that the
cause only of multilation or death occurred
with the seller, but not the actual death or
mutilation itself ;— now the existence of a
cause of death or mutilation is not repugnant
to the subject being property ; the slave,
therefore, notwithstanding the existence of
the cause of mutilation or death, is never-
unless property, and capable of being the
subject of a sale ; as, however, a slave in
whom existf a cause of death or mutilation
is defective, it follows that the purchaser is
entitled to receive from the seller a compen
•That is, has become forfeited to the LAW,
and consequently liable to be shed without
responsibility.
tin other words, is the same, in effect,
as if the slave, after the purchase, should
prove to be the property of another person.
sation for the deficiency, where the return
las become impracticable; and in either ol
these instances the return is impracticable ;
— where he suffers death, evidently ; and
also, where he suffers mutilation, because
such mutilation is a defect that has taken
place in the hands of the purchaser ; — in the
same manner as where a person purchases
a pregnant female slave, being ignorant of
the circumstance, and the slave dies in
labour, in which case the purchaser is
entitled only to a compensation for the
difference between the price which sHe bore
when not pregnant, and that which she bore
when pregnant. The reasoning of Haneefa
is, that the cause of mutilation and death
occurred with the seller : and as a cause
induces its effects, the death or mutilation
must be referred to the period of the cause.
The case is, therefore, the same as if a person
were to usurp a slave, and the slave, whilst
in his possession, were to commit a crime
inducing mutilation or death, and the
usurper then restore him to his proper
owner, and the slave then suffer death or
mutilation ; for in that case the usurper
would be responsible for the whole of the
value to the owner ; in the same manner as
he would have been in case of the slave's
having been put to dea*h whilst in his own
possession, as the cause, in either instance,
occurred with him. With respect to the
case of pregnancy, adduced by the two
disciples, it is not admitted by Haneefa. If.
however, it were admitted, still there is no
analogy between it and the case in question,
since pregnancy is the cause of delivery, and
not of death, except in a few instances.
Case of a slave Buffering amputation for
two thefts, one committed with the seller, and
the other with the purchaser. — IF a slave first
commit theft with the seller, and then, after
being sold, commit theft with the purchaser,
^and afterwards suffer amputation for both
thefts, in that case, according to the two
disciples, the purchaser is entitled to the
difference of relative value of the slave at
the time of sale, and after the commission of
the second theft. According to Haneefa on
the other hind, the purchaser is not entitled
to return him, unless the seller should of his
own accord consent to receive him ; but he
is entitled to a compensation for the fourth
of his value ; and if the seller should himself
agree to receive him, in that case he must
restore to the purchaser three fourths of his
price ; because the hand of a man is esteemed
equal to half his person -% and as, in this case,
the hand is forfeited for the commission of
two thefts, it follows that a deduction of one
quarter ought to be made on account of .the
theft committed whilst in the possession of
the purchaser.
Case of a slave, after being three sold,
suffering amputation for a theft committed
with the first seller. — IF a slave, having been
severally sold, and delivered to three diffe-
rent person, should then suffer amputation
for a theft which he had committed whilst In
266
SALE.
[VOL. II.
the possession of the first seller, and of which
the different purchasers were not apprised at
the period of concluding their respective con-
tracts,—in that case, according to Haneefa,
the last purchaser has a right to return him
for a full retribution of the price to the
person from whom he bought him ; and he
again is entitled to return him, on the same
condition, to the person from whom he
bought him ; and in this manner the return
may be made throught the different grada-
tion! of purchasers to their immediate sellers,
until at length the slave be returned to the
seller in whose hands he committed the theft ;
— in the same manner as in a case of claim
of right ; for the existence of a cause of
amputation is (according to Haneefa) equi-
valent to a claim of right, as was before
explained. According to the two disciples,
on the other hand, the last purchaser is
entitled to a compensation from the imme-
diate seller ; but he again is not entitled to
any compensation from his immediate seller ;
in the same manner as in a case of defect ;
for the existence of a cause of amputation is
(according to them) equivalent to a defect, as
was before explained* — (It is to be observed
that the mention of the purchaser being
ignorant of the theft committed by the slave
Is insisted on in the two preceding examples,
on account of the particular tenets of the
two disciples ; for as in their opinion, the
existence of a cause of mutilation is equiva-
lent to a defect, it follows that if the pur-
chaser had previous knowledge of the exist-
ence of such cause, he would appear to have
acquiesced in the defect, and consequently
have relinquished any right to a compen-
sation. As Haneefa, on the contrary, holds
the existence of a cause of mutilation to be
equivalent to a claim of right ; and as the
knowledge or ignorance of this circumstance
makes no difference with respect to the pur- (
chaser, it follows that such specification, with
regard to his tenets, is perfectly immaterial )
Wh«re the purchaser grants the seller an
exemption from defects, he cannot afterwards
return the article, whatever the defects in it
may be — IF a person should sell a slave,
stipulating an exemption to himself of all
responsibility for his defects, as if he should
say, "I have sold this slave with all his
defects," — in that case, if the purchaser
acquiesce in such condition, and exempt him
from any responsibility, he is not afterwards
permitted to return him to the seller on
account of any defect, notwithstanding the
condition of the seller may have be^n gene-
ral, this is, without specifying the particular
names of the defects from the responsibility
of which he exempted himself — Shafei is of
opinion that such exemption is not valid,
unless that name of every defect to which it
refers be specified ; — for it is a rule, with
him, that exemption from undefined claims
is invalid : because exemption has some of
the properties of investiture (whence it is
that it may be rejected), and inves iture of
an undefined nature is invalid, The argu-
ment of our doctors is that the grant of such
exemption is in fact a voluntery surrender
of one's own right, the uncertainty with
respect to which can be no cause of conten-
tion, since delivery is not requisite. It is to
be observed that Aboo Yoosaf is of opinion
that the exemption, in this cate, includes all
defects actually existing at the time of sale,
and also all which may happen in the in-
terval between that and their delivery.
Mohammpd and ZifTer, on the contrary, are
of opinion that the defect which may happen
in the interval ought not to be included
The argument of Aboo Yoosaf is that the
probable object of such surrender on the part
of the purchaser is to render the sale bind-
ing and conclusive, which would not be the
ca^e unless the defects that may happen i'i
the interval between the sale and the seisin
were also included,
CHAPTER V.
OF INVALID, NULL, AND* ABOMINABLE SALES.
A SALE is INVALID where it is lawful with
respect of its ESSENCE but not with respect
of its QUALITY, and HULL, where the subject
is not of an appreciable nature ; and the
terms INVALID and NULL, are often indis-
criminatclv used. — An ABOMINABLE sale is
such as is lawful both in its ESSENCE and
QUALITY, but attended with somecircum-
sttance of ABOMINATION.
Distinctions between a null and an invalid
sale — A SALE in exchange for carrion, blood,
or the person of a freeman, is null, because
none of these cases bears the characteristic of
sale (namely, an exchange of property for
property), since these articles do not consi-
tute property with any person. A sale in
exchange for wine or pork (on the other
hand) is merely invalid ; because the charac-
teristic of sale does exist in these instances,
as these articles are considered as property
with some descriptions of peop'c, such as
Christians and Jews : but they do not con-
stitute property with Mussulmans, and a
contract comprehending these articles is
therefore invali i.
*The word in the original is Makrooh,
which the translator (following its literal
and common acceptation) has rendered abo-
minable. The term, however, in this work,
is not to be understood in the ill sense in
which it is generally employed in the Eng-
lish language ; the cases to which it relates
being such as are in every respect legal, but
which being attended with circumstances of
impropriety, an abstinence from them is
recommended. '
BOOK XVI.— CHAP V.]
SALE
267
Phe property purchased under a null sale
is merely a trust in the purchaser's hands. —
IN a sale that is null, the purchaser is not
empowered to perform any act with respect
to the subject of the sale, but it remains as a
trust in his hands, according to some of our
modern doctors ; because, as the contract of
sale, in such an instance, is totally disre-
garded, there remains only the seisin of the
purchaser with the consent of the seller:
and accordingly, if the article were to perish
in the purchaser's hands, in this instance,
he is not responsible for it. Others are of
opinion that the subject of the sale, in this
case, is not a deposit, but that the purchaser
is not responsible for it (in other words. If it
perish in the pur:haser's hands, he is answer-
able) ; — because the article is as much in his
possession, in this instance, as an article
detained in a person's hands with an inten-
tion of purchase, and for which he is respon-
sible. Some allege that Heneefa is of the
first opinion, and the two disciples of the
second The reasons of this difference of
doctrine will be explained in treating of the
decease of an Am-Walid or Moclabbir, in the
hands of a purchaser.
But that purchased under an invalid sole
becomes his property. — IN a case of invalid
sale, the purchaser becomes proprietor of the
article uoon taking possession of it ; and is
responsible for it [if it be lost in his hands].
. Shafei is of a different opinion, as will be
hereafter explained.
THE s»ale of carrion, blood, or the, person
of a freeman, is null, in the same manner as
a sale in return for those articles as null ;
because as those articles do not constitute
property, they are unsaleable"
A sale of forbidden things, if far money, is
null ; but it in the way of barter, is invalid —
A SALE of wine or pork, if in return for
money, is null ; and if in return for any other
article (as cloth, for instance), it is invalid, — *
whence it is that the seller of pork or wine,
for cloth, becomes the proprietor of such
cloth, although the actual pork or wine clo
not become the property of the purchaser
The distinction in thess cases is, that wine
and pork are held by Ztrnmees to be pro-
perty, where Mussulmans consider them as
articles from which no use can be derived,
because the LAW has commanded the con-
tempt of th?m, and prohibited all regard to
them among Mussulmns. Now, a Mus?ul
man's purchasing either of these for specie
implies a regard to them, because it is not
money (which constitutes the price) that is
the obiect of the sale, as it is merely the in-
strument of acquiring the object : for in fact
it is only the wine or pork that is the object ;
and as these articles are not appreciable with
respect to Mussulmans, it follows that the
sale of them is null. It is otherwise if a
Mussulman purchase cloth for pork or wine,
because that can admit of no other construc-
tion than that he regards the cloth as the
object of the transaction, considering the
pork or the wine only as the means of attain-
ing such object, and not (as in the other case)
as the object itself. The specification of the
pork or wine, therefore, is regarded merely
that* the purchaser may become the pro-
prietor of the cloth, and not in order that the
seller miy become proprietor of the wine or
pork ; an I hence the mention of those articles
is invalid, and the payment of the price of
the cloth, and not the delivery of the flesh f r
iiquor, is incumbent on the purchaser (and
so aho, where a person sells wine or pork for
cloth) ;— for, as cloth is a saleable article,
the cloth must, in this instance, be consi-
dered as the subject of the sale ; for which
reason this is an invalid and not a null sale ;
becuase where, in a contract of saK*, the sub-
ject on both siilei consists of something else
than money, either may with equal pro-
priety He considered as the subject of the
sa'e (This species of sale is termed a Beeya
Mnnkaveza, or baiter.)
The sal f of a Modabbir, an Am-\Valid, or
a Malta tib is null. — THE sale of an Am-
Walid, a Macfabbir, or Mokatib, is null ; —
because an Am-Walid has a claim to free-
dom, as the Prophet has said, "Her child
hath set her free" (that is, her child is a
cause of freedom to her) ;- -and the cause of
freedom, with respect to a Mod«»bbir, is not
established upon the decease of his owner,
but must he considered as actually extant in
him at present, as the owner is incapable
of emmcipating him after his decease ; —
and a Mokatib, on the other hand, is pos-
se^sed of his own person as a right estab-
lished in him, and binding upon his owner,
insomuch that the owner cannot of himself
break or infr nc;e upon it : — if, therefore, the
sale of any of these were valid, that which is
established in them would be rendered null ;
— hence the sale of them is null. —Respecting
a case wrier? a Mok'itib himself acquiesces in
being sold, the.re are two opinions recorded,
According to the Zahir Rawavet, the sale in
such case is valid. It is to be observed that
by a Modablvr is here meant such as is ab-
solutely so, and not one whose condition of
freedom is restricted to the non- recovery of
his master from the illness under which he
laboured at the time of granting the tadbeer.
And the purchaser is not responsible if
they die in his hands. — IF, after the sale of
an Am-Wal-d or MoJabbir, and the seisin
of the purjhaser, one or other should die, in
this case, according to Haneefa, the purchaser
is not responsible,* According to the two
disciples he is responsible for the value
(and there is one tradition which reports that
Haneefa coincides with them on this point).
— The reasoning of the two disciples is, that
as the purchaser took possession of the Mo-
clabbir or Am-Walid in virtue of a sale, he
is therefore responsible for the loss ; in the
same manner as for the loss of any other
property after purchase and seisin ; — for this t
• That is, the loss is considered as falling,
upon the seller, and not upoa thj pj reins er
268
SALE
268
reason, that an Am-Walid or Modabbir may
be included* in a contract of sale : whence
it is that aay article united with them in a
contract of sale becomes the actual properly
of the purchaser. It is otherwiser with re-
responsible for the loss of him, because,
being possessed of his own person, the
purchaser's seisin of him is not fully es-
tablished ; and the responsibility attaches
in virtue of the seisin. The argument of,
Haneefa is, that actual sale cannot operate
with respect to what is not in reality a fit
subject of it: and as a Modabbir or Am-Walid
re not in reality fit subjects of sale, they
are therefore considered in the same light
with a Mokatib. In reply to what the two
disciples urge it may be observed, that an
Am-Walid or Modabbir are not included in
a sale for the sake of their persons, but only
in order that the effect of sale may be estab-
lished with respect to such articles as may
have been united with them in the contract ;
in the same manner as where property of
the purchaser happens to be involved in the
contract; — in other words, if a person pur-
chase two salves by one contract, and one of
those slaves happens to be his property, such
slave is nevertheless included in the con-
tract,— not indeed for the sake of his person,
but merely in order that the effect of the sale
may extend to the other slave, who is united
with him in it.
The sale is null of fish in the water.— THE
sale of fish which is not yet caught is null
as it is not in the state property ; — In the
same manner also, the sale of a fish which
the vender may have caught and afterwards
thrown into a large fountain from which it
cannot be taken without difficulty, is null,
because there the delivery is impracticable,
(It is lawful, however, in case the fountain
be so small as to admit its being caught with
ease,) — If fish should of themselves come
into a fouhtain without the proprietor's
having taken any means, by the erection of
a dam, or a like, to prevent their egress,
they are not considered as property, and the
sale of them is therefore null
Or of a bird in the air, — THE sale of a
bird in the air, or of one which after having
been caught is again set at liberty, is null ;
because in the one case it is not property,
and in other the delivery is rendered
impracticable.
Or of a foetus in the womb (or its off-
spring),—THE sale of a foetus in the womb,
or of the offspring of that foetus, is null ;
because the Prophet has, prohibited it ; and
also, because there is a probability of fraud,
from there being a want of certainty in the
case.
Or of milk in the udder.— THE sale of
milk in the udder is null : because there is
a possibility of fraud, in the udder's being
•That is, "may be joined with other
articles."
perhaps void of milk, and full of wind; or
because there might arise a contention with
respect to the mode of extracting the milk :
or because it might happen that the udder
contained more milk at the time of extract-
ing it than at the time of sale; and hence
there migh be implicated in the sile some-
thing not properly the subject of it.
Or of their (or wool) upon an animal. —
THE sale of wool or hair growing upon an
animal is null ; because, whilst joined to the
animal, it is considered as a constituent part
of it ; and also, because it cannot be exactly
cut away from the animal, without either
leaving a part of it or taking away part of
the skin, since it is not practicable to pull it
out. It is, moreover, recorded in the Nakl
Saheeh, that "the Prophet prohibited the
sale of wool upon the anim.il. of milk in the
udder, and of butter in themilk,]1* It is
recorded of Aboo Yoosaf, that he admitted
the legality of the sale of growing wool ; but
to this the above tradition is an answer.
The bale is invalid of any article which
cannot be separated from its situat.on with-
out injury. — IT is, not lawful | to sell a piece
ef wood sustaining a weight, such as a pillar
or a beam, although the piece of wood he
specified and determinate Neither is it
lawful to sell a yard from a piece of cloth
which is sewsd. whether the parties specify
that the yard shall be cut off from it or
not ; because in this case a delivery with-
out injury is impracticable. It is otherwise
where a person agrees to sell ten drams (for
instance) from an ingot of silver of these
may be cut off from the ingot without injury
to it. It is to be observed, however, that if
the seller, before the dissolution of the
contract, should cut off the yard of cloth, or
pull away and separate the piece of wood,
the sale in that case becomes complete, since
the cause of its invalidity is removed.
Or of which the quality or existence cannot
oe ascertained. — IT is otherwise with respect
to the sale of the kernels of dates, because
that continue null, although the stones be
afterwards opened and the kernels taken
out ; since (contrary to the case of the yard
of cloth, or the piece of wood) the existence
of them wis originally uncsitain
IT is not lawful for a game-catcher to sell
"what he may catch at one pull of his net :"
because the subject of the s.ile is uncertain ;
and also because the purchaser may be de-
ceived, as it is possible that none may be
caught.
Or the quantity of which can only be
judged of by conjecture. — IT is not lawful to
sell dates growing upon a tree in exchange
for dates which have been plucked, and
which are computed, from conjecture to be
* That is, before it has been extracted by
churning.
t By the phrase "it is not lawful," is here
(and in the following examples) to be under-
stood, "it is invalid."
BOOK XIV.— CHAP. V.]
SALE.
269
equal in point of measurement to those that
are upon the tree. This species of sale is
termed Mozabinat .* and has been prohibited
by the Prophet, as well as the sale termed
Mohakila, wjiich is the sale of wheat in the
ear, in exchange for a like quantity of wheat
by coajecture. The law is the same with
respect to the sale of grapes on the vine in
exchange for raisins Shafei holds these
sales to be lawful, provided they be not
extended to a quantity exceeding five
\Vusks; f because, although the Prophet has
prohibited a sale by Mozabinat, yet he has
permitted what is termed Oraya: which he
explains tp be a sale of dates upon a tree,
provided the quantity be less than five
Wusks, in exchange for a quantity which
have been plucked, and which are similar, in
point of measur^nunt, according to compu-
tation. Our doctors on the other hand,
explain Oraya in its literal sense to mean a
gift: and th3 nature of Jit is this. A person
makes a gift of the dates of his orchard to
another, who thereupon comes and enters
the orchard. This gives Jisgust to the pso-
prietor, as his family reside in the orchard :
but being, at the same time, unwilling to
violate his agreement, he prohibits the other
from entering into the orchard, and gives
him a quantity of dates which have been
pulled in exchange for those which were
growing in the orchard. Thi* is the proper
interpretation of the traditional saying of
the Prophet, quoted by Shafei ; and this
mode [-of sale, which is termed Moojar, is
valid in the opinion of our doctors. It is
not, however, in reality a sale, because the
right of property had not vested in the
donee, on account of his not having made
seisin of the dates, and therefore the dry
dates which were afterwards given to him is
considered as a new gift.
Or where the bargain is determined by the
purchaser touching the goods, & c.— IT is noj
lawful to sell goods by the way of Molamisa,
Monazibee, or Alka Hidgir ; — that is, the
touch of the goods, the throwing of the
goods ; or the casting of a stone : — as where,
for instance, a person having exhibited his
goods to another, and specified the price, the
parties agree between themselves that the
contract shall be binding either on the pur-
chaser's touching the goods, or the seller's
throwing them towards him, or the pur-
chaser's casting a stone at them. These
modes of sale were common in the days of
ignorance ; but were inhibited by the Pro-
phet.
The sale is invalid t of grass upon a com-
mon*— IT is not lawful to sell grass growing
on a common, because it is not the property
of the seller : for it is declared in,. the tradi-
• Properly, a sale without weight of
measure.
t Wusk literallv means a camel's burthen,
which is c cmputed to be sixty saas.
tions that "in grass all men are alike
sharers" — (that is, it is common to all).
Neither is it lawful to let it out on lease;
because, as it is not permitted to farm any-
thing, where the object is the destruction of
it, even though it be the property of the
lessor, it is consequently in a superior degree
unlawful to let in lease an article of which
the property is common to all, where the
object of the lesses is the destruction of it.*
Or of bees (unless in a hive, or with the
comb) — THE sale of bees is not lawful
according to the two Elders. Mohammed is
of opinion that it is lawful, provided the
bees be in a place of *custody,f and not
wild :J and such is also the opinion of
Shafei ; because a bee is an animal yielding
good ; and as we are permitted by the LAW to
enjoy the c:ood which that creature yields, it
follows that the sale of the animal is per-
mitted. The reasoning of the two Elders
is that, the animal being of an offensive
nature, the sale of it is therefore unlawful,
in the same manner as in the case of wasps,
Besides, the good is derived from its pro-
duce, not from its substance, whence no
advantage can be derived from it until the
honey be produced, If, however the comb
be sold, with the honey in it, and the bees,
the sale of the bees is in this case lawful, as
a dependent. Koorokhee is also of this
opinion.
Or of silk -worms — IT is not 1 .wful to sell
silk worms, according to Haneefa, as they
are animals of an offensive nature Aboo
Yoosaf thinks that if the silk have appeared
they may than lawfully be sold, as a depen-
dant. Mohammed is of opinion that the sale
of them is lawful in any case, as being an
animal whence an advantage is derived.
Haneefa is of opinion, also, that ihe sale of
their eggs is unlawful. The two disciples,
on the contrary, are of opinion that such sale
is lawful of necessity.
* The object of a lease is usufruct, or (in
the language of the Mussulman lawyers) a
destruction rf the produce of the thing, but
not of the thing itself : thus if a person
snould take a lease of a piece of ground, or a
fruit tree, he would be entitled to appro-
priate to himself the produce of the ground,
whether grain or grass, or the fruit that
might grow upon the tree ; but he would
have no right to use the ground or the tree
(the immediate subjects of the lease) so as to
occasion any destruction of their substance,
Hence proceeds the illegality of a lease of a
field of grass, of grain of the fruit of a tree
or the like ; for the lease m any of these
cases would be entirely useless, since the
lessee, being entitled only to the use of the
produce of the subject of the lease, would
not be entitled to the use of any of these
which are themselves the immediate subject*,
of the lease.
t Such as a hive, or bee-house.
t Literall, "not in the air."
270
SALE
[VoL
H.
Thesa\e of tame pigeons is valid.— THE
sale of pigeons, of which the number is ascer-
tained, and the delivery practicable is law-
ful, as in such circumstances they constitute
*r°*The**le of an absconded slave is invalid
(unless he be in the hands of the purchaser}.
—IT is not lawful to sell an absconded slave,
because the Prophet has prohibited this;
and also, because the delivery is ^practi-
cable. If, however, the purchaser should
declare that "the fugitive is in his posses-
sion/1 the sale is lawful, because the obstacle
on which the prohibition is founded is in this
case removed,— It is to be observed that it
the purchtser, in this instance, should nave
declared, before witnesses, that " he had
taken possession of this slave with intent to
restore him to his owner," he is not held, on
the conclusion of the contract, to become
seised of him in virtue thereof; because the
former seisin, being in the nature of a trust,
cannot stand in the room of that made on
account of purchase. If, on the other hand,
he should have made no such declaration, in
that case he is held to be seised of the slave.
in virtue of the sale, immediately on the
conclusion of the contract; because the
former seisin, being in the nature of an
usurpation, may therefore stand in the* room
of a seisin for sale ; for both are the same in
effect, as they both equally induce responsi-
bility. If the slave should have eloped to
some other person, and the purchaser say to
the proprietor, "sell me your slave who has
run away to such an one," and the seller
accordingly agree, the sale is in that ca<e
also unlawful, because of the impiactica-
bility of the deliverv.
Although the seller should afterwards re-
cover and deliver him to the purchaser.'— IF
a person, having sold a fugitive slave, should
after the sale recover him, and deliver ht-n
to the purchaser, the sale is nevertheless
unlawful, because it was originally null, in
the same manner as if it had related to a
bird in the air. It is recorded, as an opinion
of Haneefa, that the sale in this case is valid,
provided it was not undone previous to the
delivery, because it was founded on pro-
perty, and there was no bar to its effect
except the impracticability of the deliverv,
which is removed by the recovery of the
slave (and such is also related as the opinion
of Mohammed) ;— in the same manner as if
a slave, after having been sold, should run
away previous to the seisin of the purchaser,
in which case, if the seller should afterwards
recover him, and deliver him to the pur-
chaser, the sale fs binding, provided it was
not dissolved in the interval.
The sale is invalid of a woman's milk,—
THE sale of a woman's milk is unlawful
although it be in a vesssl. Shafei is ot
opinion that if it be in a vessel the sale of it
i« lawful, because it is a pure beverage. The
argument of our doctors is that, as being
part of a human creature, it ought to be
respected ; and the exposure of it to sale is
n act of disrespect. In the Zahir-Rawayet
here is a distinction between the milk of a
emale slave and a free woman, It is re-
ated, as an opinion of A boo Yoosaf, that the
ale of the milk of a female slave is lawful,
Because the sale of the slave herself is laws
ul. The answer to this is that the sale of
he female is legal, because of the bondage,
which is a qualitv of her person ; but such
quality does not relate to the milk ; the one
>einq alive, and the other dead.
Or the bristles of a hog. — The sale of the
>ristles of a hog is unlawful, because the
animal is essentially 61th, and because the
exposure of this article to sale is a degree of
respect, which is reprobated and forbidden,
"t is lawful, however, *o app!y it to use,
ruch as stitching leather, for instance, in the
room of a needle, as this is warranted by
necessity.
OBJECTION — Tt would appear that the sale
of it i<« warranted from necessity, in the same
manner as the use of it.
REPLY. — There is no necessity for the sale
of it, since any quantity of i* mav ke had
gratuitously and without purchase. — It is
to be observed that hoas1 bristles falling
into a little water* renders it impure, ac-
rHim* to A^oo Yoosaf — Mohammed is of a
different opinion, because the legality of the
use of the artirle in question is (accord ini?
to him) an argument of its purity Aboo
Yoosaf, on the other hand, arrties that the
legality of the use of it is founded on
necessity, and not od its purity ; and there
exists no necessity in the case of its falling
into water.
Or human hair. — THE sale of human hair
is unlawful, in tne same manner as is the
uce of it • because, being a part of tlv human
becly, it is necessary to preserve it from the
disprace to which an exposure of it to sale
necessarily subjects it. It is moreo\er re-
corded, in the Hadees Shnreef. trnt " God
Henotmcen* a curse upon a \Vasila and a
Moostwa^ila."— (The first of these is a
woman whose employment it is to unite* the
shorn hair of one woman to the head of
another, to make her hair appear lonq : and
the second means the woman to whose head
«5ttch hair is united.) Besides, as it has been
allowed to women to increase* their locks by
means of the wool of a camel, it may thence
b? inferred that the use of human hair is
unlawful.
Or nndresied hides. — THE sale of the hides
of animals is not lawful until they be
dressed, because the use of them, until
then, is prohibited in the traditions of -the
Prophet. It is lawful, however, to sell
dressed hides
But animal substances of all descriptions
(excepting v those of men or hoes) may be
either sold or converted to use — It is per-
mitted either to sell or apply to use the
•By a little water (say the commentators)
*is here meant such a quantity as may be
contained in a cup or other vessel.
BOOK XVI —CHAP. V]
SALE.
271
bones, sinews, wool, horns, or hair, of all
animals which are dead, excepting thnse of
men and hogs. The reason of this is that
these articles are pure, and are not con-
sidered as carrion, besides, death does not
affect them as it doss the anim\l, as these
articles are not possessed of life —-it is to be
observed that Mohammed considering an
elephant as essential filth, like a hog, holds
the sale of it be unlawful : — but the two
disciples, considering it in the nature of a
wild animal, re?ard the sale of it, or of the
bones of it, as lawful
Aright cannot bi sold, unless it involve
property — IP in a house, -of which the
upper and under apartments belong to
different persois, the whole, or th? inper
storey only, should fall down, in that case
the proprietor of the upper storey is not per-
mitted to sell his riv>ht (namely, the right of
buildinq another uopsr storey), because this,
as being only a right, is not property.
OBJECTION — It would h*nce appear that
the sale of a right to water* (that is, of a
share in water used in tiliv? •) is not lawful.
as it is not the seller's property, but merely
his right : whereas such a sale is allowed, if
made along with the land, according to all
authorities ; a ^d according to one tra Jition
(which has been adopted bv the Sheikhs of
Balkh) the sale of the right to water by
itself is I awful.
REPLY.— THE sale of a right to water is
valid, because the term Shirb means a share
in water : and that is an existent article, and
in the nature of property ;— whence ^ it is
that if a person, in a case where t is enjoyed
by rotation, should destroy it during the
term of his right- he is responsible for the
value of it ;— and also, that, when it is sold
along with the ground, a part of the price is
opposed to the right to water
Anything may be sold which admits of a
praise ascertainment : but n?t otherwise.
— -tr a person bestov or sell a roadf
it is lawful : but neither the sale nor the
gift of a vater-course is valid. These cases
admit of two suppositions. — 1 The sale may
be of the absolute right to the road or water-
course, without defining the length or
breadth of either.— II. ft mny be of the
right of passmg upon the road, or receiving
the benefit of the wa'er. J— Upon the first
supposition, the difference between the two
cases is that the road is certain and ascer-
tained, because the known breadth of it is
equal to that of a door- way ;— but in the
case of a water-course there is an un-
•Arab. Shirb.— This term properly signi-
fies draw-wells dug for the purpose of water-
ing lands, and the right to the use of which
is transferable, in the same manner as any
other property.
fBy a road is here meant a lane or
narrow passage leading into a street or high-
^Literally, causing the water to run (by
opening sluice; or so forth).
certainty because it is not known how much
ground the water covers. — Upon the second
supposition, there are two traditions with
respect to a sale of a right of passage on the
road : — according to one tradition the sale
is lawful ; and according to another it is
invalid :— The difference between the sale of
a right of passage on the road and a right
of benefit from the water (as inferred from
the first tradition), is that a right of passage
is a point which a-imits of being precisely
ascertained, as it is connected with a knojvn
object, nam-ly, the road ; whereas the right
of benefit from the water is of a natuie
which cannot admit of beinj precisely ascer-
tained,—and this, whether the water be
conveyed in a trough supported upon a
woo len frame, or in a trench cut in the
ground.
A deception with respect to the sex inuali-
dates the sale in slaves, but not in brutes. — IP
a person sell a slave as a female, who after-
wards proves to be a male, in trul cabe the
sale is utterly null— It is otherwise where a
person sells a go it (for instance) as a male,
anJ it afterward* proves to be a female ; for
in that case the contract of sale is complete :
the purchaser, however, has the option of
keening the ani tidl, or rejecting it. The
difference between these two cases is founded
on this general rule,— that wherever denomi-
nation and pointed reference are united, by
the seller pointing to the subject of the sale,
and mentioning its name (as if a person
should say, "I have sold this goat, for in-
stance),—in this case, if the article refered
to prove essentially different from what was
mentioned, the sale is supposed to relate to
the article ruined ; and therefore if the
article referred to prove of a different species
from what was named, the sale is miil.— If,
on the other hand, the article referred to
prove of the same species with the artcle
named, but of a different quality, in this
case the sale relates to the article referred
to ; and where the article referred to is
found, the sale is complete : the purchaser,
however, has in this instance an opuon, be-
cause of the quality mentioned not existing
in the article ;— as where, for instance, a
person sells a slave as a baker, and he proves
to be a scribe -Now it is to be observed that
a male and a female slave are not of the
same, but of two different sexes, which is
accounted, in this instance, as acquwalent to
being of different species, because of their
different uses ; whereas in goats .the object
for purchase (namely, to eat their »«•»)."
the same, with respect both to the male and
the female, and therefore.they are not held to
be of two different species,-It is proper to
remark, in this place, that, amongst lawyers,
the unity or difference of the objecr and
not the unity or difference of *£•«««*•
determines the unity or difference < of the
species. Thus vinegar of the grape is heW-
to be of a different species from the sweet
seller fora sum short of
272
SALE.
[VOL II.
the original price, be/or* payment of that
price, is invalid* — Ir a person purchase a
female slave for a thousand dirms, stipulat-
ing either a future or immediate payment
and having taken possession of her, should
sell her to the person from whom he had pur-
chased her, for five hundred dirms, previoui
to his haying made payment of the thousand
dirms, this second sale is invalid. Shafei is
of opinion that as the right of property in the
slavt had vested in the purchaser; because of
his having taken possession of her, such sale,
on the part of the purchaser to the seller, is
valid, in the same manner as it would have
been valid to any other person, — or as it
would have been valid to the seller in case
the second price had been equal to or greater
than the first, — or in case it had been in
exchange for other goods, although these
should have been of a less value. — The
arguments of our doctors are, — FIRST, a
tradition that Ayeesha, having heard of a
woman who, having purchased a female
slave from Zeyd Bin Rakim for eight hun-
dred dirms, had afterwards sold her to the
said Zeyd for six hundred dirms spoke to
her thus : "This purchase and sale on your
part is bad ; inform Zeyd, that certainly
GOD will render null his pilgrimages and
enterprises achieved along with the Prophet
unless he repent of such conduct." — SECOND-
LY, if the sale in question be valid, it fol-
lows that the first seller remains indebted to
the purchaser for five hundred DIRMS, and
the purchaser to him for one thousand DIRMS.
Now if their account should be balanced,
and five hundred dirms be struck off from
the debt of the purchaser, in liquidation of
his claim upon the seller, there remains five
hundred due by the purchaser, for which he
has received no return, and this is unlawful.
It is otherwise where the seller, in the
second sale, gives the purchaser goods in
return ; because there the difference is not
obvious ; being apparent only with respect
or articles of the same kind.
But the contract is not invalid with respect
to any other subjects which may be joined to
the original in the re-sale. — IF a person,
having purchased a female slave for five
hundred DIRMS, and taken possession of her
should afterwards, before he had discharged
he price, sell her, in conjunction with an-
other, for five hundred DIRMS to the person
from whom he had purchased her, in that
case the sale is valid with reap ;ct to the
female slave whom he had not formerly pur-
chased from that person, but null with re-
spect to the other. The . reason of this is
that, as a part of the price is necessarily op-
posed to the new slave, it follows that he
purchases a slave, and sells her again to the
same person for a less price than he had pur-
chased her for, which is not lawful, as has
been already shown. — No such reason of
illegality, however, existing with regard to
the" sale of the other slave, it it therefore
valid, in a price proportioned to her value.
OBJECTION.— It would appear that the aale !
of the other slave is also invalid, because
the person has sold both by one contract,
and as the sale of the one is invalid, it would
follow that the sale of the other is also in-
valid (according to the tenets ofHaneefa),
in the same manner as where a freeman and
a slave are sold by one contract, the sale of
the slave being in that case invaiid as well
as that of the freeman
REPLY. — The sale of the other slave is
valid ; and the invalidity of sale with re-
spect to one does not affect the sale of the
other ; because the invalidity, in this in
stance, is weak, as there is a difference of
opinion regarding it amongst our doctors ;
and also, because it is founded on a suspicion
of usury, the effect of which suspicion cannot
extend beyond the subject of suspicion,
namely, the first slave.
The stipulation of specific tare invali-
dates A sale. — IF a person purchase oil, on
this condition, that it be weighed with the
vessel in which it is contained, and that a
deduction of fifty ratls shall be made on
account of the weight of the vessel, such
sale is not valid ; whereas, if the condition
be in general terms, thrt "a deduction shall
be made for the weight of the vessel," it is
valid ; — because the former condition is not
essential to the contract, whereas the letter
is essential.
Case of dispute concerning the tare of a
vessel which contained the commodity. — IP a
person, having purchased oil in a leathern
bag, should carry it away with him, and
afterwards return a bag the seller weigh-
ing ten salts, and the seller assert that "this
is not the bag he had carried away with him.
as that only weighed five RATLS ;" In this
case the averment of the purchaser is to be
credited, whether the question of disagree-
ment be considered as relating to tbe bag
being different, — or to the consequent dif-
ference it creates with respect to the quantity
of*' oil ; because, if the difference be con-
sidered as relating to the indentity of the bag
of which the purchaser had taken possession,
his assertion must be credited, since the
word of the possessor is to b« credited,
whether he be responsible for the article (as
in the case of an usurper) or merely a con-
fident (as in the case of a trustee) ;— or if, on
the other hand, the difference be considered
as relating to the quantity of oil this re-
solves itself into a difference with respect to
the amount of the price, the seller claming
more, and the purchaser acknowledging less :
the purchaser is therefore th; defendant ;
and the assertion of a defendant, upon oath,
must be credited.
A Mussulman may commission a Christian
to sell or purchase unlawful articles on his
account ; and such sale or purchase, made by
the agent, is valid. — IP a Mussulman desire a
Christian either to purchase or sell wine or
a hog on his account, and the Christian act
accordingly, in that case (according to
Haneefa) such sale or purchase is valid :
but an order of a Mussulman to this effect
BOOK XVI.— CHAP. V.]
SALE
273
being in the highest degree abominable, he
is therefore enjoined (where it respects the
sale of those articles) to devote the price
obtained for them to the poor —The two
disciples maintain that the purchase or sale
of wine or a hog by a Christian, on account
of a Mussulman, is invalid (and the same)
difference of opinion also obtains which re-
spect to the case of a Mohrim appointing an
agent for the sale of the game he may have
caught, when it became unlawful for him to
make such sale) . The argument of the two
disciples is that the constituent, as not
having himself the p->\ver of selling or pur-
chasing these articles, cannot of conse-
quence invest others with such power ; be-
sides, as all the acts of an agent revert to
the constituent on whose behalf they are
performed, it is therefore the same as if the
Mussulman were himself to scl! or purchase
these articles, which would be illegal. The
argument ot H-ineefa is that the contractor
(th»t is, the purchaser or the seller) is, in
this insta ice, no other than the a<?ent ; for
this reason, that he is fully empowered to
perform these acts : the reverting, more-
over, of the' property to the constituent is a
necessary and unavoidable effect, and there-
fore is not prevented by his Islam :— in the
same manner as the articles in question may
descend to a Mussulman by inheritance (in
other words, if a Christian, whose heir is a
Mussulman, should himself embrao* fhe
religion of Islam, and afterwards die, before
releasing his hog, or converting his liquor
into vinegar, in that case they would descend
to his Mussulman heir). It is to be obstrvtcl,
however, that although Haneefa. admits the
validity of the purchase of these articles by
a Christian agent, on behalf of a Mussulman,
still he holds it incumbent on the Mu^sul-
man to convert the liquor into vinegar, and
to set free the hog.
A sale is rendered invalid fry the insertion
of any condition advantageous to either
party, or repugnant to the requisites of the
contract ; or which may occasion contention,
by involving an advantage to the subject of
the sale — IP a person sell a male slave, on
condition that the purchaser shall emanci-
pate him, or make him a Mudabbir, or a
Mokatib ; or if a person sHl a female slave,
on condition that the purchaser shall make
her an Am-Walid, such sale is invalid ;
because this is sale suspended on a condi-
tion : and such sales are condemned by the
Prophet. The rule, in this particular, is
founded on a tenet of our doctors, that the
insertion of any condition which is a neces-
sary result of the contract (such as where
the seller bargains that "the purchaser shall
become proprietor of the article sold"), can
no away effect the validity of the contract,
since that would be established independent
of any stipulation; and, on the other hand,
that the insertion of any condition which is
; not a necessary result of the contract, and
ia vl.ich there is an advantage either to the
S \-jcr or the seller, or to the subject of the
sale, of capable of enjoying an advantage
(such as where the seller bargains that "the
purchaser shall emancipate the slave he sells
to him"), renders the contract invalid ; be-
cau^e an additional and extraneous act is,
in this instance, required from the purchaser,
without stipulating a recompence to him*
and which of consequence is of an usurious
nature •. and also' because as there is an ad-
vantage in this condition to the subject of die
sale, who is capable of claiming it, it follows
that a contention must necessarily ensue
and hence the object of sale (namely, the
prevention of srife) is frustrated. Condi-
tions of this nature are therefore unlawful,
excepting where custom and precedent pre-
vail over analogy ; as where a person pur-
chases unsewed shoes on condition of the
seller's sewing, or causing them to be sewed
for him. The insertion, on the, other hand,
of any conJition which is not a necessary
result of the contract, and which, moreover,
is not attended with advantage to any par-
ticular person, docs not invalidate th* con-
tract. An ex A nnplc of this occurs where a
person sells an animal, on condition that
"the purchaser shall sell it again ;" which
condition is lawful, because there is no par-
ticular person whose right it is to claim the
performance of it (since the animal is in-
capable of sp doing), and hence neither
usury nor strife can attend such a stipula-
tion. Now, having explained the tenets of
our doctors, it is proper to remark that the
conditions recited in the cases in question
are repugnant to the nature of the contract,
as they tend to deprive the purchaser of
every right to which the sale entitles him ;
and they also involve an advantage to the
subject of the sale, who is capable of
claiming it : they therefore invalidate the
contract. Shafei dissents from our doctors,
as he holds the sale of a slave, on condition
of his emancipation, to be valid.
But such sale recovers its validity , by the
purchaser performing the condition with the
ai tide purchased. — Ira person should eman-
cipate a slave whom he had purchased on
that condition, then the sale, which, because
of such condition, was previously illegal, be-
comes valid, according to- Haneefa ; and the
purchaser is responsible to the seller for the
price. The two disciples are of opinion
that the emancipation does not render the
sale valid ; and that therefore the payment
of the value, and not of the price, is incum-
bent on the purchaser ; because, as the sale
was originally invalid, in consequence of the
condition, it cannot • afterwards be rendered
valid by means of the emancipating, any
more than by the purchaser's murdering or
selling the slave. The reasoning of Haneefa
is, that although the condition of emanci-
pating the slave be not, in itself, agree-
able to the requisites of a contract of sale
(as was before explained), still it is so in
effect ; because it completes the right of
property on the part of the purchaser ; an*«
a thing becomes established and confirmed
18
274
SALE.
[VOL. IT.
by its completion ; whence it is that the
emancipation of a purchased slave is no bar
to a right of compensation from the seller
in case of a defect,
Sale is rendered invalid, by a reservation
of. any advantage to the seller from the
article sold. — IP a person sell a slave, on
condition that "he shall serve him for the
space of two months after the sale ;" or a
house, on condition that "he shall reside in
it for the space of two months after the sale ;"
or if a person sell any other article, on con-
dition of the purchaser's lending him a
dirm (for instance), or making him some
present, the sale so suspended on any of
these conditions in invalid :— FIRST, because
these conditions are not agreeable to the
^nature of a sale, and are attended with an
advantage to the seller. SECONDLY, because
the Prophet has prohibited a sale on condi-
tion of a loan : and, THIRDLY, because, if
any diminution be made in the price, on
account of the sevices of the slave, or the
residence in the house, it follows that a con-
tract of rent is interwoven in that of sale or
if on the other hand, no diminution be made
in the price on these accounts, if follows
that a deed of loan is interwoven in the
sale ; and both of these are illegal.
Or, by the stipulation of a delay in the
delivery of it.— IF a person sell goods on
condition of his being permitted to suspend
the delivery for a month, the sale is in such
case invalid, because a suspension with
respect to the delivery of goods which are
extant and specific is an unlawful condition.
The reason of this is that a suspension in
point of time has been ordained by the LAW,
merely for the purpose of ease, and is there-
fore only appli cab' e to a debt, in order that
the debtor may have time to collect the sum
within the prescribed period and pay it
accordingly ; but with respect to a thing
actually extant (such as cloth, for in tanc ),
there can be no occasion for such suspend ,n.
Or, by the insertion of an invalid condi-
tion.—THE sale of a pregnant slave, with a
reservation of the foetus in her womb, is
invalid ; because it is a general rule that
nothing, the sale of which by itself is illegal.
can be' made an exception to a contract of
sale ; and of this nature is a foetus. The
sale, therefore, is invalid, because of the
invalidity of the condition. It is to be
observed that a contract of Kit a bat, of hire
or of pawnage, are the same with a contract
of sale, in this respect; that an invalid con-
dition is a means of invalidating the deed.
In the case of Kitabat, however, the invalid
condition must actually exist in the deed ;
as when a person enters into covenant with
his slave to emancipate him on condition of
his giving him wine, or a hog. • It is also to
be observed that in the cases of gift, alms,
.marriage, Khoola, and composition for wiiful
murder, the* exception of the foetus • does not
invalidate the deed ; on the contrary, the
deed 'takes place in full ; but the condition is
invalids In the same manner, an exception
of the foetus does not invalidate a legacy,
for in this case the exception is a valid con-
dition.
Or of a condition which implicates the sub-
ject of amther contract. — IF a person purchase
cloth, on condition that the seller sew it into
the form of a vest on his account, the sale is
in such case , invalid ; since this condition,
besides being attended with an advantage to
the purchaser, is nob a requisite of the con-
tract of sale. Moreover this necessarily
supposes the implication of terms of two
different contracts ; that is, either of sale
and loan, or of sale and hire.
IF a porsou purchase one shoo from another
on condition that the seller prepare a fellow
to it on his account, — or purchase a pair of
shoos on condition of tho seller making straps
to thorn, for the purposn of tying thorn, tho
salo in oithor easo is invalid. — (Tho compiler
of tho Hodaya remarks that this is according
to analogy ; for a trio re favourable const ruc-
tion would surest that suoii salo is lawful,
on account of its being customary amongst
men).
Or by a stipulation of the payment of the
pnYe, at a period not precisely 'known to both
parties. — IF a person should purchase a.n
article, and stipulate tho payment of the
price on tho day of the now year, or
on the Mihrjan,* or on the fast of the
Christians, t or tho day of breaking lent
amongst the Jews, tho salo, under such
conditions, is invalid, provided both parties
be not informed with certainty . respecting
those periods. Tho salo, however, is lawful,
if theso poriods bo ascertained within tho
knowledge of both parties.
Or the date of the occurrence of which is
uncertain. — A SALE is not valid whore tho
price is stipulated to bo paid on tho return
of tho pilgrims, or, on tho rut-ting of tho
grain, or on tho gathering of tho grapos, or
bii tho shearing of tho shoop, — bocause in
uono of those case.** is tho period absolutely
determinate: contrary to tho ant of giving
bail; for tho giving of bail, unt'l, any ofthoao
poriods, is lawful ; because a small dogree of
uncertainty does not invalidate a bail-bond,
in the same manner as it doos a contract of
salo.
But it is valid where the time of payment
is fixed by a- subsequent agreement. — IF, how-
ever, a salo be made in an abs >lut6 manner,
and the seller afterwards aqree to repeivethe
price at any of the periods in question, it is
lawful, because, this stipulation not being
included in the contract of sale, it becomes a
stipulation with regard to payment of DEBT
(not tho price), which admits of a snaaildegree
of uncertainty.
A sale, invdtin in consequence of stipulating
an uncertain time of payment, recovers its
* This is also termed Mirhkan. A festival
observed by the anoienti Persians on the day
of the autumnal equinox.
BOOK XVI —CHAP. V.]
SALE.
275
v-ilidity by removal of the uncertainty. —
IF a sale be -nade, stipulating payment o' the
price at any of the periods above stated, and
afterwards the purchaser and seller jointly,
or the purchaser alone, remove the obstacle
of uncertainty.* price to the actual occurrence
of the period stipulated the sale then be-
comes valid. Ziffer maintains that, the sale
being originally invalid, the subsequent
remDval of the obstacle cannot render it
valid ; in the same manner as a marriage
originally contracted for a fixed period would
not become valid by rendering it perpetual.
The argument of our doctors is, that the
invalidity of the sale, in this cate, is merely
because of the apprehension of the litigant n.
to which the uncertainty may give rise ; and
of course, when this uncertainty is removed,
the sale remains valid. Moreover, as the
uncertainty, in this case, relates only to an
accidental circumstance, that is, to the period
when the price is to be pai.l, and not to the
price itself, which is one of the essentials of
sale, the uncertainty is capable of being
removed. It is otherwise where a person
sells one dirm for two dirms, and afterwards
relinquishes the additional dirm ; for the
sale does not in consequence of such relin-
quishment become valid, since the invalidity
related to the price itself, which is an essential
of the sale. It is also otherwise in a cast of
marriage for^ a particular period, because
this, in fact, is not a marriage, but a separate
deed called Matat ; and by no subsequent
acts can one deed be transmitted into another
deed.
The sale of a saleable with an unsaleable
subject is invalid. — IF a person expose to sile
a freeman and a slave, and sell them both in
one contract, — or, in the same manner, sell
a carrion goat.f and one that has been slain
by the prescribed from of Zibby,— such sale
according to Haneefa, is utterly invalid with
respect both to the freeman and the slave, as
in the first case, and the carrion, and slain
goat' (as in the second ;— and this; whether
the seller have opposed a specific price to
each or not (the two disciples are of opinion
that if a specific price be opposed to each,
the sale is valid with respect to the slave, or
the slain goat).
But if the unsaleab'e subject be property,
the sale holds go~>d with respect to the saleable
subject. T-Ir, on the contrary, a person unite
iasale, an absolute slave and a Modabbir, or
a slave that is his property, and another that
is not, the sale is in either case lawful, with
respecUo the absolute slave, or the slave
which if his absolute property, in return for
a proportion from the whole price stipulated.
TJbis is, according to our doctors (namely.
•By paying the price, or fixing the time of
payment to some specific period, ' iuch as
forty days for instance.
f Meaning any dead goat, not slain accord-
ing td'LAV.
Haneefa and the two disciples). — Ziffer is of
opinion that the sale is not lawful in either
case, with respect to either subject. The two
lis^iples argue, that where a specific price
s opposed to each particulsr subject, the
invalidity of the sale extends only to that
subject which contains a cause of invalidity
namely, the freeman or tht carrion) but
does not reach to the other subjects (namely.
the slave or tht slain goat) ; —in the sain;
manner as where a person marries a strang-'
woman and hit own sister by one contract,
in which case the marriage is valid with
respect to the stranger, although it be invalid
with respect to his tister, — for that invalidity
does not extend to the stranger ;— and so
also in the case in question, It is otherwise
where the price of each particular subject
ha* not been specified ; for in that case the
invalidity extend* to the whole. Haneefa
argues that there is a material difference
bclArrn the two cases ; — namely, the case of
jominu in sale a freeman with a slave, and
that of joining a Modabbir with a slave ;
because a freeman, as not being property, is
utterly irvapable of being included in a
contract of sale ; and as the comprehension
of him in the sale necessarily establishes the
condition of the acceptance of the sale with
respect to him, it fo {Tow's that the sale is
invalid, because of the .invalidity of 'the
condition : contrary to marriage, as that is
not rendered invalid by an invalid condition.
The sale, on the other hand, of a slave the
property of another, or of aMakatib, Modtb-
bir, or Am-Wahd, is merely suspended for.
these may be included in a contract of sale,
as they are property. — whence it is that t{i«
sale of them may be carried into execution,
in the case of the stranger's slave, by the
consent of the proprietor, — in the case of a
Mokatib by his own consent,— and in the
£ase of a Modabbir or Am-Walid (in the
opinion of the Elders) by a decree of the
Kazee to this effect ;~but ,as it is to sup-
posed that the proprietor of the slave, on
account of his right to the subject of the sale,
and the Mokatib, Modabbir, or Arn-Walid,
because of the claims established in their
persons, will repel the sale, the sale therefore
is executed only with relation to the absolute
slave ; in the same manner as where a person
purchases two slaves, of whom one dies
previous to the purchaser taking possession
of them ; in which case the sale holds good
with respect to the other.
Section
Of tl\e Laws of Invalid Sales.
In an invalid salt, the purchaser is respon-
sible, not for the price, but for the value, of
the article, in case of its perishing in hip
hands t where he has taken possession of it
by content of the seller.— WHEREVER the
purchaser, in an invalid sale, takes posses-
sion of the jgoods,,with tht content of the seller
then, provided both the goods, and {he, price
276
SALE.
[VOL n.
be property,* the purchaser becomes pro-
prietor of the article sold, and remains
responsible, not for the price, but for the
value of the goods, in case they be destroyed
in his possession. Shafei maintains that the
purchaser does not become proprietor, al-
though he take possession of the article,
because an invalid sale is forbidden, and
therefore cannot substantiate a right of
property ; besides, anything which is for-
bidden is not sanctioned by the LAW, since
prohibition is repugnant to ordinance ; an
invalid sale, therefore, is in no respect
sanctioned by the LAW (whence it is that
the purchaser of goods does not become pro-
prietor before seisin) ; and the case is con-
sequently the same as if a person should
sell something in exchange for carrion, or
should sell wine in exchange for money.
Our doctors, on the other hand, argue that,
in this case, the essential of sale (namely,
an exchange of property for property), exists
The subject of the sale, moreover, is property,
and is therefore a fit subject. The buyer
and seller also are both competent to the
act '• — and where all these circumstances
exist, the sale is duly contracted. Besides,
the prohibition is no way repugnant to the
legality of the sale itself because the pro-
hibition relates only to an accessary circum-
stance, namely an invalid condition ; the
right of property, therefore, after seisin,
accrues to the pu-chaser in virtue of thi sale
itself « which is legal, and not in virtue of
any matter which is prohibited, or contrary
to the LAW. The purchaser, moreover, does
not become proprietor of the goods before
seisin, for two reasons : — FIRST, because, al-
though an invalid sale be a cause of right of
property, yet it is a weak cause, and there-
fore stands in need of the aid of seisin to
give it effect ; SECONDLY, because, if the
purchaser become proprietor previous to
the seisin, it would necessarily follow that a
sanction is given by LAW to the invalidity,
whereas it is incumbent to remove the in-
validity. With respect to the cases of a sale
of any thing in exchange for carrion, or of
wine in exchange for money, th.5 essentials of
sale do not exist in either of these, as has been
already demonstrated. It is established as
a condition, in this instance, that the seis n be
made with the consent of the SELLER : it is
sufficient, however (according to a favour-
able construction of the LAW), if this consent
be by implication ; as if the purchaser should
make the seisin in -the place of sale, and in
presence of the seller. The reason for a
favourable contruction of the law, in this
particular, is, that as the seller, by the con-
tract of sale, virtually empowers the purchaser
to make seisin, and as the purchaser does so
in his presence, without his making any
objection thereto, it is therefore construed to
bave been made with his consent : in the
•That is, be of such a nature as to con-
stitute property.
same manner as the seisin of a gifr, in the
place where the deed of gift is executed, is
valid according to a favourable construction
of the law. It is also a condition, that both
the goods and the riturn be property, in order
that an exchange of property for property
(which is one of the pillars of sale) be estab-
lished : for if this were not the case, the
sale would be null, in the same manner as a
sale in return for carrion, blood, the person
of a freeman, air. or the like ; and hence if
in these crises, the purchaser should take
p issession of the goods with the consent of
the seller still he is not responsible for
them.
And the value must be paid in money, or
in a similar according to the nature of the
article. — With respect to what was stated,
that the seller "remains responsible, not for
the price, but for the value" of the gpoJs/1
it relates only to sic'i goodb as are of a nature
to be compensated for by money ; for with
respect to such as ere compensate by simi-
lars, the purchaser, is responsible for a simi-
lar ; because that which is a similar both in
appearance and in effect is a more equitable
compensation than that which is similar in
effect only.
Either party may annul the contract be-
for seisin..— -!N an invalid sale, either of
the parties, previous to the seisin, haj the
power of annulling the contract, in order
that the invalidity of it may be removed,
The law is also the same after seisin, pro
vided the invalidity exist in the bovly of the
contract If, however, the invalidity be
occasioned by the addition of an invalid
condition, the person stipulating the con-
dition is allowed to annul it, but not the
other party.
A purchaser un-ler an inualid sale may
vA\dly s>ll the article, in wh.ch case his
right of annulling the sale exfitrcs.—lF the
* purchaser, in an invalid sale, take posses-
sion of the article, and then sell it, in that
case the second sale is valid,~as the first pur-
chaser, having become proprietor in virtue of
seisin, is fully competent to sell the article ;
and, upon his so doing, the right of return-
ing the article to the first seller expires :-—
FIRST. Beciuse the right of the individual
(namely, the second purchaser) is connected
with the second sale ; an * the annulment of
the first sale, in consequence of its invalidity
is on account of the right of Goo* but the
right of the individual has preference to the
right of GOD, as the individual is neces-
sitous, whereas GOD is not so ; SECONDLY.
Because the first sale is legal in its essence,
but invalid in its quality,— whereas the
second sale is legal in point of both ; and it
follows that the latter cannot be obstructed in
its operation by the former ; and, THIRDLY,
because the second sale is made with the
virtual assent of the first seller, as the power
to that effect was by him bestowed on the
*In other words,— the right of the LAW.
BODK XVI -CHAP. V,]
SALE.
277
first purchaser. It is otherwise where the
purchaser of a house, in which there is a
right of Shaffa. sells it to another ; for there
the person entitled to the right of Shaffa has
nevertheless just title to it ; because it ii
the right of the individual, in the same
manner as that of the second purchaser ; is
equal to it in point of legality ; and has not
been forfeited by any power given by him to
the purchaser to make the sale.
The purchaser of a lawfu artice in return
for one which is unlawful, m<iy after posses-
sion dispose cf it a$ he sees Jit ; remaining
responsible only for the value — IP a person
purchase ind take possession of a slave, in
exchange for wine, or a hog, and afterwards
either emancipate him, sell him, or bestow
him in gift, all of these acts are valid,
because of the purchaser, in virtue of the
seism, having become proprietor ; and he
is responsible to the seller for thevilue of
the slave In the case of emincipation, as
the property immediately ceases, the slave
becomes (as it were) destroyed, and hence
proceeds the responsibility of the purchaser
for the value. In the case of sale or gift,
the responsibility arises from the right of
returning him to the seller being annulled
in consequence of these deeds, as has been
already explained. It is to be observed that
pawna^e, or the making a slave a Mokatib,
is equivalent to sale, and therefore annuls
the right of return to the seller. The re-
demption of the pledge, however, or the
inability of the Mokatib to perform his
covenant, restores the right, because the
bar to its operation is removed.
The seller cannot resume the article until
he return the purchase -money ; and \f the
seller die. the purchaser is entitled to set up
the article to sale, to indemnify himself for
th? pier he Ina* paid. — IN an invalid sale,
the seller is not allowed to resume the goods
from the purchase, until he shall have first
restored the purchase-money ; because the
goods, being opposed to the purchase- money,
are retained in the nature of a pledge until
the restitution of it. If the seller should
die then the purchaser has a prior claim to
the subject of sale ; that is, he is permitted
to take piyment of the price from the sale
of the goods, giving the remainder (if there
be any) to the other claimants ; because,
as he has a right in the goods superior to
any other person, during the lifetime of the
seller, he consequently has right preferably
to the seller's heirs or creditors after his
decease ; in the same manner as the holder
of a pawn. It is to be observed, that if the
price was paid in dirms, the purchaser has a
right to exact from the seller the indentical
dirms he paid him ; since the purchase-
money: in the case of an invalid s*le, re-
mains in the hands of the seller in the
nature of an usurpation. If, however, the
identical dirms be not in his possession, then
the purchaser is entitled to an equivalent.
Case of an immoveable property, in which
a change is wrought by a purchaser under an
invalid contract.— I? a person purchase a
house by an invalid sale, and Afterwards
convert it into a mosque, h«* is in that case
responsible, according to Haneefi, for the
value of house. This is also related by
Abop Yoosaf, in the Jama Sagheer, as the
opinion of Ha nee fa ; *but he afterwards
entertained doubts respecting it. Tne two
disciples maintain that the house must be
restored to its original state, and th-n re-
turned to the seller. The same difference
of opinion obtains, it the purchaser should
plane trees in the court-yard of the house.
The argument of the two disciples is that
the right of the neighbour* is of weaker
consideration than the r git of the seller
(whence it is that the right of a neighbour
requires to be supported by decree of the
Ka*e.», and a!-o, that it becomes null, by
any delay in the demand of it, — neither of
which is the case with respect to a seller's
right) ; and as the right of the neighbour,
which is the weaker right, woul I not be
annulled by the conversion of the house into
a mosque, it follows that the right of the
seller, wh'ch is the stronger, is not thereby
annulled a fortiori. The argument of Haneefa
is, that the act of building or planting pro-
ceeds on an idea of perpetual possession ;
that the puichascr in so doing acts in virtue
of a power to that effect which he holds
from the seller ; and that therefore the same
has no right to the restitution, in the same
manner as in the case of its being reaold
by the purchaser. It is otherwise with tne
right of a neighbour, a* he does not give
power to the purchaser to build or plant
on the place over which his right extends ;
whence it is that if the purchaser had either
bestowed it in a gift, or sold it, his right to
neighbourhood would nevertheless still have
remained in force. Aboo Yoosaf, whore-
ported what is here advanced as the opinion •
of Haneefa on this subject, afterwards diss
trusted his memory, as has been already ob-
served. Mohammed, however, in treating
ofShaffa,t expressly infers the difference of
opinion here recited ;— for, he says, "whert
a purchaser, under an invalid sale, builds
upon the ground he has purchase , the
neighbour has no right of Shaffa therein,
according to the two disciples, any more
than previous to the purchase." Now as
Haneefa, on the other hand, has maintaine-i
that in such case the neighbour is entitled
to take the place, npon paying the value,
in virtue of his right of Shaffa, it clearly
follows that in his opinion the right of the
seller is annulled ; because it is on this cir-
cumstance that he founds his opinion of the
existence of the right of Shaffa, since, *o
long as the right of the seller remains in
force, that of the neighbour cannot take
place ;— whereas, according to the two dis-
•Arab. Shaffee; meaning the person en-
titled to the right of pre-emption in virtue
of Shaffa.
f In the Mabfoot.
278
SALE
[VOL. II
ciplea, the right of the seller is not destroyed
by the building of the purchaser, and there-
fore the claim of Shaffa does not take place.
The profit acquired by the purchaser, upon
a definite, article, purchased under an invalid
contract, must be bestowed in charity.— IF a
person purchase a female slave (for instance)
by an invalid contract, and take possession
ot her, and the seller take possession of the
purchase-money, and the purchaser then dis-
pose of her, by sale, to another person at a
profit, it is in that case incumbent on him
[the purchaser] to bestow in charity the profit
so acquired :-r-but if the first seller should
have acquired a profit upon, or by means of,
the purchase-money, he is not required to
bestow such profit in charity. The reason of
this distinction is that as the female sUve'
(for instance) is a definite article, the second
contract of sale relates identically to her,
and the profit acquired by the safe of her is
accordingly base. — Dirms and deenars, on
the other hand, are not definite in valid con-
tracts ; and as the second contract is of a
valid nature, it consequently does not relate
to them identically, and accordingly the
profit acquired by them is not case. This
distinction however, obtain* only where the
baseness is founded on the invalidity of the
right ; for where it is founded on the abso-
lute non-existence of right of property.
And so also, profit acquired upon any
article in which na right of property exists.—
(As where, for instance, a usurper acquires
a profit upon the property he has usurped),—
there is no difference whatever ;— that is,
from whichever subject the profit is obtained,
it is unlawful and must be bestowed in
charity;* because, where a person sells an
article, the identical property of another
(such as any article of household goods), the
contract of sale relates to that actual article,
and the profit acquired by it is accordingly
unlawful ; where, on the other hand, a per-
son purchases a thing with money belonging
to another, although the contract do not relate
to that actual money (since, if other money
were given instead of it, the contract never-
theless, holds good), still, however, there is a
semblance of the contract r,eIaUng to that
particular money ; for if he were to give that
actual money to the seller, the article pur-
chased in return would remain appropriated
to him) : or if, on. the contrary, he were only
to point to that money, and then give other
money instead of it, the amount of the price
of the article is, virtually, in that money ;—
for this reason, therefore, there is a semblance
of <th« contract relating to that money, and
consequently. that the profit is acquired by
means ,of the .property ,.of .another peiton.
fc u the baseness occasioned Jby an m-
- an explanation of the principle on
which this proeMfis, see Partnership, where
it it declared that "pWit caTinot1 be it*.
fully acquired upon a Pf{?per ty concerning
which there is no responsibility.
validity of right is of less moment than thit
occasioned by the absplute non-existence of
right, it follows that the baseness occasioned
by the invaldity in the right of property
occasions a semblance of haseness in any-
thing in which the absolute non-existence of
right occasions actual baseness (and that is
anything of a definite nature, such as a slave
girl, for instance, as in the cas«,in question) ;
— and, on the other hand ; that it occasions
an apprehension of a semblance of baseness
in anything in which the absolute non-exist-
ence of right occasions only a semblance if
baseness ; — and regard is had to a semblance
of baseness, but not to an apprehcns on of a
semblance. — It is to be observed that if a per-
son claim a debt from another of a thousand
tlirms, and obtain payment of* the same, and
both parties afterwards agree that the debt
was not due, — in that case the profit which
the claimant may in the meantime have at -
quired by possession of the money is lawful to
him ; because the baseness, 'in this instance,
is occasioned by invalidity of right : for this
reason that the debt had been owing in con-
sequence of the demand of the claimant, and
the defendant's acknowledgment of it ; and
it afterwards appears that this debt is not
th'e right of the claimant, hut of the other
(namely, the defendant) : still 'however, the
thousand dirms which the claimant took in
satisfaction for his demand have becorrife his
property, as the satisfaction for a claim be-
comes the property of the claimant, although
it be under an invalid right : — and as the
baseness, in this instance, is occasioned by
the mere invalidity of right of property, and
not by the absolute non existence of that
right, it consequently cannot operate, nor
have any effect with respect to a thing of an
indefinite nature, such as money, for instance.
Section.
Of Sales and Purchases which are Abomi-
nable.
It is abominable to enhance the price of
merchandise by a fictitious tender of a high
price. — THE Prophet has prohibited the prac-
tice of Najish, — that is, the enhancement of
the price of goods, by making a tender for
them, without any intention to' purchase
them, but merely to incite others to the offer
of a higher price The Prophet has also pro-
hibl'ed the purchase of a thing which has
already been bargained for by another ; but
this prohibition supposes that bpth parties
had before come to a mutual agreement ; for
otherwise there is no impropriety in such
subsequent purchase.
Or, to anticipate or fo*Matt'the market. —
TrtE PROPHET has also* prohibited an antici-
pation of the market, — as where people meet
the caravan, at a" distance from the city, with
a view of1 purchasing the grain brought by
the merchants, in order to sell it to 'the people
of the city • at an enhanced price'. This pro-
hibition, however, proceeds 'on a supposition
that the forestallers deceive the merchants
with respect to the price of grato in the city ;
BOOK XVI.-CHAP. V,]
SALE
279
for otherwise there is no impropriety in this
practice.
Or to enhance the price of griin. in towns,
by a citieen stlling fcr the farmer. —THE
PROPHET has also prooibted a citizen from
selling for a countryman ; as where, for in
stance, a countryman brings crain or other
goods into a city, and one of the citizens
takes care of it, and acts as his agent, in
order that he may sell it at a high price to
the people of the city. Some have given a
different explanation of this prohibition, by
supposing it- 'to allude to a citizens selling
anything at a high price to a countryman :
but in the Fattahal Kadeer of Moojtibba the
former is mentioned as the most authentic
explanation, It is to be ob erved, however,
that this prohibition supposes that a scarcity
of grain prevails in the city, as otherwise
such conduct is not improper
Or to buy or stl on a Friday — Ir is abo-
minable to buy or sell on a Friday,* after
the crier proclaims the hour of prayer, be-
cause GOD has said, in the Koran, "WHEN
YE ARE CALLED TO PRAYER, ON THE DAY OF
THE ASSEMBLY, HASTEN TO THE COMMFMO
RATION OF GOD. AND LEAVE MERCHANDIS-
ING." Moreover, if at such time purchase
and sale were allowed, an absolute duty
(namely, attendance at prayers) would
necessarily be omitted. It is to be observed,
however, that although ruch purchases and
sales be abominab'c, still they are not in-
valid ; for the invalidity, in such instances,
exists with respect merely to points that are
extraneous and ad itional, and not with re-
spect to the essentials of the contract nor
with respect t.> the establishment of \my con-
dition essential to its Obligation.
Merchandise may be set un for sale to the
highest bidder,— A SALE to the highest bidder
is not abo'ninable. Thus, if a merchant, for
instance, having shown his wares to a pur-»
chase, should receive from him a tender for
them but, before he had expressed h's ac-
quiescence, shoulJ receive a higher tender
from another, in that case it is not abomin-
able in him to sell them to the latter ; be
cause the Prophet sold 3 cup and a sheet to a
higher bidder ; and also, because sales of this
kind are for the interest of the poor.
, 1 1 is abominable to separate two infant
slaves (or an infcnt and an uciuU), related
within the prohibited degrees, by a sale of
one of thefn. — IT is abominable for a person
possessing two infant slaves, related to each
other within the prohibited degrees, to sepa-
rate them from each other ; and the rule is1
the same where one of them is an infant and
the other an adult. This decision is founded
on a declaration of the Prophet, " Whosoever
causes a separation between a mother and
her children, shall himself, oh the day of
judgment, be separated from his friends by
GOD." It is, moreover, related that the
Prophet gave two infant brothers to Alee,
Friday is the Mussulman Sabbath.
and afterwards inquired of Alee concerning
them, and being answered by him, that "he
ead sold one of them/' the Prophet then said
'take heed 1 take heed !" and repeatedly
enjoined him to take him back. Besides,
one infant naturally conceives an attachment
o another, and an aduld person participates
n the sorrow of an infant, and hence the
separation of turn in either ca^e argues a
want of tei dern:ss to a child, which has been
reprobated n the traditions, where it is de-
clared, ''Whosotver cocs not show tender-
ness to a CHILD, ami respect to an ELDER, is
not of may people/' A separation, therefore,
either between two infants, or between an
idultandan infant, is prohib'ted. It it to
pe observed that the cause of the prohibition,
in this instance, is affinity with n such a
degree only as prohibits n arriage between
tne slaves in question, and not genera affi-
nity, fur which reason any distant relation,
such as a step-mother, or one prohibited by
fosterage, or by affinity with the fosterer, are
not included; nor the son of the uncle ; nor
any one that is not within the prohibited de-
grees Neither are a husband and a wife
included in this prohibition, notwithstanding
they be both infants, and they may conss-
quently be sep-irated, because the tradition
which contains the prohi >ition, as being con
trary to analogy, must therefore be observed
in its literal sense; that is, it must be applied
to such only a> are within the prohibited de-
grees. Moreover, in the aforetsaid tradition,
both relation are required to be the property
of one master : if, therefore, one infant brq-
ther belong to Zjyd, and another iniant
brother to Omar, each is at liberty to sell hi*
respective property.
Unless in the pursuance of an iniispensahle
duty, or in cases of unavoidable necessity. —
It is allowed, likewise, to esparate two in-
fant slaves reU ted to each other, if with a
view to fulfil an incumbent duty, as where
one of the two co.nmits a crime, and is given
up, as a compensation for such crime, to the
avenger of the offence. In the same manner,
also, one of the two may be sold, for the pay-
ment of a debt incurred by him in the course
of purchase and sale, in consequence of his
being a privileged slave,— or, by the destruc-
tion of the property of another, — in either of
which cases that slave may bt sold alone, in
discharge of the debt, although this induce a
separation, So also, it is lawfut to return
one of the two to the seller of them, in case
he should prove defective. The adjudication,
in all these cases, proceeds on this principle,
that the object of the Prophet in this prohi-
bition was to prevent an injury to the infanta
without detriment to the proprietor ; 'an ob-
ject which, if the prohibition were extended
to these cases, must necessarily be 'defeated.
But such sale is nertheless valid. —I? is
to be observed, however, that if a person
separate one infant from another, or ah in-
fant from an adult, by selling one of them*,
-such sale invalid-: yet still the act of sepa-
ration is abominable* It is recorded, from
280
SALE
[VoL. II-
Aboo Yoosaf, that a sale of this nature is
invalid only where the relation of patrcrnity
(such as mother and son, for instance) exists
between the parties ; but that in all other
cases it is valid. Another report, from Aboo
Yoosaf, mentions that sales of this nature
are invalid in all cases where the separation
is abominable, because of the tradition al-
ready mentioned with respect to Alee ; for
the Prophet positively enjoined him to take
back the salve he had sold, whence it may be
inferred that he considered the sale as in-
valid, since a return of the commodity is not
admitted but in an invalid sale. The reason-
ing of Haneefa and Mohammed is that, in the
case in question, the sale is transacted by a
competent person, and with respect to a fit
subject : it is therefore valid ; and the abo-
mination does not apply to anything except
what is merely a concomitant, or immediate
effect of the sale, namely, the distress occa-
sioned to the two infants, which is a degree
of abomination exactly equivalent to that of
a person purchasing a thing 0over the head of
another, from whence no invalidity arises.
Moreover, the order of the Prophet to Alee to
take back the slave must be construed either
into a dissolution of the sale, or a repurchase
of the slave from the person to whom he had
sold him.
Adult slaves may be separated without
offence. — IT is not abominable to separate
two slaves that are adults, notwithstanding
they be related within the prohibited decrees;
for this case fails not under the ordinance
before mentioned ; and there is an authentic
tradition of the Prophet having occasioned a
separation between Maria and Sireen, two
female slaves that were sisters.
CHAPTER VI
OP AKALA, OR THE DISSOLUTION OF SALES.
^Definition of Akala — AKALA literally
signifies to cancel. — In the language of the
LAW it means the cancelling or disolution of
a sale.
A sale may be dissolved in consideration of
an equivalent to the price. — THE dissolution
of a sale is lawful, provided it be for an equi-
valent to the original price, because the Pro-
phet has said "whosoever makes an AKALA
with one who has repented of his bargain, shall
receive an AKALA of his sins from GOD, on
the day of judgment ;" — and also, because,
as the contract of sale comprehends the
rights of both parties, namely, the buyer
and the seller, they have therefore the power
of dissolving such contract, to answer their
own purposes.
But not for anything greater or less. — IF,
however, either a greater or less sum than
the original price be stipulated as the condi-
tion of the dissolution, such condition is null,
and the dissolution holds good ; and the seller
must return to the purchaser a sum equal to
the original price. — It is a rule with Haneefa,
that a dissolution is a breaking off of the
contract with respect to both the parties,
but a sale de novo with respect to others,
If, therefore, the breaking off be impractic-
able, the dissolution is null.— According to
Aboo Yoosaf, on the other hand, it is a sale
de novo : but if a new sale should from any
cause be impccable, then it must be con-
sidered as a breaking off : and in case of that
also being impracticable, the dissolution then
becomes null. — The opinion of Mohammed is
that it is a breaking off ; and in failure of
this, from impracticability, a sale de novo ;
and in case of that also being impracticable,
it is null.— The argument of Mohammed is
that Akala, in its literal sense, signifies dis-
solution ; and, in its constructive sense, sale
(whence it is a sale de novo with relation "to
all others than the parties) : it i** therefore
regarded as a dissolution or breaking off,
agreeably to the literal meaning of the term ;
or, if the breaking off he impiacticable, it is
regarded as a sale, agreeably to the construc-
tive meaning. — The argument of Aboo Yoosaf
is that Akala means an exchange of property
for propetty with the mutual consent of the
parties, which corresponds with the defini-
tion of sale, and is also subject to the same
rules ; whence it is that, in case c f the loss of
the wares in the possestion of the purchaser
after the conclusion of the Akaia, or dissolu-
tion, it [the Akala] is null ; and also, hat
the sell is allowed so return the wares* to
the purchaser in cafe of their having been
blemised or become defective whilst in the
hands of the purchaser ; and that the right
of Shaffa is also established by it — Haneefa.
on the other hand, argues that Akala means
a dissolution, or breaking off, and cannot, by
any construction of it, supposed to mean
sale, although the breaking off should be im-
practicable ; becaus*- sale and dissolution are
terms of opposite import, which no one word
can be supposed to bear :— if, therefore, the
breaking off be impracticable, the Akala is
null, With regard to its being a sale de
novo, in relation to others, this is a mere
matter of necessity, as to them it exhibits
similar effects wi*h sale : that is to say, ths
seller, in virtue of the Akala, becomes again
proprietor of the wares ; and it is accordingly
a sale with respect to all others than the
seller and purchaser, for this reason, and not
because of the meaning of the word, which
in reality is the opposite of *ale —Such are
the opinions and arguments of our three
doctors with regard to Akala — Hence it
appears that in a stipulation be made, that
the seller shall return to the purchaser a sum
greater than the original price, the dissolu-
tion, agreeably to the tenets of Haneefa,
would hold good to the amount of the origi-
nal price ; because (according to his tenets)
Akala is a dissolution ; and a dissolution
cannot possibly relate to the excess, as there
is no sale which might be opposed to such
excess ; and it is impossible to dissolve what
does not exist :— the condition, therefore, is
invalid, but not the dissolution, as that is
not rendered null by involving an invalid
BOOK XVI.— CHAP. VI].
SALE
281
condition. — It is otherwise with respect to
sale (that is, the sale of one DIRM for two
DIRMS, for instance),— for if a person should
sell one d«rm for two dirms, such sale-jvould
be invalid ; nor could it be construed as ex-
isting with respect to one dirm, and as null
with respect to the additional one, so as to
render such sale lawful ; because the estab-
lishment of an excess in sale is possible, as
that is an establishment to a matter as yet
un established, and it is no way difficult to
establish an unestablished point : but if the
excess dirm were established, it would in-
duce usury : — a sale of this nature, there-
fore, is invalid. — The conclusion therefore is.
that the dissolution in question is valid, but
the condition is otherwise. The law is also
the same where a stipulation of smaller
amount than the original price ts made ; that
is to say, the dissolution holds good, but the
condition is void ; because the sale being
established with regard to the original price,
and the deficiency not then existing, it fol-
lows that the dissolution can apply only to
what does exist, — namely, the original price,
— since it is impossible to dissolve what does
not exist. — If, however, this deficiency be
stipulated on account of a defect which had
taken place in the wares, it is lawful. — In
the opinion of the two disciples, the stipula-
tion of a sum exceeding the original price, in
a dissolution, amounts to a sale . — according
to Aboo Yusaf, because (as has been already
explained) he considers Akala as a sale : —
and also according to Mohammed because,
although he be of opinion that a dissolution
is a breaking off, yet he has said that, in case
of the impracticability of a breaking off, it
must be considered as a sale ; and as the
dissolution in question is of that nature, he
is therefore of opinion it is a sale, — With
respect to a dissolution in which is stipulated
an amount less than the original price Aboo
Yoosaf (proceeding on his general opinion
concerning dissolutions), considers it as a
sale : but in the opinion of Mohammed it is a
dissolution with respect to the whole of the
original price ; because he considers the defi-
ciency to be a silence maintained with respect
to a part of the price ; and as the dissolution
would have been valid if a silence had been
maintained with respect to the whole, so it is
in a superior degree valid when the silence
is mantained only with respect to a part.
A dissolution, stipulating a smaller sum
than the original price, in a case where the
wares have been blemished in the hands of
the purchaser, is considered by Mohammed
as a dissolution ; the deficiency being opposed
to the blemish.
Dissolution, in consideration of an equiva-
lent of a different kind, is a breaking of. —
IF a dissolution be agreed upon, stipulating,
in lieu of the original price, an equivalent of
a different kind, it is a breaking off/ accord-
•And consequently valid, as it completely
nnuls the contract.
ing to Hiineefa, for the original price ; and
the stipulation of a different kind is nuga-
tory. The two disciples consider this dissolu-
tion as a sale, founding their opinion on their
ideas of the natute of dissolution, as already
explained.
The sale of a female slave cannot be an-
nulled after she has borne a child. — IF a
dissolution of sale take place w.th respect
to a female slave who had borne a child
whilst in the possession of the purchaser, it
is null, according to Harieefa, because (agree*
ably to his tenets) a dissolution is a breaking
off ; and the birth of the child is preventive o t
a dissolution, as this is a supervenient addi-
tion of a separate thing ; and such addition
after seisin, prevents a dissolution of the
bargain. — This dissolution, however, is con-
sidered as a sale by the two disciples.
A sale may be dissolved prsviaus fa de-
livery and seisin of the article — THE disso-
lution of a sale previous to taking possession
or the aricle sold, whether of a moveablt or
immoveable description, is a breaking off,
according to Haneefa. According to Aboo
Yoosaf, it is a breaking off with regard to
moveable property only, because a sale of
moveable property, previous to taking posses-
sion of it, is not lawful, and hence a dissolu-
tion with respect to moveable property, pre-
vious to the seisin of it, cannot be con-
sidered as a sale, and is consequently a
breaking off. A dissolution with respect to
immoveable property, on the contrary, pre-
vious to the taking possession of it. is a sale
(according to Aboo Yoosaf), as he holds that
the sale of immoveable property, previous to
the seisin of it. is lawful.
THE loss or destruction of the warea is a
bar to the legality of a dissolution, but not
the destruction of the price ; because a dis-
solution is the breaking off of sale ; and the
breaking off of a sale rests upon the existence
of the sale ; and this again relates to the
wares, not to the price.
Barter may be dissolved, after a destruc-
tion of one of the subject — IN cases of
Mookaycza, or a sale of goods for goods,* a
dissolution agreed upon after the destruction
of one of the two subjects is valid ; because
each of them falls under the description of
the subject of the sale ; and applying this
term, therefore, to the one that remains, it
follows that the dissolution is lawful, because
of the existence of the subject of the sale.
CHAPTER VII.
OF MOORABIHAT, AND TAWLEEAT, THAT IS.
SALES OF PROFIT AND OF FRIENDSHIP.!
Definition of Moorabihat and Tawleeat.
MOORABIHAT, or a sale of profit, means
•That is, barter : — the term by which
Mookayeza will be hereafter always ex-
pressed.
tMoorabihat and Tawleat are technical
terms, which (like many others in this work)
282
SALE
[VOL. II.
the sale of anything for the price at which it
was before purchased by the seller, with the
superaddition of a particular sum by way
of profit. Tawleeat, or a friendly sale, is
where one person sells any thing to another
for the exact price which he himself paid
for it. Both these modes of sale arc lawful ;
because the conditions essential to the vali-
dity of a sale exist in them ; and also, be-
cause mankind stand in need of them. For
example, a man who has himself no skill in
making purchases is necessitated to confide
in a purchase from a person skilled in such
matters ; in other words, he will purchase
the article from this person at the same
rate at which he had purchased it, without
allowing him any profit upon it, as in a sase
of Tawleeat, or friendly sab, — or, he will
purchase it from him at the same rate at
vhich he had purchased it, allowing him an
addition, by way of profit, as in a case of
Moorabihat, or profitable sale ; and this will
leave him satisfied and at ease in his mind ;
since a person destitute of skill is by either
of these modes secured from fraud, whereas,
following any other mode, he would be
exposed to great imposture. Mankind,
therefore, having occasion for both these
modes, they are both permitted : — and as,
in both instances, the purchaser is under a
necessity of placing an abso' e confidence
in the word of the seller, who is skilled in
the business of traffic, it is therefore incum-
bent on the seller to be just and true to his
word and to abstain from fraud, or from
the semblance of fraud. Fraud is where a
person avers that he had purchased a certain
thing for twelve dirms, when, in fact, he
had only paid ten dirms ; and the semblance
of fraud is where a person sells any thing
by a profitable sale stipulating prompt pay-
ment, when, in reality, he had himself pur-
chased the same thing on credit.
They require that the price consist of simi-
lars ; or, if otherwise, that the person who
enters into the agreement with the purchaser
should have obtained possession of the price
do not admit of a literal translation. Neither
is the definition of them, as here given (ac-
cording to the Persian version of the Hedaya)
completed satisfactory. In the Arabic copv,
a Moorabihat is defined to mean *'a transfer,
made by the proprietor, Bunder the original
contract, at the original price, with the addi-
tion of a profit/' — and Tawleeat f 'a transfer,
by the proprietor, under the original con-
tract, at the original price, without an addi-
tion of profit." Hence it would appear that
in a case of Moorabihat, the contract [of
Moorabihat] refers itself merely to the profit
agreed for, and not (as in other sales) to the
whole price to be paid, since that (exclusive
of the profit alone) is determined by the
nature of the contract, without specification ;
and that, in a case of Tawleeat. on the other
hand, the contract [of Tawleeat] refers itself
to the original price, since that is fixed at the
prime cost, from the nature of the contract.
in the interim : but the profit agreed for must
be in money or specific articles of weight, or
measurement of capacity, and must be stivu-
\ated upon the whole price, generally, and
not proportionably upon its parts. — PROFIT-
ABLE and friendly salves are lawful only where
the price of the wares is of the description of
similar such as dirms and deenars, for in-
stance ; because, if the price stipulated be an
article of whioh the unities are not similar
(such as a slave, for example), if follows that
the purchaser becomes proprietor of the
the purchaser becomes proprietor of the
wares for a price of which the value is un-
known, a circumstacce which induces ille-
galitv in a sale. If, however, the purchaser*
should, in the mean time, have acquired pos-
session of the price (as if, for instance, the
price be a slave, and that identical slave be
then the property of the purchaser), in such
case a sale of friendship is lawful ; and also a
sale of profit, — provided the profit be stipu-
lated in money, or in articles estimable by
weight, or measurement of capacity, which
are described and ascertained ; — because the
purchaser is in this case enabled to make
delivery of the thing which he has rendered
obligatory on himself. It Is not lawful, in a
sale of this nature, to stipulate a profit pro-
portionate to part of the price (such as a
profit of one dfrm upon ten, two upon twenty,
and so forth), because the particular value of
the price [the slave] not being ascertained,
this could not be carried into practice : — it is
necessary, therefore, to stipulate a general
profit upon the whole price.
All intervening expenses which enhance the
value of the article may be added la the prime
cost. — IT is lawful for the sellers, f in a pro-
fitable or friendly sale, to add to the capital
sumt the wages of the bleacher, the dyer, or
the figurer (of cloths), the spinner (of cotton
'or wool), or the porter (of wheat, and so
forth) — because it is a custom amongst mer-
chants to add such expenses to the capital
sum ; and also, because whatever is the cause
of an increase either to the substance of the
thing puschased, or to the value of it, is an
addition to the capital : this, moreover, is a
general rule, apdlying to all the articles here
mentioned ; for the dyeing, figuring, or spin-
ning 13 an increase to the substance of the
article ; and the bleaching of linen, or the
porterage of wheat, and so forth, is an
increase to their value because cloths are
rendered more valuable by being bleached
and the price of wheat various in different
places. It is requisite that the seller, in
making or including such addition, should
*Meaning the person who enters into the
Tawleeat or Moorabihat agreement with the
first purchaser.
t Mean ing the party who first purchased
the article, and then agrees to transfer it by
Tawleeat or a Moorabihat. (The terms seller
and purchaser are thus to be understood
throughout this section )
jArab. Ras Mai : meaning (in this place)
the prime cost or original price of the article.
BOOK XVI.— CHAP. VII.]
SALE
say, "this article has c *t me so much/' and
not, "I have purchased this at such a rate/'
because the letter assertion would be false.
It is to be observed that the driving of goats
from city to c ty is equivalent to the por-
terage of wheat : but neither the wag 23 of
the shepherd, nor the rent of the house in
which the wares are kept, is to be included.
as no increase with respect either to the sub-
stance or the value arises from these circum-
stances^: neither are the wages of a teacher
of the KORAN, or the like, to be included.41
because the increase of value obtained by
instruction is acquired through the wisdom
and ability natuiaily existing in the scholar,
which last is the immediate cause of an in-
crease of value : — the charge, thetcfpfe, must
L e placed to the head pt the wisdom, or
i atural ability, which is the immediate
cause and not to the teaching, which is a
remote cause.
In case of an over-statement of the price
the purchaser may undo the barga n. — IF, in
a sale of prjfit, the purchaser should discover
that the seller had practised a fraud in
fctatmg the price of the wares, in such case,
according to Haneefa, the purchaser is at
liberty either to adhere to or undo the
bargain, as he pleasjs.
Or (in Ttmljeat) deduct the excess — AND
in case such fraud should be practised in a
•ale of friendship, t le purchaser is at liberty
to deduct the amount of the fraud from the
price. Aboo Yooaaf is of opinion that a
deduction proportionate to the fraud must
be made in either case ; but that, in the sal *
of friendship the deduction is made irom the
price ; and in a sale of profic, from both the
price and the profit. Mohammed maintains
that in both cases the purchaser has the
option of adhering to or relinquishing the
contract as he pleases : — for he argues that
the mention of the price is to be regarded, as*
that is known; and the mention of friend-
ship or profit, is made with a view to incite
desire, and is therefore to be considered as
the inducement, in the same manner as the
inducement of security against a blemish
or defect : and consequently, if the induce-
ment fail, the purchaser is at liberty with
respect to the contract. The argument of
Aboo Yoosaf is that, in cases where friend*
ship or profit are mentioned, it is an essen-
tial that friendship or profit be established : —
whence it is that the sale in question is con-
cluded, if the seller say to the purchaser, "I
have sold this thing to you, by way of friend-
ship, for its original price/'— or, "I have
sold this thing to you for a profit on its
original price/' provided its original price in
both cases be known and ascertained : Now,
such being the case, it necessarily follows
that a deduction must be made in proportion
to the fraud of the purchaser, in order that
Tawleeat or Moorabihat may be established :
—in a case of Tawleeat the deduction is made
•In the sale of a slave.
from the price ; and in a case of Moorabihat
from the price and the profit. The argument
of Haneefa is that if, in a sale of friendship
no deduction be made for a fraud, the de-
scription of Towleeat ,no longer appertains
to it, s'nce the price, in such a case, must
otherwise exceed the original price and con-
sequently the tr^n faction, which is supposed
a transaction of friendship, would be altered
in its nature ; a deduction is therefore ad-
judged : — if, on the other hand, no deduc-
tion were made in a profitable sale, yet the
sale would still retain its original nature of a
profitable sale, with the difference only of
the extent of it ; for which reason the pur-
chaser is at liberty to abide by or undo th«
contract as he pleases. Hence if, in a pro-
fitable sale, after the purchaser had become
acquainted with the fraud, the wares should
be lost or destroyed m his possession,— or, if
they should have contracted some blemish
preventive of a dissolution of the sale, the
purchaser is responsible, according to all
the most authentic traditions, for the a/hole
price, — since in such a case no proportion
whatever of the original price is opposed to
the option of the purchaser so that he might
deduct such proportion, because of the de-
struction of his option :— as holds in cases of
option of inspection or condition of option.
It is otherwise in cases of option of defect ;
for there the claim which the purchaser has
on the seller relates to a loss with respect to
the wares, arising from a defect ; and a de-
duction is accordingly made from the price
on account of such loss, provided it be not in
the p3wer of the seller in anv other way to
repair such loss arising from defect.
A pro/it be a Mcmabiftit sale cannot be
twice obtained upon the sime article, — IF a
person purchase cloth (for instance), and
afterwards dispose of it to another by Moora-
bihat, and then repurchase it from that other
at the price for which he had originally pur-
chased it, in that case, if he should again
wish to sell it by Moorabihat, it is necessary
that he deduct from the price fixed in the
last sale (calculating that at the rate of price
in the first sale) the sums of the profit he
acquired in the intermediate sale : — but if
after such deduction nothing remains, he is
not allowed to sell it by Moorabihat. This
is according to Haneefa. The two discipL-s
maintain that it is lawful for him to sell it
with an addition of profit grounded on the
last sale. To exemplify this case :— suppose
that a person purchases cloth at ten dirms,
afterwards sells it to another for fifteen
dirms, and again purchases it from that
other for ten dirms , in this case, if he should
wish to resell it by way of profit, he must
fix the price at five dirms, being what in
reality the cloth has cost him, and what he
ought therefore to found a profit upon :—
suppose, on the other hand, that a person
purchases a piece of cloth for ten dirms, and
having sold it to another for twenty dirmi
afterwards repurchases it from that other foi
the original price, namely, ten dirms ; in thi
284
SALE
VOL. II.
case he is not entitled to sell it again with an
addition of profit. The two disciples main-
tain that he is in both cases entitled to*sell
it for a profit on the last price, namely, ten
dirms, and their reasons are, that he repur-
chase is a new contract, and has no connexion
with the effects of the former sale ; and that
therefore a profit may be imposed, founded
on the second contract ; in the same manner
as if the second purchaser should sell it to a
third purchaser, and the first purchaser re-
purchase it from the third one, in which case
it would be lawful for the first purchaser to
sell it at a profit on the last price, and so also
in the case in question. The argument of
Haneefa is, that in the case in question, there
is an apprehension of the first profit being
obtained by means of the second contract,
since until the person repurchased the cloth
there was a .possibility that he might return
it upon the seller's hands in consequence of
a defect, and that his [the seller's] profit
might thereby have been lost, although upon
his repurchasing it from the purchaser, this
possibility vanishes, and the profit remains
confirmed and established. The apprehtn-
sion, however, had existed ; and in Moora-
bihat sales apprehension is regarded as equi-
valent to certainty, out of caution (whence it
is that a profit of this nature is not allowed
upon anything given in composition ; in other
words, if a person be indebted to another to
the amount of ten dirms, for instance, and
he compound the debt with his creditor by a
piece of cloth, it is not lawful for the creditor
to sell this cloth at a profit of this nature
over and above ten dirms, because in the
composition it is to be apprehended that the
value of the cloth was short of ten dirms, as
composition is founded upon remission of a
part). — In the case in question, therefore,
the seller, because of the apprehension above
stated, appears, in consequence of the second
contract, to have purchased five dirms,
together with the cloth, for ten dirms ; he
must therefore deduct five dirms from the
whole and declare that "the cloth has fallen
to him for five dirms ;" and take his profit
upon those five, It is otherwise where the
second purchaser sells the cloth to a third
person, and the first seller then repurchases
it from this person : for in this case the
acquisition of the first profit is confirmed
and established by means of the second pur-
chaser's having sold it into the hands of
another, and not by means of the first seller
repurchasing it from the third person so as
to leave any room for apprehension in this
case also. There is therefore a material
difference between this case,' and the case
under consideration, and consequently it is
evident that the analogy adduced by the two
disciples is unfounded.
Case of Moorabihat transacted by a privi-
leged slave with his owner. — IF a privileged
slave, involved in debt, should purchase a
piece of cloth for ten dirms, and afterwards
sell it to his master for fifteen dirms, and
the master wish to sell the said cloth in the
manner of Moorabihat, he must set his profit
upon ten dirms. In the same manner, if a
master purchase a piece of cloth for ten
dirms, and sell it to his privileged slave for
fffteen dirms, the slave is not entitled to
dispose of it at a profit upon more than ten
dirms. The reason of this is that, in both
cases, there is a semblance of illegality in the
sale ; because the property of the slave being
as it were, the property of his master, it
appears that the master, in the first case,
purchases his own property : and that, in
the second case, he sells his own property to
himself.
Case of Moorabihat transacted between
the manager of a stock and the proprietor. —
IF a person give to another ten dirms, in the
way of Mozaribat, (stipulating that the profit
acquired therefrom shall be equally divided
between them, and the Mozarib, or manager
so constituted, purchase with the said money
a piece of cloth, and then sell it to his con-
stituent for fifteen dirms, and the constituent
afterwards wish to dispose of it by a pro-
fitable sale, he is not allowed to fix the price
at more than twelve and a half dirms. The
reason of this is, that although the purchase
made by the proprietor of a Moorabihat stock
from his manager be, in fact, the purchasing
of his own property with his own property,
yet, such purchase is held to be lawful by our
doctors : because the proprietor of the stock
has no power over it whilst in the hands of
the manager ; and as this power, which is a
desirable object, resulted to him from the
purchase, the said purchase, because of its
being the means of procuring to him an
object of desire, is therefore lawful ; never-
theless, as there is in this case an appearance
of invalidity of sale (since the constituent
did as it were purchase his own property
with his own property, by which means a
mutual exchange of respective property did
not take place), the purchase is therefore
reckoned null so far as regards the half of
the profit ; and accordingly, in the case in
question, the profit must be imposed upon
twelve and a half dirms.
An article may be disposed of by Moo-
rMhat, where a defect has intervened not
proceeding from the sell ei, or where the seller
has used the article, in the interim, without
injury to it. — Ira person purchase a female
slave, and she afterwards, without any
appearance of violence, but merely from a
natural cause, become blind of an eye, — or
if, being a woman * he cohabit with her,
without harm accruing, — it is in either case
lawful for him to dispose of her by Moo-
rabihat, without giving any explanation of
either of these circumstances ; for neither in
consequence of the bjindness or the cohabi-
*Arab. Sayeeba in opposition to a virgin.
The reason for restricting the case to muli-
ebrity, in this instance, is that cohabitation
with a woman Is not considered as a depre-
ciation of her value :— contrary to the case
of deflowering a virgin.
BOOK XVI.— CHAP. VII.]
SALE
285
tat ion does any thing remain to him in oppo-
sition to which a deduction might be made
from the price ; because no part of the price
is opposed to the quality of the article
(whence it is that if the quality be destroyed
previous to seisin by the purchaser, no de-
duction from the price would on that account
be allowed) ; and in the same manner, no
p;»rt of the price is opposed to the use of a
woman's person. It is reported, from Aboo
Yoosaf, that in the first case the shve must
not be disposed of in the manner of Moora-
bihat, without an explanation being given
of the blindness, any more than where blind-
ness occasioned by violence : and this opinion
ha« been adopted be Shafei.
But if the defect be occasioned bvt or com-
pensated to. the seller, n proportionable de-
duction must be made from the price. — IT
to be observed, that if the purchaser himself
had occasioned the blindness, or if it had
been occasioned I y another from whom the
purchaser either had or had not received an
amercement, he is not in either of these
cases entitled to dispose of the slave by
Moorabihat, without giving an explanation
of the blindness ; because here the purchaser
(or another) did with design or intention
destroy the eye ; and it is consequently
repuisite that a proportionable deduction be
made for a defect so occasioned. The same
rule also obtains where a purchaser has
cohabitation with a female slave who is a
virgin ; because virginity, being merely a
t nder membrane, is a constituent part of the
slave, and this the purchaser has destroyed.
It the article be damaged by an accident
not preceding from the seller, still it Is
a proper object of Moorabihat — IF cloth
which a person had purchased be burnt by
fire, or damaged by vermin, in that case it
IF lawful for the purchaser to dispose of it
by Moorabihat without explaining either o£
these circumstances ? but if the cloth be torn
in the folding and opening of it, it is not
lawful for the purchaser thus to dispose of
it without noticing the same to the party,
because the damage, in this case, is occa-
sioned by his own deed.
A misstatement of a prompt payment
instead of a suspended payment, leaves it in
power of the purchaser to undo the- bargain
in a sale either of profit — IF a person,
having purchased a slave (for instance) for
one thousand dirms, payable at a future
period, should afterwards sell him for one
thousand dirms, payable immediately, with
a profit of one hundred dirms without
noticing to the other tbe respite of payment
he himself has obtained,— in that caie the
other, if he should afterwards discover this
circumstance, is at liberty either to abide by
or undo the bargain at his option ; because
the suspension of the payment resembles an
addition to the substance of the wares ; and
hence it is custom amongst merchants, in
granting a respite of payment, to increase
the price of the merchandise. Now a sem-
blance, in a sale by profit, is deemed equi-
valent to reality : and hence it follows that
the said person did, as it were, purchase two
things for one thousand dirms, namely a
slave and a suspension of payment ; and
afterwards sold only one of these things bv
way of profit, grounded on the price which
he paid for both : a fraud /rom which an
abstinence is particularly enjoined in cases
of Moprahihaf—the purchaser, therefore, has
an option of adhering to or undoing the bar-
gain as he pleases, as in the option from
defect. If, however, the purchaser should
destroy the wares, and then receive
notice of the fraud which had been practised
upon him, he is not in such case entitled to
make any deduction on that account from
the price, because no part of the price is in
reality ooposed to the suspension of payment.
Or of friendship — IF a person, having
purchased a slave (for instance) for a
thousand dirms payable at a future period,
should afterwards dispose of him to another,
by a Tawleeat, for a thousand dirms ready
money, without intimating the respite of
payment, in that case the other, on discovery
of this circumstance, is at liberty either
.to abide by or annual the contract, as he
pleases : because an abstinence from a^ fraud
of this nature is equally enjoined in friendly
as in profitable sales.— -If, however, in this
case the purchaser, having destroyed the
slave, should then become acquainted with
the suspension of payment that had been
granted to the seller, it is incumbent on him
to make a prompt payment according to the
agreement ; nor is he entitled to make any
deduction from the price on the scors of
suspension of payment, as before explained.
— It is related, as an opinion of Aboo Yoosaf,
that the purchaser is in this case to pay the
value to the seller, and to receive from him
the whole of the price , in the same manner
as holds (according to him) in a case where
a creditor, having received payment of the
debt due to him in a bad specie, discovers
this circumstance after having expended
them ; — in which case he has a right to return
to the deptor a similar number of the specie
he had received, and to demand from him a
like number of good specie.— Some have said
that an appraisement ought to be made of the
value in the cace of prompt payment, and
also in the case of a distant payment ; and
that the difference should be given by the
seller to the purchaser.— All that has been
here advanced proceeds on a supposition of
the suspension of the payment being included
in the contract of sale ; for if, without such
stipulation, it should happen that the pay-
ment be made at a distant period (as is often
the ca«e amongst merchants), there subsists,
in such case, a difference of opinion upon
this point, whether, under these circum-
stances, in a subsequent sale of profit or of
friendship, it be incumbent upon him to
make known this matter.— Some have said
that such notification is incumbent upon him,
since an establishad custom is equivalent to
a condition.— Others, again, allege, that he
286 S\LE
is under no necessity of giving such notifica-
tion, since it is evsdent that, as no condition
was stipulated the sale was therefore for
prompt payment.
In a .sale of friendship the rate must •be
specified; and the purchaser has a right of
option until after the specification — IF a
person dispose of a thing to another by a
sale of friendship, declaring that "he sells it
to him at the rate it hid stood him in/' —
and the purchaser be not acquainted wtlh
that rate, the sale is invalid, from the un-
certainty with regard to the price ; — if,
however, the seller should afterwards in-
form the purchaser of the rate, at the
same meeting, the sale then becomes valiJ,
but it still remains in the option of the
purchaser to abid*» by or recede from the
contract as he pleases, since the acquies-
cence he had before expressed was not fully
established, from his ignorance of the price
and after the knowledge of it he has an
option, in the same manner as in the case of
an option of inspection. The reason of the
validity of this sale is that the invaliJity
does not become firmly established until ths
departure of the parties from the meeting. —
When, therefore, the purc'nater, in the meet-
ing, is informed of the price, it becomes the
same as if a new contract had taken place
after the purchrser had acquired this know-
ledge ; and it is for him to withhold his
acquiescence until the end of the meeting —
If, however, the parties should separate, the
invalidity then becomes fixed ; nor can it be
removed by any knowledge which the pur-
chaser may afterwards obtain of the amount
of the price. — Similar to this is the case
where a person sells cloth for the value which
is marked upon it, but of which the purchaser
is ignorant ; for such sale is invalid, but may
be rendered otherwise by the explanation of
the seller, before the breaking up of the
meeting.
Section
Moveable property cannot be re- sold before
seisin. — IT is not lawful for a person to sell
moveable property, which he may have
purchased, until he receive possession of the
same : because the l-rophet has prohibited
the sale of a thing prior to the seisin of it on
the part of the seller : and also, because there
is an unfairness in it, since, if the mer-
chandise should be lost or destroyed before
the seisin, the first sale becomes null, and
the property reverts to the former proprietor,
in which case it must necessarily appear that
the person in question has sold thr; property
of another without his consent*
But land may be re-sold previous to seisin
by the first purchaser. — THE sale of land,*
previous to seisin, is lawful, according to
Haneefa and A boo Yoosaf. Mohammed
maintains that it is unlawful ; because the
[VOL. II,
•Arab Akkar ; meaning any species of
i mm oy cable property. Zimeen is the term
used in the Persic version, whence the trans-
lator renders it land.
traditional saying of the Prophet before quoted
is absolute, and not particularly confined to
moveable property ; an J also, because of its
analogy to moveable property. Besides, the
sale of land is similar to the hire of it ; in
other words, as it is unlawful to let land
before seisin so is it likewise to sell land
before seisin. Tne reasoning fo the two
disciples is that, in the case in question, the
sale is effected by competent parties with
respect to a fit subject ;— that there is no
unfairness in it, s.nce the destruction of
ground is rate, whereas that of moveable
property is probable ;— and that the prohibi-
tion of the Prophet is founded on the possi-
bility of the unfairness already explained,
which does not exist in the case of land, the
destruction of it b^ing rare. — Some have
asserted that a lease of land before seisin, as
adduced by Mohammed, is lawful in the
option of the two disciples. — Admitting,
however, that it were unlawful according to
all our doctors, it proceeds evidently on his
principle, that a lease is made with a view
to the produce, the destruction of which not
being uncommon, the unfairness already
explained (with respect to the sale of move-
able property before seisin) may consequently
take place in it. This, however, cannot
happen with respect to the sale of ground,
the destruction of which is rare, and con-
sequently the one case is not analogous to
the other.
In the re-sale of articles of weight, and
measurement of capacity, it i.t requisite that
the article be weighed or measured again by
the second purchased — IF a person purchase
articles estimable by a measure of capacity,
such as wheat, — or articles of weight, such as
butter, — as if he should say, "I have pur-
chased this wheat, on condition of its being
equal to ten bushels," — or "this butter,
Qn condition of its weighing ten mans," —
and if, having measured or weighed these
articles accordingly, he should then take
them and sell them to another, on the same
condition of measure or weight, in that case
it is not lawful for that other to sell or use
these articles, until he has measured or
weighed them on his own account ; because
the Prophet has prohibited the sale of wheat
until it be measured both by the buyer and
the seller : and also, because there is a possi-
bility of these articles exceeding the war-
ranted quantity ; in which case the excess,
as being the property of the seller, would
not be lawful to the purchaser ; and an
abstinence in the case of this possibility is
necessary. — It is otherwise where the sale is
made by conjecture, without any condition
of measurement ; for the excess, in that case,
is the right of the purchaser ; and it is also
otherwise in the sale of cloth by yards, for
there 1 ikewise the excess is the right of the
purchaser ; since yards (as has been already
explained) are a description of the cloth, and
not a quantity, as in the case of articles of
weight or meisure of capacity.— It is to be
observed that the measurement of the cloth
BOOK VXI.—CHAP. VII.]
SALE.
287
by the seller, previous to the sale, is not
valid, although it should have been done in
the presence of the purchaser, because
the measurement of both the seller and
purchaser is required, and these terms are
not applicable to the parties until after the
sale takes place. So also, the measurement
made by the seller after the sale is invalid,
unless it be in the presence of the purchaser,
because the object of measurement is delivery,
and delivery without the presence of the
purchaser is impracticable.
It suffices, however, that the article be
weighed or measured by the selle , in the
purchaser's presence. — IF the seller only
should measure the merchandise after the
sale, in presence of the purchaser, a question
has arisen, whether this be sufficient ? — or,
whether it be not necessary that the pur-
chaser should also examine it by his own
measure ?-- -Some have said that the measure-
ment of it by the seller only, is not sufficient,
according to the plain sense of the tradition
already quoted. The more approved doctrine,
however, is that it is sufficient, since by the
measurement of the seller the quantity is
ascertained, and delivery completely estab-
lished. The tradition before quoted alludes
to the junction of two contracts ; as where,
for instance, a person having purchased,
measured, and taken possession of a thing
afterwards sell it to another : in which case
it is necessary that the second purchaser
himself measure it ; and the measurement of
the first purchaser, who stands in the relation
of seller to him, is not sufficient, as will
hereafter be more fully explained in the
chapter of Sillim sales.
In there sale of articles of tale or longi-
tudinal measurement, the telling or measuring
by the second purchaser is not requisite. — IT
is related as an opinion of the two disciples,
that articles of tale are analogous to those QI*
longitudinal measurement ; that is, if a per-
son, having purchased and received articles of
this nature on condition of their amounting
to a particular number, should afterwards
sell them to another on the same condition,
there is, in that case, no obligation on that
other to enumerate them on his own account,
because such articles are not susceptible of
ususy. — It is related, also, as an opinion of
Haneefa, that articles of tale are similar to
those of weight, because in regard to them
the receipt of any excess beyond the stipu-
lated number is unlawful to the purchaser ;
articles of tale are therefore analogous to
articles of weight.
A seller may dispose of the price of his
goods without having taken possession of it. —
ANY deeds of the seller with regard to the
price of the merchandise, prior to the actual
receipt of it, such as gift, sale, hire, or
bequest, is lawful, whether the price be
stipulated in money or goods ; — because the
cause of legality, namely, right of property,
is established in the seller ; and the act is
attended with no unfairness (such as has
been shown to exist in the case of spiling
moveable property prior to the receipt of it),
because the price, if expressed in dirms anJ
deenars, is indeterminate, and is therefore
incapable of being destroyed ; and if it
consist of any thing else, still the sale is not
invalidated by a destruction, since the value
remains due from the seller. — It is otherwise
with respect to the article purchased, as the
sale of that before receipt of it induces fraud,
as was before explained.
The parties are at liberty to make any
subsequent addition or abatement, with respect
either to the go'ds or the price ; and such
addition or abatement are incorporated in the
contract.— IT is lawful f :>r the purchaser to
make an increase of the price in favour of
the seller : and for the seller to make an
increase in the merchandise in favour of the
purchaser ; — and it is also lawful for the
seller to make abatement from the price in
favour to the purchaser ; and this increase
or abatement is incorporated in the original
contract (that is to say, in case of an increase,
the original and additional from the price
or the article ; and in case of an abatement,
what remains after the deduction is the price
of the article). Hence, in the first case, the
sell er possesses a right to the original price,
together with the increase superadded to it ;
and, in the second case, the purchaser has a
right to the original merchandise with the
increase s-jperadded* Shafei and Ziffer are
both of opinion that such increase is a mere
act of favour, and therefore cannot be incor-
porated m the original sale ; for, if so, it
must necessarily follow that a person gives
his own property in exchange for his own pro-
perty, since, previous to the increase of the
price, the article was the property of the
purchaser in exchange for the original price ;
and; consequently, if the increase be made
in the price, the property of tlve purchaser
is given in exchange for what was before his
property ; in the same manner, also, in the
second case, as the price, previous to the
increase, was the property of the seller, it
follows that in increasing the wares ; he gives
his own property in exchange for his own
property. — Neither can an abatement from
the price, by the seller, be incorporated with
the original contract : but it must rather be
considered as an act of favour ; because;
prior to the abatement, an exchange of the
merchandise for the whole of the price had
taken place ; and it is impossible to set aside
any part of the price, ?ince in such case it
must follow that a part of the merchandise
had no correspondent exchange opposed to
it ; and this is unlawful.
OBJECTION. — This consequence does not
follow ; because the remaining sum, after
the deduction of the abatement is con-
sidered as an exchange for the whole of the
merchandise.
REPLY, — It is impossible to consider the
remainder as an exchange for the whole,
because no new contract has taken place
with regard to the diminished price, and the
old coi ract relates only to the full price.
288
SALE
[VOL. II.
THE reasoning of our doctor* is, trut the
buyer and seller, by means of the increase
and abatement, do only alter the contract
from one lawful accident to another lawful
accident ; and that, as the parties possess
the power of annulling the contract, they
arc, a superior!, entitled to make an altera-
tion in the non-essential properties of it.
The case is therefore the same as if the
parties should annul an optional power, or
stipulate one after the conclusion of the
contract. — Now, since it is lawful for the
parties to alter the accident of the contract
by means of increase or abatement, it follows
that such increase or abatement is incorpora-
ted with the original contract ; because the
accident of a thing adheres to that thing,
and does not exist abstractedly of itself.
It is otherwise where a seller abates the
whole price ; for such abatement could not
be incorporated with the original contract,
since in that case a change would take place
in regard to what is an essential property,
and not an accident of the contract. — It is
also to be observed, that from the increase
and abatement being incorporated with the
original contract, it does not necessarily
follow that a person gives his own property
in exchange for his own property, because
the original contract does as it were related
to such increase or abatement. — The advan-
tage of the incorporation of the increase
and the abatement in the original contract
is evident, in a case of friendly or profitable
sals : for if a person sell something by a
profitable sale to a purchaser who increases
the price in the seller's favour, in that case
it is lawful for him [the seller] to charge
his profit on the original and the increase
united, as, in case of an abatement, on the
other hand, his profit must be charged on
the residue after the deduction. — The ad-
vantage arising from this is also evident
in a case of Shaffa : for the person possessing
the right of Shaffa is entitled to the subject
of the sale, in case of an abatement in ex-
change for the diminished price.
OBJECTION. — Since the abatement and
increase are incorporated with the original
contract, it would follow that, in a case
of increase : the penon possessing the right
of Shaffa is to take the subject of the sale
at the aggregate amount of the original
price, and its increase, — instead of taking
it (as is the case) at the original price
only.
RiPLY.—In case of an increase of the
price, the proprietor of the right of Shaffa
takes the subject of the sale at the original
price only, because his right relates to the
original price, and it is not in the power of
the buyer and seller, by any act of theirs, to
annual such right.
The price cannot be increased after the
destruction of the goods in the purchaser's
hands. — ANY increase of the price, after the
destruction of the wares in the possession of
the purchaser, is not valid (according to the
Zahir-Rawayet), because of the wares not
having been in a state that admitted of the
lawful opposition of an exchange for them.
OBJECTION. — It would appear that the
increase of the price remains in force after
the destruction of the goods ; for although
the goods be not then in a state to admit any
exchange being opposed to them, yet the
increase ^incorporates with the original con-
tract, which was concluded at a time when
the goods being extant, it was lawful to
oppose an addition to the exchange for them.
REPLY. — If the wares had remained in a
condition to admit of an exchange of pro-
perty for them immediately, then such
exchange might have been immediately
established, and referred afterwards to the
period of forming the contract ; for a thing is
first established on the instant, and is then
referred to the formation of the contract : —
but as, in the present instance, the immediate
exchange, of the property cannot be estab-
lished, the wares no longer existing, the
reference back is impossible : and hence any
increase of the price is evidently invalid — It
is otherwise with respect to an abatement of
the price after the destruction of the wares,
because these, after their destruction, are in
a state which admits of a diminution of the
price : which is therefore referred to the
formation of the contract.
A prompt payment may be commuted for
a distant payment. — IF a person, having
sold something on condition of prompt
payment, should afterwards agree to receive
the price at a future fixed period, it is laivful,
because the price is solely the right of the
seller ; and as it is in his power, if he choose
to forego it altogether, he is consequently
entitled, for the convenience and ease of the
purchaser, to take a future payment instead
of a prompt one, a fortiori. — If the period
stipulated be not certain, and the uncertainty
bfc very great (as if he should stipulate pay-
ment when the wind blows, for instance), it is
not lawful. If the period, on the contrary,
be only in a small degree uncertain (as if he
should stipulate the payment at the cutting of
the corn, or the threshing of it), it is lawful,
in the same manner as in the case of bail, of
which an explanation has already been given.
In all debts except those incurred by a
loan. — EVERY debt immediately due may
be suspended, in its obligation, to a future
period, by the creditor, on the principles
laid down in the preceding case. — excepting
a loan,* the suspension of the obligation of
• Arab, Karz ; signifying a loan of money,
in opposition to Areeat, which means a loan
of anything but money. These deeds tre
considered, by Mussulmans, to be of i
distinct and separate nature. In the one
the intention is to destroy the substance of
what is borrowed, that is, to spend the
identical money received, and afterwards
return an equal number of similars. In
the other, the intention is to enjoy the
usufruct without injuring the substance,
which is to be returned in its identical state.
Bore XVI.-CHAP. VIIL]
SALE
289
which is not approved. —The reason of this
is that the lending of money is, in the im-
mediate act, equivalent to a loan of any
other thing,* and an act of benevolence
(whence it is that if a person should tender
a loan of money to another, expressing: his
intention by the word Areeat — as if he
should say, "I deliver these ten dirms a? an
Areeat, — it is valid ; and also, that no
parson who is incapable of any grata tous
act, such as an infant or a lunric, is
competent to this deed): but in ths end it
operates as an exchange, since the b^rrow^r
gives to the lender an equal sum, b.it no t4e
identical specie he received — In cors dera-
tion, therefore, of th; im-nediate act a r^p'te
is not binding upon the lender, as there can
be no constraint in an act purely grat .litcu; ;
and, in consideration of the end, the respite
is not approved, for in this case the transaction
would resolve itself into a sale of money for
money, which is usury, — It is otherwise in
the bequest of a loan for a fixed period; for
if a person bequeath the loan of one thou-
sand dirms to another, for a year (for in-
stance), the performance of this is incumbent
on the executor; nor is he entitled to make
any demand on the legatee until the expira-
tion of the term, since this bequest i? of
a gratuitous nature, and resembles the be-
quest of the services of a slave, or the use of
a house.
CHAPTER VIIL
OP RIBBA, OR USURY.
Definition of the term. — RIBBA, in the
language of the LAW, 'signifies an excess,
according to a legal standard of measure-
ment or weight in one of two homogeneous
articles [of weight or measurement of capa-
city] opposed to each other in a contract of
exchange, and in which such excess is stipu-
lated as an obligatory condition on one of
the parties, without any return, — that is,
without anything being opposed to it. The
sale, therefore, of two loads of barley (for
instance) in exchange for one load of wheat
does not constitute usury, since these articles
are not homogeneous: — and, on the other
hand, the sale of ten yards of Herat cloth
in exchange for five yards of Herat cloth is
not usury, since, although these articles be
homogeneous, still they are not estimable by
weight or measurement of capacity.
Usury (occasioned by rate united with spe-
cies) ts unlawful. — USURY is unlawful; and
(according to our doctors) is occasioned by
ratef, united with species. — Shafei maintains
•Literally, "a KARZ is, in its immediate
occurrence, equivalent to an AREEAT."
fit may be necessary here to observe that
rate, amongst the Mussulmans, applies only
to articles of weight or measurement of capa-
city, and not to articles of longitudinal mea-
surement, such as cloth, or the like. — The
that usury takes place only in things of an
esculent nature, or in money. — It is neces-
sary, in order to the operation of the ille-
gality, that the articles be homogeneous ;
but an equality in point of weight or mea-
surement of capacity annihilates the usury.
—It is to be observed that a superiority or
inferiority in the quality has no effect in the
establishment of the usury ; and hence it is
lawful to sell a quantity of the better sort
of any article in exchange for an equal
quanitity of an inferior sort.
Itcjnsists in the sale of an article (of
weight or measurement of capacity) in ex-
change for an unequal quantity of the same
article. — THE sale, at an unequal rate, of
articles of weight or measurement of capa-
city, in exchange for homogeneous articles,
is usurious, according to our doc'prs, al-
though the articles be of a description not
esculent (such as loam or iron, for instance);
— because they hold that the cause of usury
exists, in articles of weight and measure-
ment of capacity, although they be not of
an esculent nature. Shafei maintains that
such sale is lawful, agreeably to his tenets
with respect to usury. Supposing, however,
the equality of the rate, such sale is lawful
in the opinion of all the doctors. — (It is to be
observed that loam is an article of measure-
ment by capacity, and iron of weight )
But does not ex'st where the quantities are
not ascertained by some known standard of
measurement. — THE sale of anything not
measured out according to the 'egal stan-
dard, at an unequal rate, is lawful Thus
it is lawful to sell one handful of wheat in
exchange for two handfuls : or two han jfu's
in exchange for four :— and also, one apple
in exchange for two apples; because, in such
case, the measurement not having been made
according to a legal standard, it follows that
a superiority of measurement (which is essen-
tial to the establishment of usury) has not
according to the rules of measurement, taken
place Shafei maintains that such sale is
unlawful ; because the article is, in this
instance, of an esculent nature, which (ac-
cording to his tenets) is the efficient cause
of usury ; and also because the equality
destructive of usury doe's not here ^ exist.
(It is to be observed that whatever is less
than half of a Saa is considered equivalent
to an handful, since the law has fixed no
standard of measure baneath that quantity.)
It is occasioned either by an inequality in
point of quantity, or by a suspension of re-
payment ; unless the consideration and the
return be heterogeneous.— WHERE the quality
of being weighable or measurable by capa-
city, and correspondence of species (being
the causes of usury) both exist, the stipula-
tion of inequality, or of a suspension of pay-
ment to a future period, are both usurious.
Thus it is nsurious to sell either one measure
phrase here used implies an inequality of
RATE with a similarity of SPECIES.
290
SALE
[VoL IT.
of wheat in exchange for two measures,— or
one measure of wheat for one measure deli-
verable at a future period. If, on the con-
trary, neither of these circumstances exist
(as in the sale of wheat for money), it is
lawful either to stipulate a superiority of
rate, or the payment at a future period. If,
on the other hand, one of these circumstances
only exist (as in the sale of wheat for barley,
or the sale of one slave for another), then a
superiority in the rate may legally be stipu-
lated, but not a suspension in the payment.
Thus one measure of wheat may lawfully be
sold for two measures of barley, or one slave
for two slaves : but it is not lawful to sell
one measure of wheat for one measu-e of
barley payable at a future period : nor one
slave for another, deliverable at a future
period. Shafei is of opinion that corresnon-
dence of species alone does not render illegal
a suspension of deliverv ; because where, in
an exchange, a prompt delivery is opposed
to a future delivery, there is only a sem-
blance of a superiority of rate, founded on
the preference given to prompt pavment.
Now if a superiority of rate, in reality, be
not preventive of the legality of the sale (as
in the case of one slave for two slaves), it
follows that the semblance only of a supe-
riority is not preventive of such legality, a
fortiori. The arguments of our doctors are,
that wherever either correspondence of spe-
cies, or the quality of being weigh able or
measurable exists, the wares are, in one
shape, of that description in which usury
takes place ; and accordingly, a semblance
of usury takes place in them, which is re-
pugnant to the legality of the sale in the
same manner as actual usury. The ground
of this is what is written in the Hadees
Shireef, that "articles of different species
may be sold in any manner the parties
please, provided the bargain be from hand
to hand."
OBJECTION. — Since correspondence or
species, or the quality of being weighable or
measurable does either of them singly pre-
vent the legality of a suspension of delivery,
it would follow that a contract of Si Him sale
stipulating an exchange of saffron for dirms
or deenars, is invalid, as both are articles of
weight : — whereas such a sale is valid.
REPLY. — The contract is lawful, notwith-
standing saffron and deenars be both articles
of weight, because they do not agree in the
quality of the weight, as saffron is weighed
by Mans, and being a subject of sale only, is
therefore definite by specification ; whereas
dirms and deenars are weighed by stones,
being only price and not a subject of sale ;
and therefore do not become definite by
specification. In the same manner, also, ii
a person should sell saffron to another for
one hundred dirms, ready money, that
other may lawfully employ the said dirms
either in purchase or in any other mode
without reweighing them : — whereas if a
person sell saffron, on condition of its being
two Mans, the purchaser is not afterwards
at liberty to dispose of it by sale or by any
other mode without reweighing it ; as holds
with respect to all articles of weight or
measurement of capacity. Now it being
hus demonstrated that the weight of saffron
and other articles is different from the weight
of dirms and deenars, in appearance, sub-
stance, and effect it follows that they do not
unite in any circumstance with respect to the
quality of the weight ; and consequently, that
the semblance of usury, in this case, is only an
apprehension of a semblance, which is not
regarded.
All articles ordained by the Prophet to he
articles of measurement, continue so, not-
withstanding any alterations of custom: —
and the same of all ordained hy him to be
artitles of weight. — EVERY THING in which
the usuriousness of an excess has been
established by the Prophet on the ground of
measurement of capacity (such as wheat,
barley, dates, and salt), is for ever to be
considered as of that nature, although man-
kind should forsake this mode of estimation;
and in the same manner, everything in
which the usuriousness of the excess has
been established by the Prophet on the
ground of weight, continues for ever to be
considered as an article of weight, like cold
or silver ; becauce the custom of mankind,
which regulates the mode of measurement, is
of inferior force to the declaration of the
Prophet ; and a superior cannot yield to an
inferior. (,4boo Ycosaf is of opinion that in
all things practice or custom ought to pre-
vail, althoogh in opposition to the ordinance
of the Prophet ; for the ordinance of the
Proph:t was founded on usage and practice,
of his own time: — in ordinances, therefore
the prevalant customs among mankind are
to be regarded ; and as these are liable to
alter, they must be attended to, rather than
the letter of an ordinance) If. therefore, a
person should sell wheat in exchange ^for an
equal quantity, bv weight, or gold in ex-
chanpe for an equal quantity, bv a measure-
ment of capacity, neither of these sales
would be lawful (according to Hancefa and
Mohammed), although these modes of weigh-
ing wheat and measuring gold should become
sanctified by the custom of mankind.
AH articles referred to any known standard
of weight are considered as articles of weight.
— WHATEVER is referred to Ratls is con-
sidered as an article of weight, This the
compiler of the Hedaya explains to mean
that whatever is sold by the Awkiyat* must
be considered as an article of weight; for
an Awkiyat is a fixed standard of weight
in opposition to all other measures of capa-
city, as none else are standards of weight.
Now as everything sold by the Awkiyat
comes under the description of an article of
weight, it follows that if this thing be sold
•This term has been formerly mentioned
to signify an ounce, (See Vol, I. p. 9.)
From the context, however, it would appeal
that it also signifies a measure of capacity.
BOOK XVI.— CHAP. VIII.]
SALE
291
by the measurement of anv other vessel not
of a fixed standard of weight, opoosed to a
similar vessel, such sale is unlawful, because
of the probability of a disparity of weight,
notwithstanding the equality in point of
measurement of capacity : for this, in fact,
is the same as if one person should sell one
article of weight in exchange for another of
the same kind and adjust the quantity by
conjecture.
Note concerning Sirf sale. — IT is to be
observed that a Sirf sale means the sale of
price in exchange for price : and price implies
dirms and deenars, In this mode of sale it
is a necessarv condition that the interchange
of properties take place at the meeting,
because the Prophet has or^'a ned the sale of
silver in exchange for silver, from hand to
hand. — as shall be explained at large in
treating of Sillim sale : but in «»very other
article, provided it be of that kind in which
ususy takes place (such as wheat in exchange
for wheat, for instance) the interchange
upon the snot is not a condition, it being only
required that the article be specific. Sliafei
maintains that in tke sale of wheat for wheat
mutual seisin is a condition, because of the
ordinance of the Prophet, "Sell it from hand
to hand;" and also because, if one partv
should make seisin, and not the other, it
follows that an apoearance of usury takes
place inasmuch as prompt payment is superior
to future payment. Our doctors ar ue that
wheat-, as being a determinate subject of
sale, does not, like cloth, stand in need of
seisin, since the object of the contract is the
attainment of a power ov^r the article, which
is fully established by its being determinate.
It is otherwise with respect to Sirf sales, for
there the seisin is made a condition in order
that the price and subject of th» sale may be
rendered determinate, which is only to be
effected bv means of seisin. With respect^
to the ordinance of the Prophet, enjoining*
the sale from hand to hand, Obadah Bin
Samat has explained it to mean the sale of
one determinate thing in exchange for an-
other. Besides, on the postponement of the
seisin, no loss is reckoned to result, in the
opinion of mankind : — contrary to where a
prompt and future payment is stipulated :
because the latter in the opinion of mankind
is a detriment.
Similiar may be sold for tach other, twth-
out inducing usurv, — THE sale of one egg in
exchange for two eggs, from hand to hand,
is lawful ; and the same with respect to dates
and walnuts ; because these articles are
neither subject to measurement of capacity
or weight, with regard to which only usury
relates. Shafei, in this case, differs from
our doctors ; because usury, according to his
opinion, relates to articles of an esculent
nature, of which kind these are.
Usury cannot take place with respect to
Faloos. as they are articles of sale.— THE
sale of one specific Faloos,* in exchange for
* A copper coin. (Sec Vol. II. p 220.)
two other specific Faloos, is valid, according
to Haneefa. Muhammad maintains it to be
unlawful ; because, as the fitness to con-
stitute price is established in Faloos, with
the consent of mankind, it cannot be annulled
by any agreement of a seller and purchaser
counter thereto, and as the fitness to con-
stitute price still continues the Faloos can-
not be rendered determinate bv means of a
stipulation to that effect in the contract.
The case, therefore, becomes the same as if a
person should sell one underminate Faloos
in exchange for two underminate. — or, as
if a person should sell one dirm in exchange
for two. The reasoning of the two disciples
is that this fitness to constitute price in Faloos
cannot subsist with relation to a buyer and
seller, unless bv their mutual agreement to
that effect ;• and, consequently, where they
agree to the contrary, the fitness to represent
price is, with respect to them, null ; nor can
the general consent of others, to admit Faloos
as a representative of price, operate as an
argument with respect to them, since in th s
matter ofhers have no power over them.
Hence it follows that, as the fitness to con-
stitute price is, with respect to them, null,
the Faloos may be identified by their speci-
fication
OBJECTION — Upon the fitness to constitute
price being done away by the agreement of
the parties, th» Faloos will of consequence
revert to their primary nature, namely,
weight (for the Faloos was originally a
weight). — It vould therefore folio v that the
sale of one Faloos for two Faloos is not valid
although the fitness to constitute price be
done awav by the agreement of the contract -
ing parties.
" REPLY.— The Faloos do not revert to their
original nature, because, by the agreement
of mankind, they are considered as articles
of tale, and this agreement remains in force.
Hence they stand in the same predicament
as walnuts or other articles of tale, and the
unequal sale of them is of consequence in the
same manner lawful.— It is otherwise wi.h
respect to dirms and deenars, because these
naturallv constitute price. — It is also other-
wise with respect to the sale ofoneunde-
terminate Faloos in exchange for two un de-
terminate Faloos ; for this is, in fact, a
stipulation of future payment ^and future
Heliverv. a species of sale which has been
forbidden by the Prophet. — It is also other-
wise where the stipulation of one of the
parties relates to undeterminate Faloos. for
this is equivalent to a postponement of pay-
ment, and such postponement is rendered
unlawful bv homogeneity alone.
Flour of meal cannot be sold for wheat.—
THE sale of wheat in exchange for the flour
or meal of wheat is unlawful, because wheat,
and the meal and flour of it, are all of one
•That is to say, copper coins are not to be
considered as price but by a previous agree*
ment of the parties.
292
SALE
[VOL. II.
species. — It is impossible, moreover, to ascer-
tain the equality between those articles by
measurement, since flour and meal are of a
close and compact nature, and what is not.
Hence this kind of sale is essentially invalid,
even in the exchange of one measure of the
one for one measure of the other.
Flour may be sold for flour. — THE sale of
flour in exchange for flour is valid, provided
the quantities be equal by measurement, be-
cause the condition of legality (namely,
equality) is here established.
But not for meal. — THE sale of flour in
exchange for meal* is not valid, according
to Haneefa, in any mode ; neither at an
equal, nor at an unequal rate ; for as it is
not lawful -to sell flour in exchange for
parched wheat, or meal in exchange for raw
wheat, so also it is not lawful to sell either
of those articles for the other, because of
their homogeneity. — According to the two
disciples the sale in question is lawful ; be-
cause flour and meal are of different species,
inasmuch as the object to be derived from
each is different ; for the object of flour is
bread and that of meal is a culinary prepa-
ration, mixed up with water or oil. — But the
answer to this is that the original object of
both is the same, nemely, food ; which is
not affected in its nature by the modification
of it, since raw wheat and parched wheat are
considered as of the same species, and like-
wise wheat affected by vermin and wheat
that is whole and preserved, — although, in
answering particular objects, these kinds be
different.
The sale of flesh for a living animal is not
usurious. — THE sale of flest in exchange for
a living animal is lawful, according to Ha-
neefa and Aboo Yoosaf. Mohammed is of
opinion that the sale of flesh in exchange for
a living animal of the same species is un-
lawful, unless the quantity of the dead flesh
exceed that of the living flesh, in order that
the excess may be opposed in exchange to
the other parts of the living animal, inde-
pendent of flesh ; and the remaining part of
the slain flesh remain opposed in an equal
degree to the living flesh ; because otherwise
usury must necessarily take place, since, if
the quantities of flesh were exactly equal, it
must necessarily follow that the other parts
of the living animal had no exchange opposed
to them ;— or if, the quantities of flesh being
equal, a deduction be made from the dead
flesh, in opposition to the other parts of the
living animal, it would necessarily create an
inequality in the exchange of flesh for flesh.
The sale in question, therefore, resembles a
sale of sesame seed in exchange for sesame
of, which is unlawful. The arguments of
the two disciples in support of their opinion
is, that the case in question is in fact the
sale of an article of weight for what is not
an article of weight ; since it is not cus-
•Arab. Saveek. A sort of coarse meal pre-
pared cither from wheat or barley. — Also,
what remains after sifiting off the fine flour,
tomary to weigh living animals, it being in-
deed impracticable to ascertain their weight
as they are not at all times of equal weight,
an animal being lighter when hungry, and
heavier, when filled with food. — It is other-
wise with oil-seeds, as by weighing those
may at once be ascertained the quantity of
oil contained in them when separated fron
the dregs or refuse.
Nor the sale of fresh dates for dried dates.
— THE sale of fresh dates in exchange for
dried ones is lawful, according to Haneefa.
The two disciples hold a different opinion,
because of a tradition, in which it is men
tioned that a person having interrogated the
Prophet regarding the legality of such sale,
the Prophet, in return, desired to know
whether fresh dates did not diminish in
drying ? — and upon that person answering
in the affirmative, he declared that, such
being the case the sale of fresh dates in
exchange for dry ones was not lawful. The
arguments of Haneefa in suoport of his
opinion are twofold : — FIRST, the word Tam-
mir, expressive of dry dates, is also appli-
cable to fresh dates, because there is a
tradition that a person brought some fresh
dates from Kheebir to the Prophet, who, on
theii being presented to him, inquired if all
the Tammir of Kheebir were of that kind ? and
as fresh and dry dates are from this circum-
stance held to be of the same kind, it follows
that the sale of the one in exchange for the
other, on condition of an equality in the rate,
is lawful, since the Prophet has said, "Sell
TAMMIRS in exchange for TAMMIRS, at an
equal rate " — SECONDLY, if it be not ad-
mitted that fresh dates fall under the ap-
pellation of Tammir, still the sale is lawful,
because of another saying of the Prophet,
"When two things are of different species,
then let them be sold in whatever manner
^the parties please," In regard to the saying
quoted by the two disciples, it rests entirely
on the authority of Zeyd Ibn Abbas, which
is considered weak among the traditionists.
— It is to be observed that the same disa-
greement subsists with respect to the sale of
dried and fresh grapes, founded on the same
arguments as those already cited. Some
have asserted that the sale of dried grapes
in exchange for fresh is unlawful, according
to all our doctors, grounding this assertion
on the analogy which subsists between this
case and that of parched and raw wheat, the
sale of which in exchange for each other is
universally declared to be invalid.
THE sale of fresh dates in exchange for
fresh dates, at an equal rate in point of
measurement of capacity, is lawful, in the
opinion of all our doctors.*
•The remainder of this case, which is of
considerable length, as well as the complete
succeeding case, has been omitted in the
translation, because the disputations con-
tained in them are founded entirely on ^ verbal
criticisms, which do not admit of an intelli-
gible translation.
BOOK XVI.-CHAP IX]
SALE
293
The sale of the manufactured p oduce of
an article in exchange for a similar article.
is usurious, unless it exceed that article in
quantity — THE sale of olives in exchange
for oil of olives is unlawful, excepting when
the actual oil is greater in quantity than the
oil contained within the olives, in which case
the excess being opposed to the dregs that
will necessarily remain after the expression
of the oil prevents the establishment of
usury. — The lav is the same with respect to
the sale of walnuts for the oil of walnuts, of
sesame seeds for the oil of sesame, of milk
for butter, or of the juice of the grape or
dates in exchange for crapes or dates. With
respect to the sale of cotton in exchange for
the thread of it there is a difference of
opinion. The sale of cotton, however, in
exchange for calico is universally allowed to
be legal.
One species of flesh miy be sold for another
species. — IT is lawful to sell one species of
flesh, in any manner, in exchange for another
species of flesh, (such as the flesh of a cow
for that of a camel or a goat). It is to be
observed that the flesh of a cow and of a
buffalo are of the same species, as is also the
flesh of a sheep and that of a goat.
The sale of the milk of one anirnal for an
unequal quantity of milk of another species
of animal does not induce usurv — THE milk
of a cow and of a goat are of different kinds,
and mav therefore be lawfully sold in ex-
change for each other at unequal rates. It
is related, as an opinion of Shafei, that these
are of the same kind, because the obiect to
be derived from each is the same. But our
doctors areue that the flesh of these animals
is evidentlv of a different kind, since it
would not be lawful for a person, on whom
the gift of a cow in alms was enioined, to
substitute a goat in lieu of a cow if it prove
defective ; the milk of these animals, there*
fore, differs in point of species in the same
manner as their flesh. It is to be observed
that the vinegar of dates is of a different
kind from the vinegar of grapes, because of
the difference of their oringals. So also,
the wool of a sheep is of a different kind
from that of a goat, because they answer
different objects.
Bread may be told for flour at an unequal
rate. — IT is lawful to sell bread made of
wheat in exchange for wheat, or the flour of
wheat, at an unequal weight, because bread
is considered either as an article of tale or of
weight, and consequently is of a different
kind from wheat or flour, which are subject
to measurement of rapacitv. — It is related
as an opinion of Haneefa, that such sale is
utterly invalid : but decrees pass according
to the first adjudication, and this, whether
the delivery of either the wheat or the bread
be stipulated to take place at a future
period. According to Haneefa the borrow-
ing of bread is utterly unlawful, — that is
whether it be considered as an article of tale
or weight,— because there is great difference
with respect to cakes of bread ; either in
respect to th:mselves, or the workmanship
of the baker. According to Mohammed it is
absolutely legal ; that is, whether the bread
be considered as an article of tale or weight.
According to Aboo Yoosaf it is lawful, if
considered as an article of weight ; but not
if considered as an article of tale, because of
the difference of the unities.
Usury cannot take place between a master
and his slave. — USURY cannot take place
between a master and his slave, because
whatever is in the possession of the slave is
the property of the master, so that no sale
can possibly take place between them, and
hence the impossibility of usury.
Unless the slave be an insolvent Mazoon. —
This proceeds upon a supposition of the
slave being privi'eged and free from debt ;
for in the case of a privileged slave who is
insolvent, usury, may take place between
him and his master, according to Haneefa,
because (agreeably to his tenets) the posses-
sions of such slave do not belong to the
master ; — and according to the two disciples,
because although (agreeably to their tenets,
the possessions of such slave be the property
of his master, still as the claims ot the
creditors are connected with them, the slave
stands in the same relation to his master as
a stranger, and consequently usury may exist
in their dealings.
Nor between a Mussulman and infidel in a
hostile country. — USURY cannot take place
between a Mussulman and a hostile infidel
in a hostile country. — This is contrary to the
opinion of Aboo Yoosaf and Shafei, who
conceive an analogy between the case in
question and that of a protected alien within
the Mussulman territory. The arguments
of our doctors upon this point are twofold.
FIRST, the Prophet has said, "There is no
usury between a MUSSULMAN and a hostile
infidel, in a foreign land/ — SECONDLY, the
property of a hostile infidel being free to the
Mussulmans, it follows that it is lawful to
take it by whatever mode may be possible,
provided there be no deceit used.
It may take place between a protected alien
and a Mussulman. — IT is otherwise with
respect to a protected alien, as his property
is not of a neutral nature, but sacred,
because of the protection that has been
afforded to him.
CHAPTER IX.
Of RIGHTS AND APPENDIX
Definition of rights and appendages, as
connected with sale. — The rights of a sale
are things essentially necessary to the use of
the subject of the sale, such as, in the
purchase of a house, the right of passing
through the road that leads to it ; or, in the
purchase of a well, the right of drawing
water from it.— Appendages imply things
from which an advantage is derived, but in
294
SALE
[VOL. II •
a subordinate degree, such as cook-room,
or a drain.
Difference of rights in a purchase, with
respect to a Manzil. a Dar, and a Bait — IF
a person purchase a Manzil above which
there is another Manzil, he is not entitled to
the upper Manzil, unless he have stipulated
the purchase of the Manzil "with all its
rights, and all its appendages," — or '"with
everything great and small upon it, in it, or
of it." — If, on the other hand, a person
purchase a Bait above which there is
another Bait, with a stipulation of all its
rights, still he is not entitled to the upper
Bait. But if a person purchase a Dar (that
is, a serai) with its enclosure, he is entitled
to the upper storeys and the offices ; because
the term Dar signifies a place comprehended
within an enclosure, which is considered as
the original subject, and of which the upper
storey is a dependant part. Bait, on the
contrary, simply signifies any place of resi-
dence ; and as the upper storey of a house is
of this nature as well as the under, it cannot
be included in the purchase of a Bait, unless
by an express specification, since a thing
cannot be a dependant of its fellow. A
Manzil, on the other hand, is a mean ; — that
is, it is greater than a Bait, and smaller
than a Dar ; — for although it comprehends
everything necessary to a dwelling-place.
still it is deficient in haying no place for
cattle : a Manzil, therefore is in one respect
similar to a Dar, and in another respect
similar to a Bait ; and hence, from its simi-
larity to a Dar, the upper house is included
in virtue of its being a suborhinate part,
whenever a specification of the rights is
made ; and, from its similarity to a Bait, the
upper house is not included in the sale,
unless a specification of the rights be made.
— Some have said that, in the practice of the
present age, the upper house is necessarily
included in all the above cases ; because a
Bait (which means a house in the Persian
language) does necessarily inc'ude the upper
storey.
A porch over a road, connected with a
house, is not included in the sale of it, unless
it be expressly specified. — A PORCH over a
road, of which the beams in one end are laid
upon a Dar [or house] which is the subject
ol a sale, and in the other end upon the
opposite house, or upon a pillar, is not
included in the sale of the house, unless a
specification of rights be made in the sale ;
because the porch covering the road is held
to be of the same nature as a road. — The two
disciples have observed that if the said porch
should form the entrance into the house, it is
then virtually included in the sale.
The avenue is not included in the purchase
of an apartment of a house. — nor wells or
drains in the purchase of lands , un!ess the
appendages be expressed in the contract. — IP
a person purchase a room fBait] in the house
[Dar] or dwelling-pltce [Manzil], he is not
entitled to the use of the road, unlet* he
have stipulated the rights and appendages,
or the great and small belonging to it. — In
the same manner, in the sale of land, a well
or drain is not included, unless by a speci.
fication of the rights or appendages ; because
they are not considered as a part of the
ground : but as a dependant on it. — It is
otherwise with respect to a lease, for that
virtually includes the well and road without
any specification, because the object of a
lease is an usufruct, which is not, to be
obtained hut by the use of the road and
well ; and it is not a custom amongst farmers
to rent a road or a well. But the object of a
sale may be answered without the necessity
of including the road or well, since it is
customary, amongst purchasers, to sell and
trade with the subjects of their, purchase,
and to dispose of them into the hands of
another ; whence an advantage is derived
from the transaction, without the road or
other appendage being included.
CHAPTER X
OF CLAIM OF RIGHT (RREFEPRED BY BOTHERS
TO THE SUBJECT OF / SALE)
A female slave claimed after having pro-
duced a child whilst in the purchaser's pos-
session, is, together with her child, the pro-
perty of the claimant, provided the claim be
established by evidence : —but if the claim be
supported by the purchaser's acknowledgment
only the child is not his property. — IF a
female slave, being sold, bring forth a child
whilst in the purchaser's possession, and
another person afterwards establish, by wit-
nesses, that she was originally his property,
and had not belonged to the seller such per-
son is entitled to the female slave, and also
to the child. — IF, however, the proof be estab-
lished by the acknowledgment of the pur-
chaser, the claimant is in this case entitled
to the female only, unless he also speci-
fically include the child in the claim, in
which case the acknowldgment of the pur-
chaser entities' him to both. The distinction
between a case of evidence and a case of
acknowledgment is, that testimony is abso-
lute proof, being adapted for the elucidation
of the fact. By evi ience, therefore, it is
manifested that the slave belonged to the
claimant ab initio, that is to say, from a
time prior to the purchase of her ; and as,
at that period, the child was a dependant
part of her (since it had not issued from the
womb), it follows that the claimant has a
right to it as well as the mother. —
Acknowledgment, on the contrary, is defec-
tive proof, since it establishes the right of
property of the thing claimed in the claim-
ant, purely from the necessity of veriyfying
acknowledgment ; because an ^ acknowledg-
ment is a declaration ; and if the establish-
ment of the right of poperty did not in any
degree take place, the declaration must of
course be false,— Now this consequence may
BOOK XVI.-CHAP. X ]
SALE
295
be prevented by the establishment of the
right of property at the time of the acknow-
ledgment ; and the child, at that period, not
being a dependant part as having issued
from the womb, is therefore not included in
the property of the claimant. — Some have
said that, in case of the establishment by
testimony, when the Kazee issues his decree
for the claimant to take the slave, the child,
from its dependance, is virtually included;
and that there is no necessity for a speci-
fication of it in the decree. — Others, again,
have said that the specification of the child
is an absolutely necessary condition, of which
the adjudication in several analogous cases
is a clear proof. Thus Mohammed has de-
clared that where the Kazee decrees the oii-
sinal to any person, without having any
subordinate pirts are not comprehended in
the decree Where, also, in a case of a
claim of right to a female slave, purchased
bv another, the Kazee decrees the slave to
the claimant, and it so happens that the
child she has brought forth is in the hands
of some other person than the purchaser,
such child is not comprehended in the de-
cree.
A person selling another as as s'ave, who
afterwards proves to be free, must restore the
purchase-money : — or if the alleged slave
have excited the purchaser to the bargain,
he must restore it in defect of the seller. —
IF a person purchase a slave, and the slave
afterwards prove by witnesses that he is tree
notwithstanding that, at the time of con-
cluding the contract, he had said to the
purchaser, "purchase me, for I am a slave,"
— and the seller be present, or absent at a
place that is known, the purchaser is entitled
to recover the price from him ; but if the
seller be absent, and the place of his sojourn-
ment unknown, the purchaser is in that case
entitled to take the price from the slavfe,
who is to recover the same from the seller
whenever it may be in his power.— If on the
contrary a person accept of a slave in Dawn,
on the cround of the slave saying to him,
"accept of me in pawn, for I am a slave,"
and it afterwards appear that he is free, the
pawnee is not in that case at liberty to take
payment from the slave of the sum due to
him, whether the pawner be absent or present
but must at all events seek it from the
pawner, Aboo Yoosaf holds that the same
rule also obtains in the case of sale, — that is,
that the purchaser has no right, under any
circumstances, to an indemnification from
the slave, because he has no right to take
the price from any but the seller, or his
security, — and the slave is neither of these
but merely a liar, which does not superinduce
responsibility.— The argument of the two
disciples is that, in the case in question, the
purchaser engaged in the contract on the
sole ground of confiding in the slave's de-
claration, "purchase me, for I am a slave ;"
and hence it follows, that where a slave has
been guilty of a deceit, he is liable for the
price, in case the recovery from the seller be
impracticable, in order that the injury occa-
sioned by his deceit may bi removed from
the purchaser, The recovery from the seller,
however, is impracticable only in case of his
being absent at a place which is not known,
—As, moreover, sale is a contract of exchange,
it is ppssibie to render the director of it
responsible for the consideration (namely,
the price), when the subject is lost or de-
stroyed to the purchaser, this being what a
contract of sale requires. It is otherwise
with respect to pawn, as that is not a con-
tract of exchange, but merely a contract of
security for the receipt of the substance of
the pawnee's right ; for which reason it is
lawful to give a pawn as security for the
price, in a Sirf sale, or for the goods, in a
Sillirn sale, although an exchange with
respect to either of these be unlawful ;— in
other words, if a pledge should be destroyed
whilst in the possession of the pawnee, the
pawnee is in that case held to have received
the substance of his ii»ht ; — whereas, if a con-
tract of pawn were in the nature of a contract
of exchange. It would follow that in these
cases an exchange for the price in a Sirf
sale, or for the goods in a Sillim sale, had
been made previous to the seisin and this
is unlawful. The person, therefore, who
directs others to enter into a contract of
pawn cannot be rendered responsible for the
debts to which the pawn is opposed, Ana-
logous to this is a case where the master of
a slave says to merchants, "trade with this
slave of mine, for I have privileged him to
trade ;" and the merchants having traded
with him accordingly, it becomes afterwards
known that the said slave is the property
of another ; for in this case the creditors
have a right to receive payment of th^ir
debts from the master. — It is to be observed
that the difficulty, in this case, arises from
the tenets of Har.ee fa, for, according to him,
a claim is a necessary condition for the
establishment of freedom ; and here a claim
is out of the question, since, if the slave,
after the acknowledgment of his slavery,
should assert a claim to his freedom, he
would be guilty of prevarication ; and pre-
varication is destructive of the validity of
a claim. It is therefore impossible that
after his own declaration, his freedom should
be made apparent ; and hence the statement
of this case, according to the tenets of
Haneefa, is erroneous. — But, in reply to
this objection, some have observed that the
proper statement of this case is,— that a
person purchases a slave at a time when the
slave himself said, "purchase, me for I am
a slave/' and if afterwards appears that the
person so purchased was originally free ;
for this statement is strictly agreeable to
the tenets of Haneefa, since (according to
him) the claim of freedom is required as a
condition only in the case of a freedman, and
not in that of a person originally free —
Others again maintain that the claim of
freedom, in this statement of the case also
296 SALE
is a necessity condition ; and that the
prevarication so occasioned is not destructive
of the validity of the claim ; for generation
is a concealed circumstance ; and the person
not knowing that his mother was frcie at the
time of his generation, he on that account
declared himself a slave ; but afterwards,
attaining a knowledge of his mother's free-
dom at that period, he therefore claims his
freedom — If it be thus stated that, a person
having purchased a slave, it afterwards
appears that the person so purchased was
free, as having been emancipated by his
master such statement is correct, as it does
not involve prevarication, since the master
is empowered to emancipate his slave. — This
case is therefore, in fact, the same as if a
woman should purchase her divorce from her
husband, and should afterwards establish,
by witnesses, that previous to such bargain
he had divorced her three times ; or as if a
Mokatib should establish, by witnesses, that
previous to the contract of Kitabat his
master had emancipated him ; — for in both
these cases the claim and the evidences are
admitted, notwithstanding the prevarication :
and so also in the preceding case. The
ground of this is that the master being
competent to emancipate his slave, he may
have done it during his absence, and the
slave may afterwards have preferred his
claim immediately on its coming to his
knowledge ; and on this supposition the
prevarication is not held to be destructive.
Case of claim to an immoveable property
after a composition with respect to it. — IF a
person claim a right in a house, in an in-
definite manner and then compound his
claim with the possessor of the house for an
hundred dirm?, and a third person afterwards
prove aright to the whole of the house ex-
cepting the quantity of a cuSit, for instance,
in that case the possessor of the house has no
right to any restitution from the person with
whom he entered into the composition ; be-
cause that person, having before made an
indefinite claim without explaining the ex-
tent of it, may now lawfully declare it to
have been the quantity excepted by third
person. — If, on the other hand, a person,
having claimed the whole of a house, should
then compound with the possessor for an
hundred dtrms, and another person should
afterwards lay claim to part of the house, in-
that case the possessor of the house is entitled
to a restitution of a part of the sum he had
paid in composition, proportionate to the
amount of the second claim. — It is to be
observed that a composition of an undefined
right for defined property is lawful, because
the annulment of an undefined right cannot
occasion contention.
Section
Of Fazoolee Beea, or the Sale of the Property
of another without his Consent.
A sale contracted without authority may
be dissolved by the proprietor of the subject.—
[Voi. II.
IF a person sell the property of another
without his order, the contract is complete,
but it remains with the proprietor either to
confirm or dissolve the sale as he pleases
Shafei is of opinion that the contract, in this
case, is not complete ; because it has not
issued from a lawful authority ; for that is
constituted only by property or permission,
neither of which exist in this case. The
arguments of our doctors are, that such a
sale is a transaction of transfer, performed
by a competent person with respect to a fit
subject : it is therefore indispensable that
the contract be regarded as complete ; for,
besides that there is no injury in this to the
proprietor (as he has the prower of dissolving
it), it is attended with a great advantage to
him, inasmuch as it frees him from the
trouble of seeking for a purchaser, settling
the price with him, ani other matter. —
Moreover, it is atteuled with an advantage
to the seller, whose word it preserves sacred,
and to the purchaser, to whom it confirms a
bargain, with which, as having voluntarily
concluded it, he may be supposed to be
pleased. — In order, therefore, to obtain these
advantages, a legal power is established in
the seller of another's property, more espe-
cially as the consent of that other has been
given by implication, since a wise man natu-
rally assents to a deed attended with advan-
tage to himself. — It is to be observed that if
is requisite that the proprietor give his con-
sent on the condition of the subject of the
sale, and the buyer and seller being extant ;
because, as his assent is a deed relative to
the contract ; it is necessary, of consequence,
when he gives it that the contract be in
existence ; and the existence of the contract
depends on the existence of the parties, and
of the subject of the sale.
If assented to, the price is the property of
the proprietor, and a deposit with the Fazolee
seller. — WHEN the proprietor of an article,
in a Fazoolee sale, gives his assent to it, the
price becomes his property, and remains in
the hands of the Fazoolee seller as a deposit,
in the same manner as if he had been an
agent for sale ; because the assent is equi-
valent to a previous appointment of agency.
Who is at liberty to dissolve the contract
without his concurrence. — IT is in the power
of the Fazoolee, or person who sells the pro-
perty of another without authority to dis-
solve the contract without having obtained
the consent of the proprietor. It is other-
wise in the case of a marriage contracted by
a Fazoolee, as that cannot be dissolved
without the ccnsent of the person on whose
account he concluded it.
IT is to be observed that the existence
of the parties, and of the subject of the
sale, is sufficient towards the consent of
the proprietor only in case of the price being
in money ; for, if it be stipulated in goods,
then the existence of the price also is a
necessary condition — In this case, however
the consent of the proprietor is not an
assent to the contract of sale (because the
BOOK XVI.— CHAP. X.]
SALE
297
sale is, in this instance, a sort of purchase
and a Fazoolee purchase does not rest upon
the assent of the person on whose account
the Fazoolee made the purchase, inasmuch as
the purchase is considered in law to have
been made for himself), but merely an assent
to the Fazoolee purchaser making over the
property he has agreed to give in return for
the property which has been constituted the
price of it This price, therefore, consisting
of goods, becomes the property of the Fazoo-
lee, who remains responsible for th<» subject
of the sale, payable in a similar, if it be of a
nature that admits of similars, — or, if other-
wise, for the value of it.
IF the proprietor should die, then the con-
sent of the heirs is of no efficacy in the con-
firmation of the Fazoolee sale, in either case ;
that is, whether the price have been stipu-
lated in money or in goods ; because the
contract rested entirely on the personal assent
of the deceased.
If the proprietor die, and the subject be
not specified, the safe is invalid. — IF a person,
having given his assent to a Fazoolee sale,
should afterwards die, and it be not known
whether the subject of the sale was extant
or not when he gave his assent, in that case
(according to one opinion of Aboo Yoosaf,
which has been adopted by Mohammed), the
sale is valid, because of the probability of the
existence of the subject of the sale at the
period of assent. Aboo Yoosaf, however,
afterwards receded from this opinion, and
declared this sale to be unlawful, because of
the doubt with regard to the existence of the
subject of the sale, which in his opinion is
destructive of its legality.
The emancipation, by the original pro-
prietor\ of a slave usurped and sold bv the
usurper, is valid. — IF a person usurp a slave,
and sell him to another and, that other
haying emancipated him the original pro-
prietor afterwards confirm the sale, in thk
case the emancipation, according to Haneefa
and Yoosaf, is valid, upon a favourable con-
struction. Mohammed maintains that it is
not valid, since an emancipation cannot be
made except with relation to property, in
conformity with a tradition of the Prophet
to that effect ; and the purchaser was not
proprietor of the slave at the time of the
emancipation, because the validity of the
sale then rested on the assent of the pro-
prietor ; and a suspended sale does not
endow with a right of property. Where,
moreover, the right of property is confirmed
by the master's assent to the sale, it becomes
confirmed, first in the usurper and then in
the emancipator, by a retrospect and devolu-
tion ; and a right of property thus confirmed
is established in one shape but not in another
shape ; and manumission is not valid except
where the right of property exists in every
shape, in conformity with the tradition above
cited. Upon this principle it is that emanci-
pation is not lawful where a person, having
suurpeda slave, gives him his liberty and
afterwards makes a retribution to the pro-
prietor ;— or, where a person, having pur-
chased a slave, allowing an option to the
seller, emancipates him, and afterwards re-
ceives from the seller a confirmation of the
sale. On the same principle also the sale
is unlawful, where a person, havins pur-
chased a slave from an usurper, sells him
again to another, and the proprietor after-
wards confirms the sale of the usurper ;— and
emancipation is likewise invalid, where a
person, having purchased a slave from an
usurper, ernes him his liberty, and the
usurper afterwards makes a retribution to
the proprietor. The argument of the two
Elders is that, in the case in question, a sus-
pended right of property is established in the
purchaser in virtue of an absolute deed in-
stituted for the purpose of enjoyment of pro-
perty, namelv an absolute sale without any
stipulation of option ; and as, in the estab-
lishment of this right of property, no injury
results to any one, it follows that the eman-
cipation of the purchaser (which rest* upon
his right of property), is also established in
suspense, in the same manner as the right of
property. When, therefore, in virtue of the
assent of the proprietor, the right of pro-
perty operates, it follows that the suspended
emancipation also operates ; -in the same
manner as where a person purchases a slave
in paarn from the pawner, and afterwards
emancipates him, — in which case the emanci-
pation remains suspended in its operation, as
well as the right of property of the purchaser,
until the consent of the pawnee be obtained,
or the pawn be redeemed by the pawner : — or,
as where an heir emancipates a slave belong-
ing to the deceased, at a time when the estate
was encumbered with debt,— -in which case
the emancipation remains suspended in its
operation until the debts be liquidated when
it immediately takes place. It is otherwise
where an usurper, having emancipated the
slave he had usurped ; afterwards makes a
composition with the proprietor ; because
usurpation does not entitle to the enjoyment
of property :— or, where a purchaser of a
slave, under a sale stipulating a condition of
option to the seller, emancipates the said
slave ; because in that case the sale is not
absolute, and the existence of the option is
preventive of the operation of the right of
property in the purchaser : —or, lastly, where
a person, having purchased a slave from an
usurper, sells him to another, and afterwards
the original proprietor gives his assent to the
sale of the usurper ; because in virtue of the
assent of the proprietor the right of property
vests in the purchase, upon such assent
being signified but not before : the right of
property, moreover, of the second purchaser
was suspended ; and consequently, as the
right of property vests in the first purchaser
now (and not before), it necessarily follows
that such suspended right of property becomes
null.
The fine incurred for maiming a slave sold
under a usurpation goes to the purchaser f if
the former proprietor assent to such sale.—
298
SALE
[VOL. II.
IF a person purchase a slave from one who
had usurped him, and the slave be maimed*
by any person whils in the possession of
the purchaser, and he [the purchaser] exact
the fine of trespass from the maimer, and
the original proprietor then give his assent
to the sale, — in this case the fine is ths pro-
perty of the purchaser ; because the slave is
in such case considered as the property of
the purchtser, from the period of the pur-
chase, whence it is evident that he was so at
the time of the maiming and this is an
argument against he doctrine of Mohammed,
exhibited in the preceding case, since as the
fine is, in this instance, the right of the pur-
chaser solely in virtue of the establishment
of right of property in him from the period
of the purchase, it follows that the emanci-
pation of the purchaser would be valid for
the same reason. The reply of Mohammed
to this is, that a right of property established
in one shape only (that is, in an incomplete
manner) is sufficient to entitle to a fine, but
not to the performance of emancipation,
which requires that the right of property be
perfect and complete. It is to be observed
that although the fine, in this case, be the
right of the purchaser, still if it exceed the
half of the price, it is requisite that he be-
stow the excess in charity ; because the fine
for the destruction of the limb cannot exceed
half the price, as the fine ot trespass for
maiming a freeman is one half of the fine of
blood, and consequently, the fine for main-
ing a slave is one half of his value. Now
nothing can be included in the responsibility
beyond what may be opposed to the price,
and implicats in it. Any excess, therefore,
over half the price, is an acquisition to which
the^ proprietor is not entitled, or to which his
claim is doubtful and is therefore not per-
fectly lawful to him.
The resale of a slave purchased from a
usurper is rendered invalid by the proprietor
signifying his assent to the first tale : but if
the slave perish in the interim the assent is
of no account. — IF a person purchase an
usurped slave, and sell him to another, and
the proprietor afterwards give his assent to
the first sale, in that case the second sale is
invalid ; because the right of property then
established in the first purchaser destroys the
suspended right of property of the second
purchaser, as has been already explained ;
and also, because there is an unfairness in it,
since it is possible that the proprietor may
not give his assent to the sale. But if, after
the sale of the slave by the purchaser, he
should then either die or be killed, and the
proprietor afterwards give his assent to the
sale, such assent is not valid ; because the
existence of the subject of the sale is re-
quisite to the assent, and that no longer
exists in either instance.
OBJECTION — The reason here alleged is a
•By dismemberment of a limb, such as
the hand.
valid one where the slave dies a natural
death ; but it is not so where he is slain, be-
cause in that case the slave, in virtue of the
existence of the amercement, is considered,
as it were, to be himself in existence, — for if
a slave, having been sold by a valid contract,
should afterwards be murdered whilst in the
possession of the seller, still the sale is not
null, since the consideration for the subject
of the sale (namely the amercement) is ex-
tant,— whereas, if he die a natural death in
the hands of the seller, the sale is null. It
would therefore appear that the assent in
case of the murder of che slave, is of no effect.
REPLY. — In the case in question it is not
possible to consider the fine as the right of
the purchaser, since not having been the
proprietor of the slave at the period of the
murder, he can have no righc to the amerce-
ment, nor can the slave, in virtue of the
existence of the amercement, be considered
as extant with respect to him. The slave,
therefore, is not extant with relation to him,
either actually or virtually, ft is otherwise
in the case of a valid sale, because there the
purchaser had acquired a right of property
to the slave which may be transferred to the
consideration for him ; and consequently the
slave may be considered as extant with
respect to him.
An article purchased through the medium
of an unauthorized person cannot be returned
to the proprietor, although the purchaser prove
the want of authority, or the proprietor's
assent to the sale : — but if the seller avow his
not being authorized, the sale is null. — IF a
person sell a slave, the property of another,
and the purchaser establish by witnesses
that the seller had acknowledged that he
had sold him without the assent of the pro-
prietor,— or, that the proprietor had declared
that he had not given his assent to the sale
a,nd the purchaser wish to return the slave,
the evidence addured by him is not to be
admitted ,* because there is a prevarication
in his plea, since his act of purchasing the
slave amounts to a declaration of the validity
of the sale, and the plea he afterwards pre-
fers is contradictory of this : his plea, there-
fore, is not valid ; and testimony is to be
taken only where the plea it tends to establish
of a valid nature. If, however, the seller
should declare before a magistrate that he
had made the sale without the authority of
the proprietor, the sale in that case becomes
null, provided the purchaser desire the dis-
solution of it, because the inconsistency of
the purchaser is no bar to the validity of the
declaration of the seller, and when the parties
both concur in the same wish the sale is
rendered null of course : — but the concur-
rence of the purchaser is a necessary con-
dition. What is here advanced, tbat "the
evidence adduced by the purchaser is not to
be admitted," is the doctrine of the Jama
Sagheer, The compiler of the Hedaya
observes t^ at it is mentioned in the Zeeadat,
that if a person purchase a female slave (for
instance) for one thousand dirms, and take
BOOK XVI.— CHAP. XI]
SALE.
299
possession and pay the price, and afterwards,
in consequen e of another person claiming
her as his property, and asserting his right
to her, surrender her to him,— and he [the
purchaser] establish, by witnesses, that the
seller had acknowledged that the salve was
the porperty of the said claimant, the testi-
mony so given is inadmissible. Bet we m
these two cases, therefore, there is an evident
contradiction which, however, our modern
doctors thus account for, In the case alluded
to in the Jama Sagheer, the slave was in the
possession of the purchaser when he produced
the witnesses ; but in that from the Zeeadat
the slave was in the possession of the claimant
and not of the purchaser ; and the condition
on which a restitution of the purchase -money
from the seller is warranted (namelv, non-
existence of the subject of the sale with rela-
tion to the purchaser) not existing in the first
case, but existing in the second, the evidence
in the first case is therefore rejected, and in
the second it is admitted.
In the sile of immoveahe property by an
unauthorized person, the seller is not respon-
sible.— IP a person sell a house belonging to
another, without his permission ; and make
delivery of it to the purchaser, and after-
wards declare that he had sold it without the
permission of the owner, then (according to
Haneefa and the last opinion of Aboo Yoosaf)
the seller is not responsible* The first
opinion of Aboo Yoosaf was that the seller
is responsible, and this opinion has be«»n
adopted bv Mohammed. This case is one of
the examples of usurpation over imm^veable
propertv, concerning which there is a diffe-
rence of opinion, as will be fully explained
under the head of Usurpations.
CHAPTER XI
OF SILLIM SALES
Definition of Sillim — KADOOREE explains
Si Him literally to signify, a contract involv-
ing a prompt delivery in return for a distant
delivery. In the language of the LAW it
means a contract of sale, causing an imme-
diate payment of the price, and admitting a
delay in the Delivery of the wares. In this
kind of sale, the wares are denominated
Mooslim-fee-hee,t the price Rasal-Mal.J the
seller Mooslim-ali-he.§ and the purchaser
Rubul Sillim.1 . .
A Sillim sale is lawful.— A SILLIM sale is
authorized and rendered legal bv a particular
passage in the KORAN, and also by an express
declaration of the Prophet prohibiting any
•Meaning that the proprietor is not to
look to the seller for the price of his house,
but to the purchaser ;— or, that the seller is
not security for the purchaser.
tLiterally, the advanced on account of.
JThe capital stock.
§Literally, the advanced to.
5Literally, the advancer.
one from the sale of what is not in his
possession, but authorizing a Sillim sale.
It is to be observed that Sillim sale is
contrary to snalogy, because of the non-
existence of the subject of it, since it is a
sale of a non-existent article, as the subject,
in a Sillim sale, is merely the thing for which
the advance is made, and that does not appear,
Analogy, however, is abandoned in this in-
stance, because of the text and tradition
above cited.
In all articles af weight (except dirms
and deenars), measurement of capacity, —
A SILLIM sale, with relation to articles of
weight, or measurement of capacity, is law-
ful; because the Prophet has said : " Who-
sover enters into a SILLIM sale with you,
let him stipulate a determinate weight and
measurement, and a determinate period of
delivery," Dirms and deenars, however,
are not included in the description of articles
of weight, because both of these are repre-
sentatives of price, and in a Sillim sale it^is
requisite that the subject of it be otherwise
than a representatives of price. Hence if a
person should enter into a Sillim sale, stipu-
lating the immediate payment of ten yards
of cloth to the seller in lieu of ten dirms to
be delivered to him by the seller at a future
period, the Sillim sale so contracted is invalid.
Some have said that this s*le is absolutely
nuM. Others, again, have said that although:
considering it as a Sillim sale, it is certainly
invalid, still it is not null, since it mav be
executed so as to answer the views of the
parties as far as possible, by considering it
simplv as a sale of cloth for a price payable
hereafter : more especially since, in all con-
tracts, the spirit is what is to be attended to.
The former, however, is the better opinion;
because, although sales may lawfully be
rendered valid in every possible degree, with
relation to the things concerned which the
parties have contracted, yet as, in the case
in question, the things so contracted for are
dirms and deenars, which from an express
prohibition are incapable of being made the
subject of a Sillim sale the contract with
relation to them cannot in any degree be
rehHered valid.
Longitudinal measurement and tale. — A
SILLIM sale with respect to articles of longitu-
dinal measurement, such as cloth, or the like,
is lawful, because is it possible to define them
exactly by specification of the number of
yards in respect to the length and breadth,
and the duality and workmanship of it. (By
the qualitv is meant the fineness or coarse-
ness: and by the workmanship the looseness
or closeness of the texture.) The specification
by a recital of these particulars, moreover,
is requisite, in order that ignorance may
be avoided : it is therefoie essential to the
validity of the contract. In the same man-
ner also, a Sillim sale is lawful with respect
to all articles of tale, which do not essentially
differ in their unities, such as eggs and
walnuts; because, in all articles of tale
between the unities of which the difference
300
SALE
[VOL. II
is trifling, the rate is ascertainable, tht
quality definable, and the delivery to the
purchaser practicable : a contract of Sillim
therefore; with respect to such articles is law
ful: In articles of this nature, also, the greai
and the small are considered as the same,
because mankind have agreed in making
no account of the difference. It is otherwise
with respect to melons and pomegranates
because the difference in them is considerable.
It it to be observed, that where there is a
difference in the individuals of any kind it
may be known whether such difference be oi
any accouns or not by the effect it has no the
price, Thus articles of which the individuals
of the same kind bear a diff rent price are
considered as different ; but where the price
is the same with respect to the individuals
they are considered as similar, it is related,
as an opinion of Haneefa, that ostrich eggs
are not similars, as they bear different prices.
IT is to be observed that in the same manner
as a Sillim contract is lawful with respect to
similars of tale according to number, so is it
lawful with respect to them according to a
measurement of capacity, Ziffer has said
that it is not lawful according to a measure-
ment of capacity, as that does not apply to
articles of tale ; and it is also a tenet of his,
that a Sillim sale with respect to articles of
tale is unlawful because of the difference
between the individuals of the kind The
reasoning of our doctors is, that quantity is
sometimes ascertained by number and some-
times by measurement of capacity ; and that
similars of the same species being considered
as articles of tale only because of the consent
and practice of mankind, they may for the
same reason be subjected to a measurement
of capacity by the consent of the parties. A
Sillim sale is likewise lawful with respect to
Faloos. Some have said that this is the
opinion, of the two disciples : but that
Mohammed is of a different opinion, since,
according to his doctrine, Faloos are repre-
sentatives of price. The doctrine of the two
disciples on this head has been already ex-
plained in treating of Usury.
It is not lawful with respect to animals. —
A SILLIM sale with respect to animals is
unlawful, Shafei deems it lawful, as the
article may be ascertained by an explana-
tion of the genus, the age, the species, and
the quality : after which only a small dif-
ference can take place, in the same manner
as in the case of cloth. Our doctors, on the
other hand, argue that after such explana-
tions the difference may still be great with
respect to various qualities and hidden
circumstances, which must occasion a con-
tention : in opposition to the case of cloth,
because, as being the workmanship of man,
there is rarely any material difference in
two pieces of the same kind. Besides, it is
recorded in the Nakl Saheeh that the Prophet
forbade the Sillim sale of anirrals : and this
prohibition extends to every species of
animals, even to sparrows.
Or the par t$ of animals, or sfeins, firewood
or hay, unless the quality be ascertained. —
SILLIM sale is not lawful with respect to the
parts of an animal, such as the head, or the
feet, because those are not similars of tale,
nor is there any measure by which the size
of them might be ascertained. In the same
manner also, a Sillim sale is unlawful with
respect to skins; according to number, or
firewood according to bundles, or hay ac-
cording to packages, except the quantity be
ascertained by specifying the length of the
string that ties them : for then the Sillim
sale with respect to them is lawful, provided
the mode of binding be not such as to create
a difference.
Nor unless the subject ke in continued exist-
ence until the time of delivery. — A SILLIM
sale is not lawful, unless the subject of it be
in existence, from the conclusion of the con-
tract, until the stipulated period of its de-
livery. Hence the sale is not lawful if the
subject be not in existence at the formation
of the contract but be extant at the period
stipulated for its delivey : or vice versa ; —
or if, being extant a$ the formation of the
contract, and the time of delivery, it should
lave been non-existent at some period of the
intervening time. Shafei maintains that the
existence at the period of delivery is suffi-
cient whether the articles have been extant
Before or not ; because in this case the seller
is capable of delivery at the period on which
delivery is required. The arguments of our
doctors upon this point are twofold. — FIRST,
a saying of the Prophet, " Ye shall not sell
fruit by way of SILLIM until their ripeness be
apparent." which evidently implies that the
capability of the delivery from the formation
of the contract is necessary. SECONDLY, the
capability of delivery is founded on the arti-
cle being fit to be taken possession of by the
puchaser, and it is therefore indispensable
hat it be in uninterrupted existence from
he formation of the contract to the instant
)f delivery.
IF, at the promised period of delivery, the
ubject of the Sillim be lost or disappear, the
nirchaser has in that case the option of dis-
olving the contract, and receiving back the
:>rice from the seller,— or of waiting until
he subject of the sale may be recovered,
This is analogous to the absconding of a
lave after the sale of him but before the
lelivcry, in which case the purchaser has
ne power of either dissolving the contract
r waiting unil the slave may be recovered.
It is lawful with respect to articles which
Ithough perishable in their nature, are kept
n a state of preservation, or in situations
juhere the article may always be had.-^A
ILLIM sale is lawful with respect to dried
nd salted fish, provided it be according to a
tandard weight, and the species be known ;
ecause in this case the subject of the sale is
fan ascertained nature, the quality is de-
ned, and the delivery is practicable, since
uch fish is always fit to be taken possession of.
^his species, of sale, however, is not aHowed
ccording to tale, since the individuals
BOOK XVI.— CHAP, XL]
SALE
301
amongst fi«;h arc not similar : — nor is it
allowed with respect to fresh fish,— unless
at such a particular period of the year as
renders the procurement of them certain, in
which a Sillinn sale with respect to them,
according to a fixed weight, is lawful, pro-
vided the soecies be defined. The reason of
this is that fresh fish is not always to be
had, being sometimes withheld, in the winter
season, in consequence of the water being
frozen. In any city however, where fresh
fish are always to be procured, a Sillim sale
with respect to them is psrfectly lawful
provided it be according to weight and not
by tale, — It is related, as an option of
Haneefa, that it is not lawful to make a
Sillim sale with regard to the flesh of fish of
so large a nature as to occasion their flesh to
be cut in the same manner as that of oxen
or coats, for instance, because, being illegal
vxit'i respect to all other animals, it follows
that it is likewise so with respect to fish, of
which the flesh is equivalent to that of any
other creature.
It ts not lawful with respect to flesh-meat. — •
A SILLIM sale of fish is utterly unlawful,
according to' Haneefa. The two disciples
maintain that it is lawful with respect to the
flesh of quadrupeds, provided a notification
be made of the flesh of known and deter-
minate part (such as the haunch, for in-
stance), and that a description be given of
the qualities (such as fatness or leanness, for
instance) ; because in this case the weight of
the flesh is determined and the qualities are
ascertained, — whence it is that, in case of its
destruction, a compensation of a similar is
given, and also, that it is lawful to borrow it
according to weight, and that usury takes
place with regard to it. It is otherwise with
respect to the flesh of birds, for a Sillim sale
of that is unlawful, since it is impossible to
specify the flesh of a particular part inas-
much as it is not a custom to separate the.
parts of birds in tale, because of their small-
nejs. The agrunnent of Haneefa is that the
quantity or flesh is uncertain, because of the
difference occasioned by the bones, in regard
either to their number or grossness ; and also,
because of the difference which takes place
with respect to the fatness or leanness, as
animals are fat or lean according to the sea-
sons ; and as this uncertainly is a cause of
contention, such sale is therefore inadmis-
sible ; — and for the same reason, the Sillim
sale of flesh without bones is not lawful.
This is approved. With respect to the cases
quoted by the two discip1es of a compensation
of a similar being made for flesh in case of its
destruction, and of it being lawful to borrow
it, the legality of such compensation, &c., is
not admitted : but admitting the legality,
still the principle on which the compensation
of t similar proceeds is evidently because the
retribution of a similar is more equitable than
that of money, since money answers only to
the object, whereas the similar answers both
object and appearance ; and the legality of
borrowing flesh is because a .seisin made by
borrowing is an obvious and perceptible one ;
in opposition to that of a Sillim sale, which
rests upon description.
The veriod of delivery must be specified — •
A SILLIM sale is not lawful unless the period
for the delivery of the wares be fixed. — Shafei
has said that it is lawful in either case (that
is whether the period of delivery be fixed
or not) j since it is recorded in the traditions
that the Prophet authorized Sillim sales in
an absolute manner, without any restrictions
regarding the limitation of the period. The
arguments of our doctors upon this point are
twofold. — FIRST, the Prophet has ordained
that all Sillim sales shall be made with a
stipulation of a fixed period for delivery. —
SECONDLY, the Prophet has prohibited man
from selling what is not in his possession,
but has nevertheless authorized and rendered
legal Sillim sales, on this principle, that poor
people stand in need of such engagements,
in order that, by means of the money they
receive in advance, they may acquire the
subject of the sale, and deliver it to the pur-
chaser. It is therefore rtquisite that a fixed
period be stipulated, because if the seller
were liable to an instantaneous delivery on
demand, the principle on which the legality of
such sale is founded would not be answered.
Moreover, an indefinite period is unlawful,
because of the uncertainly ; in the same
manner as in a sale where the price settled
is to be paid at a future period without defin-
ing it. It is to be observed that the smallest
term that can be fixed for a delivery, in a
Sillim sale, is one month. — Some allege th 2
smallest to be three days ; others again
fixed it any term exceeding half a day. The
first opinion is authentic ; and decrees are
passed accordingly.
Private standards of measurement cannot
be used in it. — THE stipulation of a private
measure of capacity or longitude is not law-
ful in a Sillim sale, because of the uncer-
tainty, founded on the possibility of the
criterion being lost in the interval between
the conclusion of the contract and the
delivery ; as has been already explained,
It is necessary also that the instrument of
measurement be of a substance not liab/e
either to contract or expand, but that it
be of a fixed nature, such as a large cup.
Leathern bags, however (such as those in
which water is contained), are allowable for
this purpose, according to Aboo Yoosaf, be-
cause of the practice of mankind.
It is not lawful under a restriction of the
subject to the produce of u particular place.
— A SILLIM sale, with respect to the grain of
a specific village, or the fruit of a specific
orchard, is not lawful ; for if any accident
should happen to these particular places, the
delivery becomes impracticable; such practice
has moreover been prohibited by the Prophet,
— This specification is, however, lawful, ac-
cording to some doctors, provided it be to
define the quality, as where a specification is
made of the grain of Kishmaran in Bokhara,
or of Boshakee in Fargtna.
302
SALE
[VOL. II.
And requires that the genus be specified,
and that the species, quality quantity, period
of delivery, rate and place of delivery, be
all determined. — A SILLIM sale is not lawful,
according to Haneefa, except on seven con-
ditions. I. That the genus of the subject of
the sale be specified, such as wheat or barley.
It, That the species of it be fixed, such as
wheat of a soil that is watered by means of
a canal, or order artificial mode, or wheat of
a soil watered by rain. III. That the quality
of it be fixed , such as of the best or worst
kind. IV. That the quantity of it be fixed
according to a standard of weight, or measure-
ment of capacity. V. That the period of tht
delivery be fixed, according to ordinances
in the traditions ; VI, That the rate of the
capital advanced be fixed, provided it be of a
nature definable by a rate, as where it is an
article of weight, of measurement of capacity,
or of tale,— And, VII. That the place of
delivery be fixed, provided the subject of the
sale on account of its weight, require por-
terage.— The two disciples have said, that if
the capital to be advanced be present, and ex-
hibited, there is then no need of any mention
of the rate ; and also, that there is no need of
explaining the place of delivery, since the
delivery must be made in the place where the
contract is concluded. Thus there is a dis-
agreement of opinion with respect to these
two conditions bat ween Haneefa and the two
disciples. — The argument of the two disci*
pies in support of their former position, is
that as the price is present and exhibited
the object may be obtained by a reference to
it, the case being, in fact, the same as that of
cloth stipulated as the price, in a Sillim sale
of which specification is not a requisite con-
dition, provided it be produced to view and
capable of a reference The arguments of
Haneefa are twofold FIRST, as it often
happens that many of the dirmsand deenais
are of a bad kind, and that the purchaser
during the meeting is incapable of exchang-
ing them, the seller therefore returns them ;
and a proportionate deduction being made
from the wares, the sale remains extant in a
degree proportionate to the sum received by
the seller. Now, in this case, and under such
circumstance, if the amount of the dirms
be not known ; it follows that it cannot be
known in what extent the Sillim sale exists.
SECONDLY, as it sometimes happens that the
seller being incapable of acquiring the sub-
ject of the sale, is under the necessity of re
storing the price, it follows that if this should
not have been explained, it is imposible to
judge what sum he ought to return.
OBJECTION. — These two suppositions are
merely imaginary, and therefore of no weight.
REPLY. — Imaginations, with respect to
Sillim sales, are equivalent to realities ; be*
cause such sales are of but a weak nature,
being authorized (as has been already ex-
plained) in opposition to analogy. Hence
imaginations with respect to them are of
weight ; and it is necessary that the price be
definite with respect to the rate, provided it
be of a such a kind as that the contract may
relate to rate ; but if it be cloth, the speci-
fication of a number of a yards is not required
as a condition, since these are not considered
as a rate, but the description.
As, also (according to Haneefa), an expla-
nation of the rate of the price is an essential
condition to the Sillim sale, it follows that
(agreeably to his tenets) a sale of this nature
is not lawful where the wares, being of
different kinds (such as wheat and barley)
are opposed to any specific sum (one hundred
dirms, for instance), without a separate price
being specified in opposition to each of the
kinds, because the amount being here op-
posed generally to both, the particular price
of each remains unknown. — In the same
manner also, it is not lawful where, the price
being of different kinds (such as dirms and
decnars), an explanation is given of the
quantity of one of these kinds and not of
the other ; for in this case the contract of
Sillim is not lawful in the degree to which
an unknown quantity is opposed to it ; and
consequently, it is also invalid with respect
to the degree in which it is opposed to a
known quantity, since one contract relates
to both. According to the two disciples both
these modes of Sillim are lawful, since in
their opinion an exhibition of the price with-
out any explanation of the rate is valid. —
The argument of the two disciples in sup-
port of their second position is, that the place
of the contract is fixed for the delivery, be-
cause the contract, which is the cause of the
delivery, did there take place ; the case is
therefore the same as that of a borrower or
usurper, on each of whom it is incumbent
to deliver what he may have borrowed or
usurped at the place in which these deeds
took place. — The reasoning of Haneefa is,
that as the delivery of the subject of a Sillim
sale is not immediately incumbent, the place in
fohich the contract is concluded is not absolutely
fixe 'as the place of delivery. —(It is other-
wise in cases of loan or usurpation, since the
repayment of the loan and the restitution of
the usurped at tide are incumbent upon the
instant). — Now as the place of concluding the
contract is not necessarily fixed as the place
of delivery, it is requisite that some place be
specified, as the uncertainty in this particular
may otherwise produce a contention, since the
price of goods varies in different places : it is
therefore indispensable that a place of de-
livery be specified by the parties Igno-
rance, moreover, with respect to the place
of delivery, is equivalent to uncertainty with
respect to the quality of the goods or the
quality of the price : and accordingly, some
of our modern doctors have said that if a
contention arise between the parties with
respect to the place of delivery, then, agree-
ably to the tenets of Heneeia, their oaths
must be severally taken: as in the case of
a contention regarding the quality of the
3rice : — whereas, agreeably to the tenets of
;he two disciples, their oaths are not to be
taken Others, 'again, have said that, agree-
BOOK
. XI.]
SALE
303
ably to th* tenets of Hne?fa, th?ir oiths are
not to Se taT<?i ; w'le^as a^rarib'y t? th;
ten tsof the t\vo discb'e^, th*ir oiths ^re
to be tak *n b ^a is \ a::or ling to th^m, the
plic2 of 1 li '>ry Is virtually involved in the
cin'ran its-If, an I on-eq i-ntly a confn-
tion with respect to it induce the neces-
sity of the oaths of both parties, in the
same manner as if it related to the goods
of price :— and that the delivery, in the
opinion ofHaneefa, not being involved in
the contract, but existing only as a condi-
tion, is therefore equivalent to a condition of
option, or a determination of the period of
the payment of the price ; — and a contention
regarding these does not induce the necessity
of the oaths of the parties, but is determined
by the affirmation of the seller.
IT is to be observed that, in the same
manner as Haneefa and the two disciples dis-
agree regarding the specification of the place
of delivery in a Sillim sale, so also they His-
agree regarding the specification of a place
for the payment of the price (where it is
stipulated at a future period),— the specifica-
tion of a place for the payment '>f rent,— and
also, the specification of a place for the pay-
ment c»f a sum Hue from a pirtner in a divi-
sion of stock An example, with respect to
payment of the price, appears where a
person purchases anything in exchange for
articles of weight or measurement of capa-
city.— or for some definite price. — in which
case, according to Haneefa, it is requisite
that the plare of payment be specified, pro-
vided the price be navable at a future period :
— whereas, according to the two disciples,
such condition is unnecessary, as the place of
concluding the contract is absolutely fixed
for the payment — (Some have said that
Haneefa, in this particular coincides with
the two disciples. This, however, is erro-
neous, since it is certain that a difference of
opinion obtains, as has been already stated ;
and such, also, it the opinion of Shimsal-
Avrm). — An example, with respect to rent,
appears where a person rents a house, a
quadruped, or the like, stipulating the price
to consist of some article of weight or
measurement of capacity, or of some specific
article such as is capable of being a debt
upon the person, — in which case, according
to Haneefa, it is requisite th^t the place of
piyment of such rent be particularly men-
tioned.— whereas, according to the two disci-
ples the mention of it is not requisite, but
the house itself is fixed as the place of pay-
ment,— or (in case of hire of an animal),
the place where the hirer returns the animal
to its owner. —An example with respect to
a division of property, appears where two
persons, jointly possessing a house, agree to
divide off their shares, and one of them,
having obtained a larger portion than he is
entitled to, agrees to compound with the
other bv the payment of of a particular sum. —
in which case, according to Haneefa, the
specification of the place of payment is a
necessary condition,— whereas, according to
the two disciples, this is unnecessary, as the
place of concluding the agreement determines
the olace of payment.
The place of delivery, however, need not
be determined with respect to articles which
are not of expensive carriage. — IF the article
for which the advance is made be of such a
nature as does not require any expense of por-
terage, such as musk, camphire, saffron, or
small pearls, there is no necessity, according
to all our doctors, for fixing the place of
delivery : because the difference of place
occasions no difference of price ; and in this
case the delivery must be made where the
contract is concluded. — The compiler of the
Hedava remarks that this is the doctrine
laid down in the Jama Sagheer, and also in the
Mahsoot treating of sales:— but that in the
Mabsoot treating of hire it is said that the
seller may deliver the goods wherever he
pleases , — and this is approved ; because the
delivery is not immediately due ; and also,
because, all places in this case being similar,
there is no necessity for the particular
determination of any. Now, the question
is, if the parties agree upon a place of
delivery, whether it be absolutely fixed
thereby or not. — Some are of opinion that
it is not fixed, because in so determining
it there is no advantage. — Others, again,
maintain that it is fixed thereby, as its being
so is advantageous, since the danger of the
road* is thereby avoided.
Nor. if a city be mentioned, need the
particular street be specified IF, in case
of the goods requiring porterage, a city be
fixed on for the delivery, there is then no
necessity for specifying the particular street
of lane, because a city notwithstanding the
variety of its parts, is considered as one
place.— Some have said that this proceeds
on a supposition of the city not being large ;
—but that, if its extent be a Fara<ang,* the
specification of a particular part is, in that
case, a necessary condition.
The pice must be received at the meeting.
— A SILLTM sale is not valid unless the seller
receive the price in the meeting, prior to a
separation from the purchaser ; because if
the price be stipulated in money, it would
otherwise follow that one bebt is opposed
to another debt ; a practice which has been
prohibited bv the Prophet ;-K>r, if the price
be stipulated in wares, it is invalid, because
the characteristic of Sillim is "a prompt
receipt of something in lieu of something to
be given," which would not be established
if a prompt delivery of the price did not tak«
place. Besidos. the payment of the price
is necessary to enable the seller to acquire
the goods, that he may become capable of
delivery ; — and hence lawyers have t said
that a Sillim sale, containing a condition of
option in favour of both or one of the parties,
is invalid, because a condition of option is
* A league, about 18,000 feet, of 31/2 mile*
in length,
304
SALE.
[VOL II.
a bar to the completion of the seisin, inas-
much as it prevents the conclusion of the
contract in regard to its effect, namely, the
establishment of right of property : — and
also, that the- purchaser has no option of
inspection, because it is vain and useless :
since the goods are a debt due from the
seller, and consequently undetermined ;
whereas a thing seen becomes determined.
— It is otherwise with respect to an option
of defect ; because that is no bar to seisin ;
— and hence, if such a stipulation be made,
and the parties annul it before the close of
the meeting, and the stller be in possession
of the price, such Si Him sale is valid ; in
opposition to the opinion of Ziffer.
Whence, if a debt owing from the seller to
the purchaser be considered as part of it, the
sale is invalid in that proportion. — IF a per-
son purchase a Koor* of wheat, by a Si Him
contract, for two hundred dirms, and, the
•eller being indebted to him one hundred
dirms, he [the purchaser] make the advance
by immediately pa ing to him [the seller] one
hundred dirms, and opposing the debt of one
hu idred dirms to the remainder,— in that
case the contract is invalid in the amount of
the debt of one hundred dirms, — -because a
present seisin is not made of them ; but it
is valid in the amount of the one hundred
dirms paid down, because of the observance
of the conditions of legality with respect to
that proportion, and because it is not affecte^
by the invalidity of the other proportion, as
such invalidity is supervenient, the sale bring
valid originally ; and hence, if the purchaser,
in this case, should pay down one hundred
dirms on account of the debt before the end
of the mteting, the sale becomes valid ; but
as, in the present instance, the purchaser
does not pay off his debt, but merely opposes
a clearance of his debt in lieu of ready
payment of one hundred dirms, and the
contracting parties separate from the meet-
ing, the sale is therefore invalid in that
degree.— ^he reason of this is, that if a debt
be established as the price, in a contract of
sale, still that is not absolutely fixed as the
price (whence if a person purchase goods
in exchange for a debt due to him by the
seller of the goods, and both parties after-
wards agree that the debt was not due, yet
the sale does not become null) ; and sine:
the debt is not absolutely fixed as the price,
so as to be capable of constituting capital
stock, it follows that the contract, in
such case, does originally take place, and
afterwards becomes invalid from that cir-
cumstance.
But it cannot be disposed of by the seller
until he take possession of it.— IT is not
lawful for the seller to convert to use. or, by
deed, to dispose of the price advanced, in
a Sillim sale (as if he should sell it, for
instance), prior to his seisin of it, because
• A dry Babylonish measure of 7,10>) lib *—
(See Richardson's Dictionary.)
in this case the seisin of the price, which is
an essential condition in a Sillim sale, would
be defeated.
Nor can the purchaser perform any act
with respect to the goods, until he receive
them. — IN the same manner, also, it is
unlawful for a purchaser, in a Sillim sale,
to perform any act with respect to the goods,
previous to the receipt of them ; because an
act with relation to the subject of a sale
previous to the seisin is unlawful.™ For the
same reason, also, it is unlawful for the
purchaser, prior to seisin, to admit another
to a share in the goods, or to dispose of them
at prime cost.
In a dissolution of Sillim the stock cannot
be applied to the purchase of any thing from
the seller until it be first received back. —
IF both parties agree to dissolve a contract
of Sillim, the purchaser is not, in that case,
entitled to accept or purchase any thing from
the seller in exchange for the stock he has
advanced, until he has first received it back
complete ; because the Prophet has said.
11 Where ye dissolve a contract of sale upon
which an advance has been made, take not
from him to whom ye have paid the advance
any thing except that which ye have
advanced to him ;"— and also, because, as
the capital advanced, in this instance, is
resembling and like unto the subject of the
sale, it follows that any act with respect
to it, previous to seisin, is invalid — The
reason why the capital advanced resembles
the subject of the sale is, that a dissolution
is equivalent to a new sale with relation to
a third person (that is, to any other than
the parties themselves) and it is therefore
necessary that the subject of the sale be
extant. Now it is impossible that the goods
contracted to be provided can be considered
as the subject of the sale, since they are not
extant ; it is therefore necessary to consider
the price in that light ; and this consequently
becomes as debt due by the seller, in the
same manner as the goods were.
OBJECTION. — Since a dissolution is equi-
valent to a new contract, similar to the first,
it w, uld follow that it is indispensable that
the advanced capital be received back by
the purchaser at the meeting in which the
dissolution is determined on, in the same
manner as it is requisite that it be advanced
to the seller at the time of concluding the
contract ; whereas it is otherwise.
REPLY.-— It is not indispensable that this
be received back at the interview of dissolu-
tion, because the dissolution is not in all
respects similar to the first contract.
Concerning the case in question Ziffer has
given a different opinion, for, according to
him, any deed relating to the price, previous
to the seisin, is lawful : — but the reasoning
above stated is a sufficient refutation of this
opinion.
An article subsequently purchased, and
made over in fulfilment of a Sillin sale, t*
not held to be delivered.— Iv a person sell a
Koor of wheat by a Sillim sale, and after-
BOOK XVI.-CHAP. XI,]
SALE
305
wards, when the period of delivery arrives
purchase the same from another, and then
desire the purchaser to receive it from that
other in discharge of his claim upon him :
and the purchaser accordingly take possession
of the same, still he is not considered to have
made seisin of the subject of the Sillim sale,
and consequently, if the wheat be lost or
destroyed whilst in his possession, the seller
is responsible for the same.
Unless the purchaser receive it first on
behalf of the seller, and then make seisin of i t
on his own account , by two distinct measure-
ments.— BUT if the seller should have desired
him to receive it first on his [the seller's]
account, and afterwards on his own account,
and the purchaser accordingly, first measure
it out and receive it on account of the seller,
and afterwards measure it out and receive it
on his own account, the subject of the Sillim
sale is in that case delivered, and the pur-
chaser becomes completely seised of the same,
The reason of this is, that there is here a
conjunction of two contracts : first, the Sillim
sale : and, secondly, the sale between the
seller of the Sillim sale and the th'rd person :
and it is a necessary condition that the
measurement take place in both, because the
Prophet has prohibited the stle of wheat until
the measure both of the purchaser and the
seller shall have been applied to it ; and
this prohibition (as has been alreadv ex-
plated) evidently alludes to the conj unc-
tion of two contracts, such as in the case in
question.
OBJICTION. — As the Sillim sale is previous
to the purchase of wheat made by the Sillim
seller, it follows that the two contracts are
net conjoined.
REPLY — The Sillim contract is antecedent,
but the seisin of the subject of it^ is pos-
terior ; — and the seision here is equivalent to
a sale He novo ; because ; althoueh the subject
of the Sillim sale was a debt incumbent on,
the seller, and what the purchaser had
received was determinate thinor, and con-
sequently, in reality, different from a debt
yet they are in this ease considered as one
and the same thing, lest it should follow that
the exchange of the subject of a Sillim sale
has been made previous to the seisin of it ;
for if they were to bt considered as two
thincs, it would follow that the subject of
the Sillim sal? prior to the seisin of it was
given in exchange for what the purchaser
made seisin of namelv, a determinate ^ thing
and not a debt. — Now since the seisin is
oroved to be in the nature of sale dc^ novo,
it follows that two contracts are conjoined,
namely, the purchase of tbe wheat by the
Sillim seller, and the seisin of it by the
Sillim purchaser, which is equivalent to a
sale de novo, that is, the case is the same as
if the Sillim seller, having purchased it from
the purchaser, were to re-sell it to the Sillim
purchaser.
A second measurement it not required in a
similar receipt of article by a lender — Ir a
person, indebted to another in a Koor of
wheat, not on account of a Sillim sale,* but
on account of a loan, should purchase a Koor
of wheat from another, and then desire his
creditor to receive the same from the other,
in lieu of what he had borrowed, and the
creditor, having measured out the same,
should accordingly take possession of it such
seisin is valid, and a re payment of the loan
is established ; because* a loan of indefinite
property fKarz] is equivalent to a loan of
specific property [Areaat],— and hence the
Koor of wheat so measured and received by
the lender may be said to be his actual right,
for which reason the transaction is not re-
garded as a conjunction of two contracts
[with respect to one subject], and it is con-
sequently not requisite that the wheat be
measured a second time.
If the siller measure the article, on behalf
of the purchaser, in fits absence, it is not a
delivery — although it be measured into the
purchaser's varfe. — IF a person, having pur-
chased a Koor of wheat by a Sillim sale,
should order the seller to measure it and put
it into his (the purchiser's) sack, and the
seller having accordingly measured it out
should put it into the sack at a time when
the purchaser is not himself present, in this
case a delivery of the goods is not held to
have taken place (insomuch that if the wheat
should in that situation be destroyed, the
loss falls entirelv on the seller) ; because the
purchaser, in a Sillim sale does not become
proprietor of the article, for which he makes
the advance, until actual seisin, as his rigt
is of an indefinite nature and not determi-
nate : now the wheat, in the case in question,
is a determinate article, and hence the order
given to the seller by the purchaser to measure
if out was not valid — since the order of a
director is of no account except with respect
to his own property. — Thus the seller, as it
were, borrowed the sack of the purchser,
and put wheat wh:ch was his own proDerty
into it; — in the same manner as if a person,
having a debt of some dirms due to him by
another, should give his purse to the debtor
and desire him to weigh the dirms and put
them into it ; in which case if the debtor act
accordingly, still the creditor does not by the
performance of this act become seised of those
dirms. — If, on the con tray, a person, having
purchased wheat that is determinate and
present, should direct the seller to measure
it, and put it into his [the purchaser's] sack,
and the seller act accordingly, at a time when
the purchaser is absent, the purchaser is
nevertheless seised of the same in virtue of
that act, besause his directions to the seller
were efficient, as the property of the wheat
had vested in him in consequence of his
purchase of it. — Hence it appears that in a
common sale the purchaser becomes pro-
prietor of the article previous to the seisin, —
• That is, as an article for which he had
received an advance.]
306
SALE.
[VOL. II,
whereas, in a Si Him sale, the right of pro-
perty does not vest until after the seisin. —
Hence, also, in a Sillim sale, if the purchaser
desire the seller to grind the wheat, put in
the manner above recited into his bag, the
flour is the property of the seller ;— -whereas,
if the same were to be done in case of a
common sale, it would be the property of the
purchaser. In the same manner, also if the
purchaser should desire the seller to throw
the wheat into the river, and he act a^cord-
ingly, then, in a Sillim sale, the loss would
result to the seller,— whereas, in a common
sale it would fall upon the purchaser, and he
would remain responsible for the price, since
his order was efficient. Hence, in the
Rawayet-Saheeh, it is declared to be sufficient
that the seller, by the direction of the pur-
chaser, measure out the article and put it
into the purchaser's sack ; and there is no
necessity for another measurement, since in
this case the seller acts as agen* for measure-
ment to the purchaser; and the seision is
completely established, because of the falling
of the wheat into the purchaser's sack.
And so also if it be measured by the seller
into his own sack, at the purchaser's instance,
although the purchaser be present. — IP a
person purchase wheat, and direct the seller
to measure it out and put it into his own
sack, and the seller act accordingly, the
purchaser is not seised of it, inasmuch as he
borrowed the sack of the seller without
taking possession of it, and consequently
does not become seised of its contents.— The
{•ate is therefore ihe sams as if the purchaser
had directed the seller to measure out the
wheat and place it in a particular corner of
his own house, which being completely in the
possession of the seller, the purchaser cannot
consequently be seised of anything in it .
Case of delivery of a determinate article
in the same parcel with an undeterminate
article.— IT sn undeterminate and a specific
thing be joined together, by a person (for
instance) purchasing a specific Koor of wheat,
and also entering into a Sillim contract for
another Koor of the same (the former of
which is specific 'and the latter undeter-
minate), and then directing the seller p to
measure out both into his own sack, in that
case, if the seller first measure the specific
wheat into the sack, and afterwards the
undeterminate wheat, the purchaser is seised
of both the measures of wheat ;— of the
determinate wheat because his directions to
the seller with respect to it were efficient, as
it was his undoubted property ; — and of the
undeterminate wheat because, upon the seller
measuring it out, and placing it in the bag,
it then becomes implicated with the property
of the purchaser, and on account of such
implication the purchaser becomes seised of
it.— The case therefore is analogous to where
a person, having solicited the loan of some
wheat, desires the lender to scatter it on his
(the borrower's) ground,— or, where a person
consigns his ring to a jeweller with directions
to add to it more gold, to the weight of half
a deenar ; — for in both these cases the seisin
takes place immediately on the implication
with the property.— If, on the contrary, in
the case in question, the seller first measure
out the undeterminate wheat, and place it in
the purchaser's sack, and afterwards the
specific wheat, the purchaser does not become
seised of either; because his directions to
measure out the undeterminate wheat were
not efficient, and consepuently the property
of it remained with the seller, as before : —
and having afterwards mixed the determinate
wheat with his own property, he thereby
destroys and annuls the right of property of
the other. — This is founded on the doctrine
of Haneefa, according to whom the implica-
tion of the propertv of another with one's
own is destructive of the right of property of
that other : and on this principle he holds the
sale with respect to the determinate wheat to
be dissolved.
REJECTION. — The above implication is
with the consent of the purchaser, since it
was by the order that seller made the
measurement, and hence the sale ought not
in this case to be dissolved.
REPLY. — The implication is not made with
the consent of the purchaser, since there is
a probability that his object was that the
specific wheat should first be measured out.
WHAT is here advanced is founded on the
doctrine of Haneefa, as above stated. The
two disciples are of opinion that the pur*
chaser has the option of either dissolving the
sale or sharing with the seller in the mixed
property : because, according to them, the
implication of the property of another with
one's own is not in all cases destructive of
the right of property of that other
T/" the contract be dissolved, and the article
advanced rterish befire restitution, the seller
is responsible — • Ira person purchase a Koor
of wheat by a Sillim contract, making a
female slave the price advanced, and after
the seller taking possession of the slave the
parties dissolve the contract, and the slave
afterwards die whilst yet in the possession of
the seller, in this case the seller is respon-
sible for the value she bore on the day of
seisin —Tf. also, the dissolution be made
after the death of the female slave, it is
valid, and the seller in the same manner re-
mains responsible for the value at the period
of seisir.-— The reason of this is that the
validity of a dissolution rests upon the ex-
istence of the contract, and that, again, rests
upon the existence of the subject of it : now
in a contract of Sillim, the article advanced
for is the subject of the contract ; and as
that, in the case in question, still continues
in existence, it follows that the dissolution is
valid : — and the dissolution being valid, and
the contract of Sillim consequently cancelled
with respect to the article advanced for, it
follows that it is also cancelled with respect
to the slave (being the price paid in advance),
as a dependant of the article advanced for,
although it be not valid with respect to the
slave, orginally, because of her non-ex-
BOOK XVI— CHAP. XI ]
SALE
3*7
istence, since there are many things which ;
although not valid originally, are yet so de-
pen dan tly. — The contract, therefore, being
cancelled with respect to the slave, it be-
coT.es incumbent upon the seller to return
her ; but as this is impracticable, he must
pay her value
The dissolution of a tale it rendered in-
vaiid by the article perishing before resti-
tution.— IF a person, having purchased a
slave, should agree ith the seller to dissolve
the bargain, and the slave afterwards die in
his possession, the dissolution is invalid ; —
or, if the slave die first, and the parties then
agree to dissolve the contract, in this case also
the disioluton is invalid; — '>;cait*e, the slave
being the -ubject of the sale, and his death
of conseq eice destroying the existence of
the contract, the dissolution is therefore
invalid from the beginning in the second
cafe, and becomes invalid in the end in the
first case, —as the subject no longer remains.
It is otherwise in a case of 13eea Mookayeza,
or barter ; because a dissolution in tnat case
is valid after the decay or destruction of one
of the articres ; since either of them being
capable of becoming the subject of the sale,
the existing one is therefore considered as
such.
In a dispute with re pect to the value of the
subject, the assertion of the teller (upon oath)
must be credited — IP a person enter into a
contract of Sillim for a Koor of wheat, at the
rate of ten dirms and the seller afterwards
assert that "he had agreed for wheat of an
inferior sort," and the purchaser deny this,
asserting ''the stipulation of wheat was
rrade in an absolute manner, and therefore
the contract is invalid," in such case the
assertion of the seller, corroborated by an
oath, must be credited, since he pleads the
validity of the contract, by virtue of the
declaration of a condition of it ; and the
assertion of the purchaser, notwithstanding
his denial of validity of the contract, is
not credited, because 't tends to a destruc-
tion of his own right, since it is a custom, in
Sillim sales, that the goods advanced for the
superior to the sum advanced. — If a vice
versa disagreement take place between the
parties, the learned say that agreeably to
the doctrine of Haneefa, the assertion of the
purchaser is credited, since he claims the
validity of the contract. —According to the
two disciples, the assertion of the seller is
credited in both cases, as he is the defendant
in both, notwithstanding that, in the latter,
he deny the validity of the contract. This
will be more fully ixplamed hereafter
If the seller deny the appointment of a
period of delivery, the assertion of the pur-
chaser, fixing that period, must be credited*
IF a disagreement take place between the
parties to a Sillim sale, by the seller asserting
that a period of delivery had not been deter-
mined in the contract, and the purchaser
asserting that it had, the assertion of the
purchaser must be credited, because t deter
mination of a period for delivery is a right of
the seller, and his denial is therefore a
wilful injury to himself.
OBJECTION.— The seller denies the deter-
mination of a period for delivery from a
view to his own advantage ; since such
denial is the cau^e of annulling the contract,
by which means he obtains the property of
the goods ne had engaged to deliver. Hence
his denial is advantageous and not injurious
to himself.
REPLY —The invalidity of a Sillim c on*
tract, because of the period of delivery b eing
underminate, is not certain, since our
doctors have disagreed on this point. The
advantage, therefore, in this view, is of no
account ; — whereas the advantage to the
seller, from the determination of such period,
being obvious, his denial of it thereupon is
an injury to himself, — It is otherwise in the
case of a disagreement between the parties*
with regmi to the existence of a condition
concerning the quality of the article ; be-
cause in that instance the invalidity of the
contract, f ro n a want of a definition of the
quality, is certain
IP on th: other hand, the seller assert that
the perio 1 had been determined, and the
purchiser deny this, in that case, according
to the two disciples, the assertion of the pur-
chaser must be credited, because he denies
the right which the seller claim from him,
although, at the same time, he deny the
validity of the contract ; — in the same man-
ner as holds with respect to the proprietor of
the stock in a contract of Mozaribat ; — that
is to say, if the proprietor of the stock were
to say to his Mozarib, or manager, "I stipu-
lated that a half of the profit shall go to you
excepting ten ciirms ;" and the manager
deny this, and assert that he had stipulated
a half of th> profit in his favour, in th s case
the assertion of the proprietor of the stock is
credited, since he denies the claim of right
of the agent, notwithstanding he thereby at
the same time deny the validity of the con-
tract between them. — Haneefa says that, in
the case in question, the assertion of the
seller is to be credited, because he claims the
validity of the contract. Besides, the pur-
chaser and s Her both agree in their having
made a Sillim contract, and consequently
they both apparently agree in the validity of
it :— but, again, the purchaser, in denying
the assertion of the seller, denies the validity
of the contract, which is the denial of t
thing he at the same time admits, and is
consequently not worthy of credit. — It it
otherwise in the case of Mozaribat, because
a contract of Mozaribat is not binding upon
either the manager or the owner of the stock,
since the manager may refuse the execution
of the Mozaribat at any time, and the con-
stituent may dismiss him when he pleases •
such a disagreement, therefore, in the case i
Mozaribat, is of no consequence, the plea o
invalidity, in this instance, amounting, in
fact, to nothing more than a refusal to carry
the contract into execution, which it is law-
ful for {either party to do. There remain/*,
308
SALE
[VOL. II.
therefore only the claim to profit on the
part of the manager ; and as this is opposed
by the proprietor of the stock, his declaration
must consequently be credited.— A Sillim
contract, on the contrary, is absolute, and
therefore of a different nature.
FROM the above discussion it appears to be
a general rule that the assertion of a person
who denies his own right, and not the right
of another upon him, is not credited in the
opinion of all our doctors :— and that whoever
pleads the validity of a contract must be cre-
dited in his assertion, according to Haneeta,
provided both parties be agreed in the uni-
formity of the contract, J»uch as that of
Sillim, which, whether valid or invalid, is
of an uniform nature ; in opposition to
Mozaribat, which, in case of its validity, is
a contract of participated profit, and in case
of its inval dity is merely a contract ot hire.
—The two scholars are of opinion that, in
the case in question, the assertion of the de-
fendant must be credited, notwithstanding
he thereby deny the validity of the contract,
In Sillim sales of price goods all the
qualities must be particularly specified.— IF
I person enter into a Sillim contract with
respect to cloth, describing its length,
breadth, and quality of fineness or coarse-
ness, such sale is valid, because it is a con-
tract of Sillim which relates to a known
thing, and of which the delivery is prac-
ticable. If the subject of the sale be a piece
of silk stuff, it is necessary, in addition, to
settle the weight that also being an object
in this instance. .
Sillim sale is not valid in shells, or jewels ;
but it is valid in small pearls sold by weight.
—A SILLIM sale of jewels or marine shells is
not lawful, because the unities of these vary
in their value. ..
A SXLLIM sale of small pearls that are sold
according to weight is lawful, as the weight
ascertains the subject of the sale.
In bricks.— THREE is no impropriety in a
sale of bricks, whether they be in a wet or
dry state, provided a description be given
of the mould in which they are formed,
because bricks, in their unities, are ot a
similar nature, more especially where their
mould is described. .-LI*
And (in short) in all articles which admit
a general description of quality, and ascer-
tainment of quantity.— IN short, everything
of which it is possible to comprise a de-
scription of the qualities, and a knowledge
of the quantity, is a fit subject of Sillim
sfie, as it cannot occasion contention ; on the
other hand, a Sillim sale is not lawful with
respect to things incapable of being denned
by a description of quality or quantity ;
because the subject of a Sillim sale is a debt
due by the seller ; and if its quality be not
known there consequently exists a degree of
uncertainty, from which a contention must
arise.
Or which are particularly ^defined.— THERE
is no impropriety in a Sillim sale of pots or
vessels for boiling water, or of boots, or the
like, provided these articles he particularly
defined, because the conditions essential to
the validity of a Sillim sale are here ob-
served : — but if the articles be not defined,
the sale is absolutely invalid, the subject of
the sale being in such case an undefined
debt. It is also lawful to bespeak any of
these articles from the workman without
fixing the period of delivery —Thus if a
person should desire a boot-maker to make
boots on his account, of a particular size and
quality, such agreement is lawful, on a
favourable construction, founded on the
usage and practice of mankind, although it
be unlawful by analogy, as being the sale of
a nonentity, -vhich is prohibited.
Articles bespoke from the manufacture,
in a contract of Sillim are considered as
entities— IT is to be observed that a contract
for workmanship is a sale and not merely a
promise. This is-approved. The eubject of
the s le moreover, in such case, although in
reality a nonentity, is yet considered, in
effect, as an entity ; and the thing upon
which the contract rests is considered as a
substance (that is, as bjots, for instance),
and not as the work of a manufacturer in
an abstracted manner ; — and accordingly, if
the manufacturer bring boots that had been
worked by another, or boots wnich he had
himself worked prior to the contract, and
the person who had bespoke them should
approve of the same, the contract is legally
fulfilled — Besides, articles that are bespoken
are not determined for the person who be-
spoke them until he approve of them :
and hence, if the workman should sell
them to another before he had shown them
to this person, it is lawful. — All this is
approved.
And may be rejected, if dissapwoved, upon
delivery.— WHOSOEVER bespeaks goods of a
workman has the option of taking or reject-
ing them, because of his having purchased
articles which he has not seen — The work-
man, however, has no option, insomuch that
the person who bespoke them may, if he
please, take them fiom him by force. — This
is recorded by Mohammed, in the Mabsoot,
and is the most authentic doctrine —It is
related, however, as an opinion of Haneefa,
that the workman also has an option, inas-
much as it is impossible for him to furnish
the articles bespoken without detriment,
since, in order to make boots (for instance),
it is necessary to purchase hides, and in-
struments to cut them, and this is not free
from loss. — It is related, as an opinion of
Aboo Yoosaf, that neither party possesses
an option ; for the workman, as being the
seller, is not entitled to an option, — in the
same manner as, in a sale of goods unseen,
the seller hath no option ; and with regard
to the person who bespeaks the goods, if an
option were given to him it would be an
injury to the seller, since if he rejected the
goods other people might not choose to
purchase them for the value ; as where, for
instance, a commander of high rank be-
BOOK XVI.— CHAP XL]
SALE
309
speaks goods, and the workman accordingly
makes them in a style suitable to his rank-
and he afterwards rejects them ; in which
case the common rank of people would not
purchase them for their value
An engagement with a manufacturer to
furnish goods u;/iic*h it is not customary to
bespeak is not valid — A CONTRACT with a
workman for the furnishing of goods is not
lawful with respect to such articles as it is
not customary among mankind to bespeak, —
as cloth (for instance), because the bespeaking
of goods is in itself unlawful, and is there-
fore admitted by the law only so far as it is
authorixed by thi» custom of mankind, which
is considered as a necessary instrument of
its legality. — It is also requisite, in bespeak-
ing articles authorized by the custom of
mankind, to discribe their quality, in order
to enable the workman to furnish them
accordingly ; and unless such description be
given the contract ie unlawful. — It is to be
observed that the prohibition of a stipulation
of period for delivery, as recited in the
first of these cases relative to contracts of
this kind, proceeds upon this ground, that if
a period were stipulated in a contract for the
supply of work of articles authorized by
custom, and the price paid immediately to
theworkman.it would then become a S Him
sale in the opinion of Aboo Yoosaf : in oppo-
sition to that, however, of the two disciples,
who hold that it would still remain merely a
contract for the supply of wcrk : — but if the
period should be stipulated in the case of i
articles not authorized by custom it then ;
becomes a Sillim sale in the opinions of all
our doctors. — The reasoning of the two dis- ]
c iples in support of their opinion in the
first case, is that the word Istsina literally
means a requistion of workmanship, and
ought of consequence to be used in that
sence, so long as the context does not
determinate it to some other sense.
OBJECTION.— The stipulation of a period is
a context which clearly indicates that Istsina
is to be taken in a sense different from its
literal meaning ; and that is to be under-
stood as implying a Sillim agreement ;
otherwise what need for the stipulation of a
period ? — It would therefore appear that in
such a case it amounts to a Sillim.
REPLY.— The stipulation of a period, as in
the first case, is not a convincir g argument
that the word Istsina is not to be taken in
its literal sense, but ought to be understood
as implying an agreement of Sillim ; because
the stipulation of a period may be supposed
to have been made with a view to expedition
— and it may be supposed that the object of
the bespcaker, in fixing a period, was to
prevent delays : in opposition to the case of
things not authorized by custom, for there a
contract for a supply of workmanship, as
being invalid is construed to mean a Sillim
sale, which is lawful.
The reasoning of Haneefa is that, when a
period is stipulated, it fixes the subject of
the sale to be debt, because periods are not
fixed except with regard to debts ; and the
subject being proved to be a debt, the con-
struction of the contract into a Sillim sale is
easy and natural. It is therefore construed
to be a Sillim sale, which is lawful, in the
opinion of all our doctors, beyond a d »ubt :
whereas, there is a doubt with respect to the
other, since practice means the deeds of all
people of all countries, and this can never
be known with certainty : as therefore, the
legality of a sillim sale is certain, and
practice is not free from doubt, it follows
that it is preferable to construe acontract
for a supply of work to mean a contract of
Sillim.
Section
Miscellaneous Cases.
It is lawful to sell daQS or hawks.— IT is
lawful to sell a dog or a hnwk, whether
trained or otherwise It is related, as an
opnion of Aboo Yoosaf, that the sale of a
dog that bites is not lawful,— and Shafei has
said that ths sale of a dog is absolutely
illegal ; because the Prophet has declared
"the wages of whoredom, and the price of
a doe, are in the number of prohibited
! things;" and also, because a dog is actual
1 filth, and therefore deservin? of abhor-
' rence ; whereas the legality of sale entitles
the subject of it to respect ; and is conse-
quentlv incompatible with the nature of a
dog. The arguments of our debtors upon
this point are twofold FIRST the Prophet
has prohibited the sale of dogs, excepting
such as are trained to hunt or to watch —
SECONDLY, dogs are a species of pro-
perty, inasmuch as they are capable ot
yielding profit by means of hunting and
watching ; and being property, they are
therefore fit subjects of sale ; in opposition
to the case of noxious animals, such as
snakes or scorpions, which are not capable
of yielding use. With respect to the tra-
dition quoted by Shafei, it applies to the
infancy of Islam, at which period the Prophet
prohibited every one from eating the price ot
a dog, in order to restrain men from a fond-
ness for dogs, as it was then a custom to keep
dotfs of breed, and to suffer them to sleep
on the same carpet But when this custom
fell into disuse, and men abstained from a
fondness for dogs, the Prophet ordained the
sale of them. With respect to the assertion
of Shafei, that dogs are actual filth, it is not
admitted ; but admitting this, still it follows
that the eating, and not the selling of them
is unlawful.
It is not lawful to sell wine or pork.— IHE
sale of wine or pork is not lawful ; because,
in the same manner as the Prophet has pro-
hibited the eating or drinking of these, so
also has he prohibited the sale of them, or
the eating of the price of them; and also,
because these are not substantial property
with regard to Mussulmans, as has been
before frequently explained.
Rules with respect to Zimmees in sale.
310
SALE
[VoL. II.
ZIMMEES, in purchisc and sale, arc the tame
as Mussulmans :— became the Prophet has
said " Be regardful of ZJMMEES, for they
ire entitled to the same right, and subject
to the same rules with MUSSULMANS !"— and
also because, being under the same necessi-
ties, in the transaction of their concerns, as
Mussulmans, they stand in need of the same
immunities. They are therefore the same as
Mussulman, with respect to purchase and
sale, — excepting, however, in the sale of
wine and pork, which is lawful to them, as
the sale of wine, by them, is considered in
the same light with that of the crude juice
of the grape by the Mussulmans : and the
sale of pork by them is equivalent to tha' of
the flesh of a goat br Mussulmans ; because
these things are lawful in their beh ef, and we
are commanded to suffer them to pursue-
their own tenets. Moreover, Omar com-
manded his agents to empower the Zimmees
to sell wine, taking from them a tenth part
of the price : a proof that the sale of wine is
lawful among them.
A person inciting another to sell his pro-
perty to a third person, by offering an addi-
tion over and above the price, is responsible
for such addition ; but not unless this addition
be expressed as forming a part of the price.
— IF a person say to another, " sell your
slave to a particular person for one thousand
clirms, on condition that I be responsible to
you for five hundred dirms, of the price, in-
dependent of the one thousand dirms," and
the said person act accordingly, it is valid
and he is entitled to one thousand dirms
from the purchaser, and to five hundred
dirms from the security ; whereas if he were
•imply to say, " I will be responsible for hve
hundred dirms," without mentioning the
words " of the price/' the seller is, in that
case, entitled only to the one thousand dirms
from the purchaser, and has no claim on the
surety.— -The reason of this is. that an in-
crease in the price, or in the wares, is lawful,
according to all our doctors, and is joined to
the original contract (as has been already
explained), being only an alteration of the
contract from one lawful quality to another
lawful quality ;— and as it is lawful for the
purchaser to make an alteration in the price,
although he ba no gainer in other respects by
it (as if he should increase the price, not-
withstanding it be adequate to the value of
the goods before the increase), so also it is
lawful for a stranger to lay himself under an
obligation for an increase of price, although
he have no advantage in other respects ; —
in the same manner as the consideration for
Khoola becomes incumbent upon a wife in
virtue of her assent to the Kho^la, although
•he receive nothing in exchange, for woman
is originally free, and the procurement of a
divorce adds nothing to her original free-
dom. It is essential, therefore, to the
validity of the seller's claim upon this
person, that the increase be opposed to the
goods by the specification of the words " of
ai'e r*ypeonihd f these words be omitted,
the declaration or stipulation is of no ac-
count,
A female slave may be contracted in
marriage bv the purchaser without his taking
possession of her. — IP a person, having pur-
chased a female slave, make her over in mar-
riage to another before seisin, and that other
cohabit with her, such marriage is lawful, as
having been concinded in virtue of the
authority of the proprietor : — and it also
determines the seisin of the purchaser. If,
however, the husband should not cohabit
with her, the marriage does not, in that
case, determine the seisin according to a
favourable construction of the law. —
Analogy, indeed would suggest that the
purchaser becomes seised of the slave on the
instant of the marriage-contract, since, in
consequence thereof, the right of property
over the slave is rendered virtually defec-
tive ! — it would therefore follow that the
seisin becomes established as an effect of the
contract, in the same manner as in the case
of an actual defect occasioned by any act of
a purchase. — The reason for a more favour
able construction, on this occasion, is that
any act by which an actual defect is occa,
sioned infers an exertion of power over the
subject, which consequently established a
seisin of the subject ; but an act which merely
induces a virtual defect does not admit of
this inference, so as to establish seisin.
Case of the puj chaser disappearing, without
taking possession of his purchase, or paying
the price. — IF a person, having purchase a
slave, should afterwards absent himself with-
out taking possession, or paying the price,
and the seller prove by witnes^es that he hid
sold the slave to the absentee, in that case,
provided the place of his retirement be
known and ascertained, the slave cannot be
re-sold on account of the exigencies of the
seller, for these may be otherwise answered,
and such sale would destroy the right of the
first purchaser : — but if the ab entee's place
of retirement be not known, the slave may
be rersold, and the debt of the purchaser to
the seller paid by metns of the price ; for the
seller has proved, by witnesses, that the
slave is the property of the pur :haser, and
that he has a claim upon him ; and conse-
quently, when tne place of retirement of the
purchaser is unknown, it is incumbent on the
magistrate to direct the slave to be sold for
the satisfaction of the seller ; which could
not otherwise be obtained ;— in the same
manner as where a pawner dies before having
released his pledge, in which case it is sold
for the discharge of his debt to the pawn-
holder. — It is otherwise where the purchaser
disappears after seisin, for in this case the
slave cannot be sold to answer the right of
the seller, since his right is not particularly
c >nnected with the salve, as he, in such a
circumstance, stands in the same predica-
ment with the other creditors, — It is to be
observed that, in case of the slave being aold
an account of the seller, if anything remain
after the discharge of hit claim by means o
BOOK XVT.--CgAPjL
SALE
311
the price the seller must keep such remain-
der in behalf of the purchaser, to whom it is
due as an exchange for his property :— but
if the price should not suffice to answer his
claim, he is in that case entitled afterwards
to the remainder, from the purchaser.
Or of one of two purchasers disappearing
under the same circumstance. —SUPPOSING
there be two pun rnsers, and only one of
them disappear, the one of that is present is
entitle 1 to pay the whole of the price of the
slave, and to take complete possession of
nim ; a-d if, in this case, the other pur-
chaser afterward appear, he is not entitled
to receive his share until he shall have paid
to his partner the price of it This is the
adjudication of Haneefa and Mohammed.
Ahoo Yoosaf has said that, if the oresent
purchaser pav the whole of the price, still
^ is only entit'ed to take possession of his
own share, and that, as the payment of the
debt ef the absentee was a gratuitous and
unsolicited act in his favour, he is not en-
titled to receive it from him, since he paid
it without his authority Beside--, as the
present purchaser is, as it were, a stranger
with respect to the absentee, he is not en-
titled to take possession of his share. The
reasoning of Hanpefa is that t'ic present
purchaser, in making payment on behalf
of the absentee, acted from necessity, and
not from choice : because it was not other-
wise possible for him to enjoy his own
share, since, having purchased the Siave
jointly with the other by one contract, it
was impossible for him to detain him in his
possession whilst there existed the claim of
another with respect to part of him. Now
whosoever pays the debt of ano'her from
necessity is entitled to repayment, notwith-
standing his having acted without authority ;
as m the case of the loan of pledge ; for if
a person lend to another something in order
that he may pledge it, and that other having <
pledged it accordingly, the lender af erwards,
from a necessary want of the said thing, re-
deem it from the pawnee, he is, in such case,
entitled to repayment from the borrower,
although he have redeemed the pledge with-
out authority from him —Since therefore
the present purchaser, in the case in ques-
tion, has a right to repayment from the
absentee, it follows that he has also a right
to detain in his possession the share of the
absentee until he receive payment of the
sum due to him ; in the same manner as an
agent for purchase, who pays from his own
property the price of the goods purchased
on behalf of his constituent, is entitled to
retain possession of them until he receive
payment of the price from his constituent.
Case of gold and silver being indefinitely
mentioned in the offer of a price.--Ip a per-
son purchase a female slave in exchange for
one thousand miskals of gold and silver,—-
saying, "I purchase this slave for one thou-
sand miskals of gold and silver," in that
case it is incumbent on him to pay five
hundred miskals of gold, and five hundred
miskals of silver ; for the reference of the
miskals to the gold and silver having been
in an equal degree applicable to each, an
e jual proportion in the payment is of con-
sequence incumbent. — If, on the other hand
the purcharer should say, "I have purchased
this slave in exchange for one thousand of
gold and silver, in this case he must pay
five hundred miska's of gold, and five hun-
dred dirms of silver (of the septemal weightj:
for the terms one thousand having been re-
ferred to the gold and silver in a general
manner, it is therefore construed to apply
to the weight in common use with respect
to each in particular.
The receipt of base money instead of good
money, if it be lost or expended, is a complete
discharge. —lp a. person indebted to another
in the amount of ten dirms of a good sort,
afterwards pay him this amount in an infe-
rior species, an J the other, being ignorant of
this circumstance, r-ceive them, and after-
wards expend them, or lose them, in this
case the debt is completely discharged, and
the creditor is not entitled to any compen-
sation for the difference of quality. — This
is according to Haneefa and Mohammed. —
Aboo Yoosaf has said, that in this case the
creditor is entitled to return to the debtor a
tantamount of dirms of the sort be receivedt
and 'o demand from him ten dirms of a su-
perior sort, to which he has a right ; because,
in the same manner as his right relates to
the substance of the dirms, so also is it estab-
lished in the quality. A conservation of each
right is therefore indispensable ; but as the
conservation of the second right, by means
of an allowance in exchange for the diffe-
rence of quality, is impracticable (since
quality in homogenous articles is of no
relative value), this mode mu t necessarily
be adopted The reasoning of Haneefa and
Mohammed is, that the bad dirms are of the
same species with the good ; and that atter
the receipt and expenditure, or destruction
of them, the debt is discharged ; because the
claim which remains relates to quality, and
this is impossible to satisfy by the granting
of a compensation, inasmuch as quality in
itself bears no value.
Articles of a neutral nature do not become
property but by actual! seisin. — IF a bird in-
cubate its eggs in the land of a particular
person, the right of property over broad
does not, in virtue of such incubation, vest
in the proprietor of the ground ; on the con-
trary, they remain free to the person who
shall first seize them. — The law is also the
same with respect to eggs which a bird, lays
upon any particular ground.— So also, if a
deer should sleep for a night in a field, it
does not by that act become the property, of
the proprietor of that field ; on the countrary,
it remains free to whatsoever it may be
caught by. The reason of this is that both
the young onces and the deer are considered
in the nature of game, and as such are free
to the person who catches them, although no
stratagem be used for that purpose ;— and the
312
SIRF SALE
VOL. II.]
same, also, of eggs ; whence, if a Moharim
should either break or broil them, he is sub
ject to make expiation. — Moreover, the pro-
prietor did not purposely prepare his land
that the bird should lay or incubate her eggs,
or that the deer should sleep upon it. — It
is therefore the same as if a person should
spread out his net for the purpose of drying
it, In which case, if any game should fall
into it, it would not become immediately the
property of the proprietor of the net, but
would continue netural until some one seize
it ;— or, as if game should come into a house,
in which case it does not become the imme-
diate property of the proprietor of the house.
— or. as if a person, s-attering sugar or dirrns
(for instance) among the people, should
chance to throw these into to clothes of
some one : in which case the property does
not immediately vest in that person, until
he warp it up or prepare to seize it. —It is
otherwise with respect to honey, for the
property of it vests in the proprietor of the
ground in which 't is gathered together ;
because honey is considered as the produce
of the ground, and hence the proprietor of
the ground obtains a property in it as a de-
pendant of the soil, in the same manner as
in the trees which grow in his land, or in
which water flows through it.
BOOK XVII
OF SIRF SALE
Definition of Sirf sale BEEY\ SIRF
means a pure sale ; of which the articles ,
opposed in exchange to each other are both I
representatives of price. This is termed I
Sirf, because Sirf means a removal, and in
this mode of sale it is necessary to remove
the articles opposed to each other in exchang3
from the hands of each of the parties, re-
spectively, into those of the other. Sirf also
means a superiority ; and in this kind of
•ale a superiority is the only object ; that is,
a superiority of quality, fashion, or work-
manship ; for gold or silver being, with re-
spect to their substance, of no use, are only
desirable from such superiority.
The articles opposed must be exactly equal
in point of weight : but may differ in quality.
— THE sale of gold for gold, or silver for
silver, is permitted only when they are ex-
actly equal in point of weight : but the one
may beoi a superior quality to the other ; or
the one may be bullion, and the other may be
wought ; because the Prophet has said "Sell
GOLD for GOLD, from hand to hand, at an
equal rate according to weight : for any ine-
quality in point of weight is USURY." And
he has also declared "the GOODNESS and
BANDNISS of quality is the same" (as has
been already explained in the preceding book
treating of sale).
The exchange must take place upon the
spot.— MUTUAL seisin is an indispensable
requisite in a Sirf sale ; — that is, it is indis-
pensable thit each of the parties, prior to
their departure from the meeting, take pos-
session of the article respectively given in
exchange ; because of the tradition above
quoted ; and also, because Omar and to one
of the parties in a Sirf sale. "If the other
party require leave to 30 to his house, yet
you must not grant it." —Besides, the seisin
of one of the parties is an indispensable
requitit?, lest the contract prove to be an
exchange of a deSt for a debt : — and as the
seisin of one of the part'es is requisite, it
follows that, in order to establish an equality
the seisin of the other is also requisite, since
usury would otherwise be induced. In a
sale of this nature, moreover, neither subject
has a priority with respect to the other ; and
hence a mutual seisin is requisite, whether
both the subjects be of a determinate nature
(as in the sale of one silver vessel for another
silver vessel), or of a nature not determinate
(as in the sale of dirms and deenars in ex-
change for dirms and deenars), or one of
them determinate and the other not (as in
the sale of a silver vessel in exchange for
dirrns and deenars) ; because the tradition
enjoining a mutual seisin is absolute, and
makes no discrimination of these circum-
stances— Besides, although a silver vtssel
be determinate, still there subsists * doubt
with respect to its determination, inasmuch
as silver is considered in its nature as a
representative of prio/ ; and, in a case of
this nature, a doubt is a sufficient cause for
the necessity of seisin, because a doubt, in
matter relative to us/ary, is equivalent to a
reality — It is to b/- observed that vhat is
meant by mutual seisin, is that both paities
make seisfn prior to their separation ; whence
if the parties wa[k aside together, or sleep
in the placp of me ting, or become insen-
sible, the Sirf sile is not thereby rendered
null, because Omar has said "If the seller,
in SIRF sale should leap from the top of
the house, do you leap after him.
Gold may be sold for silver, at an unequal
rate provided the exchange take place upon
the spot.— THE sale of gold in exchange for
silver, at an unequal rate, is permitted, be-
cause these articles are of a different genus.
Still, however, in such case, mutual seisin is
indispensable, because the Prophet has said,
"The sale of gold for silver is usury unless
it be from hand to hand." If, therefore, the
parties separate before both or one of them
make seisin, the sale is invalid ; and hence
it is not lawful to stipulate an optional con-
dition, or an optional period, because such
stipulations are preventive of mutual seisin,
which is an indispensable condition. If,
however, a Sirf sale be contracted with an
optional condition, and the condition be
afterwards removed previous to the sepa-
ration of the parties, the Sirf sale is in that
case valid, because of the cause of its inva-
lidity being destroyed previous to its com-
plete establishment.
No act can be performed with relation to
BOOK Xv II]
SIRF SALE
313
he return until it be received. — ANY deed
with respsct to the ret'irn in a Sirf sale,
previous to seisin of it, is unlawful. If,
therefore, a person, having sjld a deenar for
ten dirms, should, previous to the seisin of
them, purchase a piece of cloth for them, in
that case the sale of the cloth is invalid, on
this principle, that the seisin of the ten
dirms was absolutely incumbent ; because
otherwise the Sirf s\le would be usurious ;
and as GOD has prohibited usury, it follows
that if the sale of the cloth were licensed,
an a* >so' ute commandment of GOD would
th-reby be defeated, — It is related, as an
opinion of Ziffer, thnt the salp of the cloth
is capable of being rendered valid ; because
dirms King undeterminate, it follows that
the price of the cloth rtlites to ten dirms in
an absolute manner, and not to the ten dirms
of the Sirf sale in a specific manner. Our
doctors on the other hand, argue that price,
in a Sirf sale, is also a subject of the sale :
because, as every sale must have a subject,
and as the articles, in a Sirf sale, are both
representatives of price, without any of
them having a r- reference ovtr the other, it
follows that either of them is tne subject ;
and the sale of the subject previous to the
seisin n unlawful.
OBJECTION — The consideration, in a Sirf
sale, is a representative of price, and there-
fore of an un determinate nature: whence it
would follow that it cannot be considered as
the subject, since the subject of a sale is
required to be determinate.
REPLY. — The subject of a sale is not re-
quired to be determinate ; for, in a Sillim
sale the thing on account of which the ad-
vance is made is the subject of the sale ; but
still it is undeterminate.
Gold may be sold for silver, by conjcctute :
but not gold for gold, nor silver for silver. —
THE sale of gold for silver, by conjecture,*
is lawful, because equality, in a sale or this
nature, is not required — It is unlawful,
however, to sell gold, for gold, silver for
silver, by conjecture, because in such sale,
there is a suspicion of usury.
In the sale of an article having any gold
or silver upon it, the price paid down is op-
posed to the gold or silver — IF a person sell,
for two thousand Miskals of silver, a female
slave whose real value is one thousand Mis-
kals, and on whose neck there is a collar of
silver equivalent to one thousand Miskals of
silver, and the purchaser having paid a thou-
sand Miskals of silver, ready money, the
parties then separate from the meeting, such
payment is considered to be the price of the
collar, because the seisin of so much of the
price of the whole was a necessary condition,
as the sale in that proportion was a Sirf saie ;
and hence it is reasonable to conclude that
the seller paid the exact amount of which
he knew the seisin to be indispensibly neces-
"That is, by a loose undeterminate esti-
mate.
sary. In the same manner, also, if he pur-
chaser the said slave with the collar, for two
thousand Miskals of silver, of which one
thousand is prompt and the other thousand
postponed, the prompt payment is considered
as the price of the collar, because the stipu-
lation of payment at a future period not
being lawful in a Sirf sale, and being per-
mitted in the sale of a slave, it is reasonable
to suppose that the parties in contracting
the sale, and stipulating the distant period,
intended to proceed according to law — If,
also, a person sell, for one hundred dirms, a
sword, of which the silver ornaments amount
to fifty dirms, and the purchaser pay imme-
diately fifiy dirms of the price in prompt
payment, such sale is lawful, and the pay-
ment made is considered to be for the price of
the ornaments, although the purchaser may
not have specified this. — The same rule, also,
holds if the purchaser say to the seller,
" Take th< s : fifty dirms in part of the price
of both" (that is, of the ornaments and
sword), because two things are sometimes
mentioned where only one is intended, and
this supposition is here adopted from the
probability of it. If, however, the parties
separate without a mutual seisin, the eale
is null with respect to the silver ornaments
because of its being in that degree a Sirf
sale, to the validity of which mutual seisin
is essential :~or, if the sword be so framed
as not to admit a separation of the orna-
ments without sustaining detriment, the
sale of it is in th s case also null, because
so s'tuated the separate sale of it is not
permitted, id the same manner as it is not
permitted to sell the beam ot a roof, — If, on
the other hand, the sword admit of a sepa-
ration of the ornaments, without detriment,
the sale, in the manner above mentioned, is
valid with respect to the sword ; but with
respect to the ornament it is null. — It is to
be observed thac the sale of a sword with
silver ornaments in exchange for dirms is
lawful only where the silver of the dirms
exceeds that of the ornaments ; and that, if
the silver of the dirms be either barely equal
to. or less than, that of the ornaments, — or
if it be not known wheather it b^ more or
less, the sale is invalid. The reason of the
invalidity in case of its not being known
whether it be more or less is, that the proba-
bility is in favour of its being invalid ; since
there are two causes of invalidity, namely,
equality and inferiority ; whereas there is only
one cause of validity, viz., superiority.
In the purchase of plate, if the parties
separate before payment of the full price ,
the sale is valid only in the proportion paid.
— IF a person, having sold to another a silver
vessel, should receive payment in part, and
both parties then separate, in that case the
sale is null with repsect to the amont re-
maining to be paid, but valid in the amount
taken possession of ; and the parties have
each a share in the property of the vessel ; -
because this sale is Sirf, or pure, with regard
to the whole of the subject, and consequently
314
valid in that degree in which the conditions
of a pure sale have been observed, and in-
valid in the degree in which they have been
omitted ; for the invalidity, in this case, is
not essential, but accidental, inasmuch as the
sale was valid in its formation, and after-
wards, in consequence ot the separation of
the parties after the receipt of a part, became
invalid with relation to part of the subject :
and hence the validity, which is accidental,
docs not operate upon the part in which all
the conditions of the sale have been ob-
served.
Or, if it be discovered to be in part the
property of another, the purchaser may re-
linquish the bargain --Ii- a person sell a
silver vessel which afterwards appears to bt»
in part the property of another, in that case
the purchaser has the option either of retain-
ing a right of property in the remaining part
of the vessel, or of cancelling the bargain
entirely : bacause partnership in a vessel is
equivalent to a blemish in it.
But this does not hold with respect to an
ingot, — (F a person sell an ingot of silver,
and part of it afterwards appears to be the
property of another, the purchaser is in that
case constrained to take the remaining part
at a proportionate price : — and he is not
allowed an option, in this instance, b cause
the division of an ingot of silver does not in
any shape injure it.
Where the article, on each side, consists of
two species of money, the sale at an unequal
rate is lawful.—- -THE sale of two dirms and
one deenar, in exchange for two deenars and
one dirm, is valid ; because in this case the
dirms are considered as opposed to the
deenars ; and as they are of a different
genus, an inequality in the proportion is
therefore admitted. Shafei and Ziffer main-
tain that this sale is unlawful ; and they
have disagreed in the same manner with
respect to the legality of the sale of one Koor
of barley and one Koor of wheat in exchange
for two Koors of wheat end tvio Koors of
barley. Their reasoning in support of their
opinion is that the seller and buyer have
opposed one total to another total ; and this
requires that every separate part of the one
be opposed to every separate part of the
other (in an indefinite and not a definite
manner) ;— -now in the opposing of each
genus respectively, to a different genus, a
modification is induced in this particular,
which is not lawful, notwithstanding such
a construction of the sale be the means of
rendering it valid. — In the same manner
as where a person, for ten dirms, purchases
a silver bracelet weighing ten dirms, and
again, for other ten dirms, purchases a piece
of cloth, and then disposes of both articles
together, by a Moorabihat contract (suppose)
for thirty dirms, in which case the Moorabihat
sale is invalid, although it be possible, by
supposing the whole of the profit to be ex-
acted on the cloth, to render it valid :— or,
where a person purchases a slave for one
thousand dirnas, and previous to the pay-
SIRFSALE [VoL. II
ment of the price, sells him, along with
another, for fifteen hundred dirms, to the
person from whom he had bought the slave
for one thousand dirms : for in this case the
sale is invalid in relation to the slave of a
thousand dirms because there is a possibility
that the other slave may have been worth
more than five hundred dirms ; and suppos-
ing this, it necessarily follows that the seller
has purchased the slave for a smaller price
than that for which he formerly sold him ;
although in this case it be possible to render
the sale valid by supposing the one slave to
be opposed to one thousand dirms, in a
specific manner, and the other to five hun-
dred dirms, so as to remove the possibility Ox
the seller having received him nt a smaller
price than that for which he had sold him ;
—or, where a seller, having exhibited two
slaves, of which one only is his property,
says to the purchaser, "1 have so^d to you
one of these slaves," in which case the sale
is invalid, notwithstanding it be possible to
render it valid by supposing that the sailer
meant his own slave :— or, where a person
sells a dirm and a piece of cloth for a dirm
and a piece of cloth, and both parties then
separate without making seisin,— in which
case the sale is invalid, although it be pos-
sible to render it valid by supposing the
dirms on each side to have been opposed to
the cloth of the other :- for, in all these
cases, although there be a possibility of
rendering the sales valid, snll they *fmam
invalid, for the reason already alleged.
The arguments of our doctors are, that the
opposition of a total to a total, provided it
be in an absolute manner (that is, without
any particular specification), admits of this
supposition, that the separate parts are op-
posed to the separate parts ;— as in the case
of an homogeneous sale, for instance, such
as a sale of two dirnrs for two dirms, in
which the unities on each side are opposed
to those on the other respectively ; whence
it each of the contracting parties respec-
tively take one dirm, and they then separate
from the meeting, the sale is valid to the
amount seised ; — whereas, if the separate
parts of the subject of the sale, instead of
being opposed to each other in a definite
manner, should be opposed to each other in
an indefinite manner, the sale in the amount
seised would not be lawful, since it must
necessarily follow that the amount seised by
each of the parties would stand opposed
indefinitely, to what was seised and what
was not seised. — It is therefore evident that
the opposition of a total to a total infers the
opposition of the unities respectively ; and
as this, to give validity to the contract in
question, must be in a definite manner, it.
is presumed to be so, in order that the con.
tract may be valid.— With respect to what
Ziffer and Shafei urge, that "a modification
is induced with regard to the requisites of
the contract," we reply, that a modification
is induced with respect to the quality of thel
contract, but not with respect to the oigina
BOOK XVII.]
SALE
315
requisites of it, because the original requi-
site of the contract is that a total shall be
transferred in exchange for a total, and this
contumes unaltered. — Analogous to this is a
case where a person sells the half of a slave,
shared in an equal degree between him and
another ; for in that case the law supposes
the sale to apply to his own share, in order
to its validity. The cases enumerated by
Ziffer and Shafei, on the contrary, are not
analogous to this in question. — The first
case (namely, that of a Moorabihat sale) is
not analogous, as it is not possible to suppose
that the whole of the profit is exacted on
the cloth, for, if so. the sale of the bracelet
would be rendered a sale of friendship, and
hence an alteration would take place in the
essence of the contract. The second case,
also, is not analogous, because the mode
there proposed for legalis'ng the sale is not
determinate, since in the same manner as it
is possible to construe the sum opposed to
the slave to be one thousand dirms, so also
is it nopsible to construe it to be more than
one thousand, in every different gradation,
untit it amount to one thousand four hun-
dred and ninety-nine dirms ; in opposition to
the case in question ; where th* mode pro-
posed is deter-* hnte The third instance,
also, is not analogous, because the force of
the sale there rests upon an indefinite object,
which is incapable of being the subject of
sale ; and as indefinity and specification aie
of opposite import, it is impossible to con-
strue the sale as applicable to any specific
article. In the last instance, on the other
hand, the sale is originally valid, and be-
comes otherwise from" an accident namely,
the separation of the meeting : but the
present question relates to a contract in its
original formation, and not to any adventi-
tious circumstances.
And so also, where the article, on one side
consists of a certain number of coins of one*
species and. *n the other, of an equal num-
ber, of the *pecies — A SALE of eleven dirms
in exchange for ten dirms and one deenar, is
valid :— and in this case ten dirms are con-
sidered as opposed to ten dirms and the re-
maining dirm to the single deenar ; because
in a sale of dirms for dirms equality is in-
dispensible and it is therefore reasonable to
suppose that such was the intention of the
parties ; and with respect to the remaining
part of the sale, namely, the opposition of
one dirm to one deenar, equality is not requi-
site, as they are not homogeneous
A deficiency of value, on one side, in point
of weight, may be made up by the addition
of any other article of proportionable value.
—Ir, in a sale of gold for gold, or silver for
silver, the subject, on one part, be inferior
in point of weight to the other, and there
be joined to the inferior something equal in
value to the deficiency arising from the
difference of weight, in this case the sale is
valid, without being abominable. If, on the
other hand, the value of the thing; so added
be not equal to the difference, still the sale
is valid, but abominable. But if, on the
contrary, the additional thing bear no value
(such as dust, for instance), the sale is not
valid, because of its being usurious, inas-
much as nothing is opposed to the difference
of the weight.
A aebt may be commuted in the course of
a Siif si/e.~ IK a person, indebted to an-
other to tfee amount of ten dirms, sell to his
creditor one deenar for ten dirms. and having
delivered the deenar to him, the parties then
commute the ten dirms which they recipro-
cally owe to each other, it is lawful. This
case, however, supposes the sale of the
deenar to relate to ten dirms in an absolute
manner, and not to the debt.
One pure and two base dims may be sold
for two base and one pure.— THE sale of one
pure dirm and two base ones in exchange
for two pure dirms and one base one, is law-
ful.—By a base dirms is to be understood,
such as passes amongst merchants, but is
rejected at the public treasury.— The reason
oflhe legality, in this instance, is thdt an
equality according to weight is established,
and the quality of purity is of no account.
Description of, and rules respecting, base
coinage— DIRMS in which the silver is pre-
dominant are considered as silver, and
deenars in which the gold is predominant
are considered as gold ; and a difference in
the proportion with respect to them in a sale
is consequently inlawful, in the same man-
ner as in the case of pure dirms or deenars.
Hence it is unlawful either to sell base
money in exchange for pure, or base in ex-
change for base, unless upon a footing of
equality in regard to weight. — In the same
manner, also, it is unlawful to borrow base
monev except according to weight : for
dirms and deenars, in common, are not free
from a mixture of base metal ; because gold
and silver do not receive the impression well
without a mixture of it, and it is sometimes
innate in them,
IF, however in dirms and deenars, me
base metal predominate, they are not, in
effect, dirms and deenars, because the law
adverts to the predominancy. Hence if a
person should purchase pur? silver in ex-
change for dirms of that nature, the law is
the same as has been already stated in the
case of a sword with silver ornaments. It
is lawful, moreover, to sell dirms and dee-
nars of this nature in exchange for others
of the same kind, at an unegua I proportion ;
for as these consist of two different materials
(namely, gold and base metal, or silver and
base metal), one genus may therefore be
opposed to another.— This, however, is never-
theless a Sirf sale, because of there being an
opposition of gold or silver on each side;
and hence mutual seisin in the meeting is
necessary : and in the same manner as seisin
of the silver or gold is necessary in the
meeting, so also is that of the base metal,
because a separation cannot be effected with-
out detriment.— The compiler of the Hedaya
observes, that the modern lawyers of his
316
SIRF SALE
fVot II.
country* do not pass decrees agreeably to
this doctrine ; for as base money is there
much in use, it follows that if the sale of it
at an unequal proportion were permitted,
the door of usury would thereby be opened.
WITH respect to mone in which the base
metal predominates, it is to be remarked
that, if it pass current by weight, purchase,
sale, and loans are transacted in it by
weight. If, on the other hand, it pass cur
rent by tale, all matters are transacted in it
by tale. — If, however, both modes prevail,
it is in that case permitted to follow either ;
for custom is decisive with respect to mat-
ters of this kind, provided they be not
otherwise ^etei mined by the ordinances of
the LAW. — It is also to be observed, that
money of this kind, whilst it continues in
use, is a representative of price, and is
therefore incapable of being rendered derer-
minate : but if it should not be in use, it is
considered as other wares or articles of mer-
chandize, and is therefore capable of being
rendered determinate.
IF dirms be adulterated to such a degree
at to pass current with some but not with
others, they are equivalent to Zeyf or base
dirms. Hence, if a person enter into a
contract for something in exchange for a
hundred specific dirms of this description,
the contract does not relate to those specific
dirms in particular, but to a similar amount
of base airms, provided the seller were
aware of the circumstance ; — but if otherw se,
it relates to a similar number of pure dirms ;
— because in the first case the assent of the
seller to receive the base species is established
by his knowledge of the baseness, — whereas
in the second case his assent is unestablished
because of his ignorance of the baseness
A sale for base dirms is null, if they lose
their currency before the period of payment.
— IF a person purchase wares in exchange
for base dirms, and, previous to the payment
of them, they should fall into general dis-
use, in that case the sale, according to
Ha nee fa, is null. Aboo Yoosaf maintains
that it is incumbent on the purchaser to pay
the value which these dirms bore on the day
of sale. Mohammed, on the other hand,
alleges that it is incumbent on him to pay
the value which they bore on the last day of
their currency. The arguments of the two
disciples are that the contract in itself is
valid ; but the delivery of the dirms becomes
impracticable from the cisuse of them ; a
circumstance, however, which does not in-
duce invalidity ; — any more than where a
person purchases an article for fresh dates,
and the season for those passes away ;— in
which case the sale is not invalid ; and so
also in the case in question. — As, therefore,
the contract is not invalid, but still endures,
it follows that, according to Aboo Yoosaf
the value the dirms bore at the time of the
sale is due, because from that period respon-
*Mawur al Nihr.
sibility for them takes place ; in the same
manner as in a case of usurpation ; — and
that, according to Mohammed (on the other
hand) the value they bore on the last day of
their currency is due, since at that period
the right of the seller shifted from them to
their value — The argument of Haneefa, is
that the price is destroyed by the disuse ;
for money is the representative of price
solely from custom, and hence this property
is annulled from disuse. The sale, there-
fore, remains without any price being in-
volved in it ; and is consequently null ; and
as the sale is null, it is of course incumbent
on the purchaser to restore the goods to the
seller, provided they be extant ; or, if other-
1 wise, the value which they bore on the day
he obtained possession of them ; in the same
manner as in an invalid sale.
Rules with respect to copper coinage.— A
SALE in exchange for Faioos is valid, because
they are considered as durable property. If,
therefore, the Faioos pass in currency, the
sale is lawful, although they may not have
been specified, —because fraloos are, from
custom, representatives of price, and conse-
quently stand not in need of specification.
If, however, they should not pass in cur-
rency, it is in that case requisite that they
be particular specified, in the same manner
as other articles of merchandize.
IF a person purchase wares for Faioos,
which at that time passed in currency, but
which previous to the payment of them fall
into disuse, the sale is in that case null,
according to Haneefa : contrary, however,
to the opinion of the two disciples.— The
difference of opinion upon this pome is
analogous to what has been already men-
tioned in treating of dirms in which the
alloy is predominant. .
IF a person borrow Faioos, and their
currency should afterwards cease, then, ac-
cordine to Haneefa, the borrower must make
repayment in similars ;* because Karz [a
loan of money] is equivalent to Areeat [a
loan of substance], and therefore requires
the restoration of the actual article with
respect to its nature, that is, its value.— The
property of representing price, moreover, is
merely an adventitious property, in copper
coin, to which no regard is had in the bor
rowing of them ; on the contrary they are
borrowed on the principle of their being
similars ; and this quality they tetam after
the disuse of them as money, whence it is
that a loan in them is valid after they have
lost their currency —According to the two
disciples, on the contrary, the borrower must
in this case pay to the lender the value ot
the Fal oos ; for their quality of representa-
tion of price being annulled by the disuse,
•By similars is always understood any
articles compensable by an equal number of
the same description, such as eggs for eggs,
Faioos for Faioos. &c. It is treated of at
large in various other parts of the work.
B OK XVII ]
S'RF SALE
317
it is therefore impracticable for the borrower
to restore them with the qualities they pos-
sessed when he received them ; and hence,
as the payment of similars would be an
injury, it is required that he pay the value .
in the same manner as holds where a person
borrows any articles of which the unities
are similar, and the whole genus of which
afterwards becomes extinct. According to
Aboo Yoo«?af, their value must be fixed from
the day of seisin ; and according to Moham-
med, from the last day of their currency,
in conformity with what has been already
explained. This difference of opinion origi-
nates in a difference of doctrine respecting a
case where a person usurps an article of the
class of similars, and of which the s milars
afterwards bee >me exttn:t,* when, accjr li g
to Aboo Yoosaf, the usurper is responsible
for the value the article bore on the day of
usurpation ; and according to Mohammed,
for the value it bore on the last day of its
existence. It is to be observed that the
opinion of Mohammad is founded urx>n
tenderness to mankind, and that of Aboo
Yoosaf on conveniency
It • is lawful for a person to purchase any
thing in exchange for a half dirm of Faloos ;t
and in this case he required to pay the
number of Faloos adequate to the price of
half a dirm In the same manner, it is
lawful to purchase aiy thing for the Faloos
of a drink I of silver, or a Kerat § of silver.
In all these cases, Ziffer is of opinion that
the bargain is unlawful, because Faloos
being an artic'e of tale, estimated by num-
ber and not by their relation to dirms or
daniks, a specification of the number ought
therefore to have been made. The reason-
ing of our doctors is, that the exact number
of Faloos adequate to the price of a half
dirm, or danik, is known (for the case
question proceeds on the supposition of such
a knowledge), and that a specification of
the number is therefore unnecessary. If
the purchaser were to say, "I have bought
this thing for the Faloos of one dirm, or two
dirms," the bargain in that case also valid,
according to Aboo Yoosaf ; for this expres-
sion means the number of Faloos to which
the price of one or two dirms is adequate,
and not the weight It is related as an
opinion of Mohammed, that a sale for the
Faloos of one dirm is not lawful; but that
a sale for the Faloos of any thing under a
*Such as fruits, or other articles which
are to be had only at particular seasons of
the year.
fThat is, for Faloos to the value of half
a dirm.— (The distinction, in this instance,
turns entirely upon the nature of the phrase
in the original idiom )
I A small silver coin, the sixth part of
a dirm.
§ A Carat, the twenty-fourth part of an
ounce.
dirm is lawful, as it is customary to purchase
hings for Faloos, where the value is not
idequate to a dirm, but not otherwise,
-awyers have observed, that the opinion of
Aboo Yoosaf is the most approved, especially
n countries where the practise of sell-
ng and purchasing for Faloos is common,
nd where, of course, the rate they bear,
with respect to dirms, is known and ascer-
ained.
IF a perso^, hiving delivered a dirm to
Sirraf, or nhonev changer, should say to
lm, "Give ~*e Faloos in exchange for one
nlf of this, and a half dirm wanting one
grain of silver in exchange for the other
lalf," in this case the sale, according to the
wo disciples, is valid with respsct to the
me half in exchange for Faloos, and invalid
with respect to the other ; because the sale
f a half dirm in exchange for Faloos is
awful (as has been already explained) ; but
.he exchange of a half dirm in exchange
c a half dirm wanting one grain of silver,
usurious, and, consequently, unlawful.
Agreeably to the tenets of Haneefa, the
ale is in this case completely null, because
he whole is comprehended under one con-
ract, and the invalidity beiig strong, with
•espect to a part, does therefore communi-
cate itself to the whole If, however, the
word "Give" be repeated, by the person
saying "Give me Faloos in exchange for
one half, and give me a half dirm wanting
one grain in exchange for the other half,"
the opinion of Haneefa, in such case, accords
with that of the two disciples, because here
exist two separate sales, one valid, and the
other invalid. If the purchaser, withaut
opposing the halves of the dirm, were to
say, i Give me, in exchange for this dirm,
the Faloos of half a dirm, and a half dirm
wanting one grain ; "the sale is valid in
full, because, in this case, it is construed to
an opposition, on the one hand, of one
half dirm wanting a grain in exchange for
one half dirm wanting a grain ; and on
he other, of a half dirm with the super-
addition of a grain for the Faloos of a half
dirrn ; and this is lawful.
BOOK XVIII.
OF KAFALIT, OR BAIL.
Definition of the terms used in bail. —
KAFALIT, literally, means junction. In the
language of the LAW it signifies the junction
of one person to another in relation to a
claim (some have said, in relation to a debt
only ; but the first is the most approved
definition).— The person who renders obli-
gatory on himself, the claim of another,
whether it relate to person or property, in
318
BAIL
[VOL II.
termed the Kafeel, or surety:— the claim itself
in favour of which bail is given, whether
it relate to the person or property, is
termed Makfool-be-hee ; — the claimant is
termed Makfjol-le hoo ; and the principal,
or person who gives bail, is termed Makfool-
an-hoo. — In cas2s of bail for the person,
however, the terms Mikfool-be hee and Mik-
fool -an -hoo relate to the same thing.
Chip, I. — Introductory.
Chap II — Of Bail in which two are con-
cerned.
Chap. III. — Of Bail by Freemen in be-
half of Slaves, and by Slaves in
behalf of Freemen.
CHAPTER I.
Distinction. — BAIL is of two descriptions.
I. Bail for the person, which is termed
Hazir-Zaminee. II. Bail for property, winch
is termed Mal-Zaminee.
Bail for the person. — BAIL for the person
is valid ; and in virtue of it the surety is
bound to produce the principal, or person
whom he has bailed.— Shafei is of opinion
that bail for the person is not valid, because
the surety undertakes and renders obliga-
tory on himself a delivery which he is not
capable of performing, inasmuch as he
possesses no powjr or authority over the
person of the principal : contrary to bail
for property, as in that case the surety
possessing power and authority over his own
property is thereby enabled to discharge the
obligation he has contracted,— The argu-
ments of our doctors upon this point are
twofold. FIRST, the Prophet has said, "The
surety is responsible," which is a proof that
both modes of bail are lawful. SECONDLY,
the surety is in a degree capable of delivering
the person for whom he is bail, as he may
inform the claimant of his place of abode,
and thus remove ^the bar between them,
since, after obtaining such knowledge, the
claimant may demand the aid of the officers
of the Kazee, by whose means he umy secure
his presence. There is, moreover, a neces-
sity amongst mankind for this kind of bail ;
and the characteristic of bail, namely, a
junction of one person to another in relation
to a claim, is observed in it,
Under what forms contracted. — BAIL for
the person is contracted, where any one says :
"I have become bail for the person of a
particular man." or, "for his neck," or, "for
his soul," for his body," or, "for his
head," or "for his face ;" because some of
these words really mean, in their common
acceptation, the whole of the person, and
others bear that sense metaphorically, as has
been already explained under the head of
divorce. — Trie effect is also the same when a
person says, <§I have become bail for the
half of a certain person," or "for a third of
him," or "for a part of him ;" because the
person, in the case of bail, being incapable
of division of dismemberment, the mention
of a part indefinitely is therefore equivai en
to the mention of the whole. It is otherwise
where a person says, "I have become bail
for the hand" (or" the foot'), because
neither of these parts are ever used to denote
the whole of the person, and the bail so given
is therefore invalid.
IF a person say, "I am responsible [Zamin
fcr such a person," it is a valid bail : be-
cause this is an express declaration of the
intention of bail. It is also a valid bail, if
a person say, " This is upon me." or, 'This
is towards me," because both these ex-
pressions indicate an obligatory engagement.
In the same manner, also, bail is contracted
by the words Zeyim and Kabeel, for both of
these signify bail, and hence it is that bail-
bonds and other instruments of obligation
j are termed Kabala. If, on the contrary, a
| person say, "I arn responsible for the nc-
| toriety of a certain person," bail is not con-
! tracted, since the responsibility, in such case,
j relates merely to the notoriety and not to the
i claim. Hence, if a person should say, in the
Persian language, "His acquaintance is upon
me," he does not thereby become bail — If '
however, he should say, "He is my ac-
quaintance," lawyers are of opinion that he
becomes bail because of ancient custom
The surety must deliver up the person /or
| whom he is bail at the stipulated period ; and
in failure of this is liable to imprisonment —
IF, in a contract of bail, it be stipulated that
"the surety shall, at a fixed period, deliver
over the principal or person bailed to the
claimant," it is in that case necessary that
he be delivered to the claimant if it be re-
quired, either at the fixed period, or at any
time afterwards, in order that the surety
may acquit himself of the engagement into
which he has entered. If, therefore, he
deliver the person bailed on the demand of
the claimant, he then becomes released from
Kis engagement ; but if he refuse to deliver
him, the magistrate must in that case im-
prison him for failure in the. performance of
his engagement. He is not, ' however, to be
imprisoned on the first summons, as he may
not then know for what reason the Kazee had
summoned him.
// the principal disappear, the surely must
be indulged with time to search for him ; and
the contract is fulfilled by delivering up the
principal at any place which admits of liti-
gation.— IF, in a case of bail for the person,
the principal should disappear, it is in that
case incumbent on the Kazee to afford the
surety a sufficient period to go and come in
search of him ; and afterwards to imprison
him, in case of his not producing the prin-
cipal, because he is then proved to have
failed in his engagement. — If, however, he
produce the principal and deliver him to the
claimant, in such a place as may enable him
to litigate his suit with him, the surety is
then released from his engagement of bail,
because of his performance of the obligation
he had contracted ; and the end of the con-
tract is likewise answered, as it only requires
BOOK XVIII.— CHAP. I.]
BAIL
319
that he deliver him once ff he should have
agreed to deliver him "in the assembly of
the Kazee," and afterwards deliver him in the
maiket-place, still he is released from his
enagement, because the object of the bail is
answered. (Many have observed that in the
present age the surety would not in such
case be released from his obligation ; because,
cs the probability in this age is that the
people would aid the defendant in preventing
his appearance in the assembly of the Kazee,
and that they would not assist the ciaimant
in enforcing it, such a clause is therefore
beneficial.) — If, however, the surety deliver
over the principal in a desert, he is not
released from hi* enL-ag^rncnt. bacause the
claimant couid not in such place litigate his
suit with him, and the object of bail "rema;ns I
therefore unaccomplished In the same
manner, he is not released from his obligarion
in case he deliver him up in a village where
there is no Kazee ; because, where there is
no Kazee, the claimant can obtain the decree.
If he should deliver him up in another city
than that in which he had entered into the
contract of bail, he is then (according to
Haneefa) exempted from any further obliga-
tion.—The two disciples are of a different
opinion, because it may often happen that
the witnesses are in the city in which the
contract was formed— If, moreover, he
deliver over the principal in the prison,
where he has been previously confined by
another for a different cause, he is not
released from his engagement because t.c
claimant has no power, in such situation, to
litigate his suit with him.
The death of the principal releases the
suiely. — IF, in a case of bail for the person,
the principal should die, the surety is then
released from his engagement ; first, because
of the impracticability of producing the
person ; and, secondly, because in the same
manner as the appearance of the principal is
by such event defeated, so also is the enforce -
me t of it on the part of the surety.
And the death of the surety annuls the
cont act.— THE same rule also holds in case
of the death of the surety ; because it then
becomes impracticable for him to deliver up
his principal ; and, also, because his property
is not of an analogous nature, so as to admit
a discharge of the obligation by means of it.
It is otherwise in the case of bail for pro-
perty, for if the surety for property die, the
obligation of bail does not then cease, since
it is necessary to discharge it by means of
his property, to whatever amount he may
have rendered himself liable,
If the claimant die, the heirs or execuiors
may demand the fulfilment -IF the claimant
should die, his executor (if there beany), or
fi 3fil'T;hi8heil8t areentitle<* to claim the
fulfilment from the surety ; because heirs
and executors represent the dead.
«rV *su!ety.isrel*°s*<lh delivering up his
suretee.— IF, m a case of bail for the oerson
the surety should not stipulate his re ease
from the bail on the delivery of the person,
he is nevertheless released on such delivery,
because this being the intention of the con-
tract, it is consequently established indepen-
dent of an express declaration. It is to be
observed, likewise, that the surety becomes
exempt from his obligation on the delivery
of the person, without the acceptance of the
claimant being required as a condition, in
the same manner as in the payment of a
debt.
Or, by delivering himself up. — THE effect
is also the same, in case the principal should
of himself present his person, as if he shoul d
say, " I have presented myself on account
of the bail of a particular person who has
become surety for me." This is approved
because the surety being entitled to contend
with him, in order that he may deliver him-
self up, it is therefore permitted to him to
deliver himself up voluntarily to prevent
contention.
Or, by his being delivered up by a mes-
senger.— IT is also lawful for the agent or
messenger of the surety to deliver the per-
son, as these are the lepresentatives of the
surety himself.
The payment of the claim miy be suspended
upon the non-pi oduction of the principal.
— I* a person become bail for the appearance
of another, on this condition, that, if he do
not deliver him within a particular period,
he shall then be responsible for the claim
upon him (a thousand dirms, for instance,
and he afterwards fail of producing him
within the fixed period, he is then bound to
make good the claim upon the suretee ; be-
cause, in '.his case a bail for property is sus-
pended on the condition, namely, the failure
in producing the person within a fixed period;
and such suspension is valid, because of the
custom of mankind.
But still the bail for the person remains
in force — HENCE, when the condition is not
fulfilled, the surety becomes responsible for
the claim ; and he is not, nevertheless, re-
leased from the bail for the person ; because
bail for the person and bail for the property
are not incompatible. — Shafei maintains that
the bail in this instance is not valid ; because
bail for property induces a responsibility for
property in the same manner as sale : and
hence it is unlawful to suspend it on a
matter of doubt and uncertainty ; in the
same manner as in the ca?e of sale. — The
reasoning of our doctors is that bail for pro-
psrty is ultimately like sale, inasmuch as it
entitles the surety to repayment from the
principal of what he advanced to the claimant
on his account,— and that in the beginning
it resembles a gift, being an acquiescence
in responsibility without any exchange. — In
due observance: therefore, of both these cir-
cumstances, it is declared that the suspension
of it, on an uncertain condition (such as the
blowing of the wind, the falling of the rain,
and the like), is invalid ; but that it is valid
if suspended on a certain condition, such as
in the case in question,
If the timt be fixed, and the suretee rffa in
320
SALE
[VoL. II.
the interim, the surety becomes responsible
— IF a person be bail for the appearance of
another " on the morrow," urd r a condition
of answering the claim upon the other him-
self, in case of failure, and the principal die
before the morrow, he is in that case surety
for the property; because here the condition
on which he agreed to the responsibility
clearly takes place,
Case of bail for property, connected with
bail for the person.— IP a person claim one
hundred deenars from another, either with
or without an explanation of their quality,
and a third person become ball for the person
of the debtor, under a condition tint ''if he
do not deliver him on the morrow, he^ shall j
be responsible for an hundred Jdeenars," and
he fail in the delivery of him on the next
day. he is in that case responsible, according
to Haneefa and Aboo Yoosaf. for the one
hundred deenars. — Mohammed maintains
that if the quality of the deenars be not
explained previous t^ the acceptance of the
bail, the claimant has no right afterwards
to explain their quality and demand them
from the surety.— His arguments in support
of this opinion are twofold. FIRST, the
surety has reated indefinite money upon a
matter of doubt and uncertainty, inasmuch
as he has not specifically referred the one
hundred deenars to those which were j
claimed (for which reason the bail is in- j
valid, even if a definition of the quality I
have been previously given) —SECONDLY,
ths claim of an hunched deenars. wiih^uc
a definition of their quality, is invalid ;
whence no obligation lies on the surety tj
produce the debtor ; and as, where the pro
duction of the debtor is not obligatory on
the surety, the bail for the person is of c n-
sequence invalid, it follows that the bail for
the property is also invalid, since this rests
upjn the other. — (From what is here ad-
vanced it appears that the bail in question is
valid if the quality of the deenars be speci-
fied.)— The argument of the two elders is
that the deenars. mentioned by the surety
do evidently, from the circumstance of the
case, relate to those claimed. — Ii is, more-
over, a frequent practice to keep a claim
in a state of doubt and uncertainty.;— -The
claim in question, therefore is, valid, in this
way, that the claimant will (it is to b» ex-
pected) explain the quality, and such expla-
nation will bs appl ed to the original claim :
— and upon the claim becoming valid, the
first bail (namely, bail for the person) be-
comes valid ; and in consequence thereof the
second bail (namely, bail for th<* property)
also becomes valid.
Bail for the person cannot be exacted in
case* of punishment or setaliation. — BAIL for
the person is not lawful in cases of punish-
ment and retaliation, according to Haneefa ;
— that is, the Kazee has no power to exact it
by compulsion.
But may be taken if off or ed by the accused,
— IF, however, the person upon when pun-
ishment or retaliation is claimed, should in a
voluntary manner give bail of himself, it i*
admissible in the opinion of all our doctors ;
because that which is the end of bail f >r the
person is in this case also answered, since
the production of the person of the accused
is hereby secured. — It is to be observed that
the person upon whom punishment or re-
taliation is claimed, must not be imprisoned
until eviderce be given, either by two people
of unknown character (that is, of whom it
is not known whether they by just or unjust),
or by one just man who is known to the
Kazoe ; because the imprisonment, in this
case, is founded on suspicion, and suspicion
cannot be confirmed but by the evidence of
two men of unknown character, or of one
just man. It is otherwise in imprisonment
0,1 account of property; biciusethe defen-
dant, in that instance, cannot b« imprisoned
but upon the evidence of two just men ;
for imprisonment on such an account is a
grievous oppression, and therefore requires to
be grounded on complete proof. — In the Mab-
soot, under the head of duties of the Kazee,
it is mentioned that, according to the two
disciples, the defendant, in a case of punish-
ment for slander, or of retaliation, is not to
be imprisoned on the evi fence of one just
man, because, as the exaction of ba 1 is in
such case (in their opinion) lawful, bail is
therefore to be taken from him.
A pledge or bail may be accepted for the
payment of any fixed tribute — IT is lawful
to take a pledge or accept of bail for the
payment of any fixed tribute, because tribute
being a debt of which the payment is de-
manded, it may be discharged by means of
the pledge or the bail, and hence the objects
of these contracts is unswered.
IF bail for the person be first taken from
one and afterwards from another, the bail
in that case holds with respect to both ; for
the design of bail is to fix the obligation of a
claim, and this may be extended to may.
so as to render them severally responsible.
Besides, as the object of bail is security, this
is increased by the taking of bail from
another ; and hence there is no incongruity
in the existence of both at the same time.
Bail for property is lawful, if founded
upon a just debt whether the extent be known
ar uncertain. — ALL that has been here ad-
vanced relates to bail for thi person. — With
respect to bail for the property, it is lawful
whether the extent of the property be known
or uncertain, provided it be founded on a
just debt, — that is, a debt which cannot be
annulled but by payment or exemption ; in
opposition to a claim of person which is a
debt due by a Mokatib to his master, —
because that may possibly become null
without payment or exemption, by an
inability in the Mokatib to discharge it.
• roperty known in the extent is (for
instance) where a person says to a claiman
"I have become bail for a person who owes
you a thousand new dirms." The nature of
uncertain property may also be explained
by any axampje ; as for instance, where a
BOOK XVII I.-CHAP I]
BAIL
sal
person says, "I have become bail for the
debt which a particular person owes of
you ;" or, 'I have become bail in this sale
for whatever claim may hereafter be made
on the subject of it " — which bail is termed
Kafalit-be'1-dirk, or bail for accidents, that
i* for whatever may happen In short, bail
for certain or uncertain property is la vful,
because Kail rests upon a broad foundation,
and a small degree of uncertainty in it is
therefore of no conseq-jenc*. Besides, all
our doctors are agreed in the legality of
K.frit bc'1-dirk, or bail for what may
happen ; what is a convincing argument
of the legality of bail for uncertain property .
Moreover, bail is lawful in the case of
unintentional Shuo^jifa woun-l occasioned
by the throwing of a stone] although there
be in it a great degree of uncertainty ;
because it is possible that death may ensiif.
which nduces retiliatim: and it is aUo
possible th*t a recovery may take place in
which case a fine of property only is required.
Now if, r otwithst t ruling this degree of
uncertainty, the bail be lawful, it follows
that it is in the same manner lawfu1 in the
case of unc-rt in property
In a case of bail, the c'aimant is at liberty
to make his demand either from the surety
or the principal — THE person to whom the
bail is given is at liberty to demand payment
either from his debtor, who is the print inal,
or from his surety, because bail signifies a
junction of personal responsibility to the
personal res o isibility of the debtor, in a
claim ; and this does not imply an exemp-
tion to the debtor from the claim : on the
contrary, it marks the continuance of his
responsibility ; — unless such exemption
should have been specified as a condition
in the contract of hail, in which case the
contract of bail becomes a contract of
transfer, in the same manner as a transfer
becomes bail if a condition of exemption
to the debtor be not specified : because
regard must be had to the spirit of the
contract ; and in the former instance the
contract bears the sense of a transfer, in
the same manner as, in the Utter, it bears
the sense of bail
Any may call upon either or both.— -Ip
the person to whom the bail is giv *n call
up>none of the two parties. — that is, upon
either the debtor or the surety, —he is
entitled also to call upon the other ; and he
may, if he please, call up in both,— It is
otherwise where the proprietor demands
compensation for his pronerty from one of
two usurpers (that is, from the original
usurper, or from another who has usurped
it again fro-n him ; for he cannot then
demand it from the other ; because upon
his agreeing to accept compensation for the
usurped property fiom one of them, he
thereby constitutes him proprietor, since
option ot compensation involves investiture
with right of property ; and hence the
impossibility of his afterwards constituting
the other proprietor. A claim in virtue of
bail, on the contrary, does not involve an
investiture with right of property. — There
is therefore a difference between these cases.
Bail may be suspended upon any fit and
proper condition. — THE suspension of bail
uoon a condition is lawful. — Thus is a person
say to another. "If you sell your gx>ds to
Z^yd, the price is upon me," — or, "If any-
thing be due to you from a certain person,
thit is u 'On me,"— or, ''if a certain article
be usurped from you, the da nage is upon
me," — in all these cases the bail is lawiul,
bacau e all our doctors have Agreed upon the
legahty of Kifalit-b~»'l-dirk, when suspended
on a condition It is to be observed, how-
ever, trnt a I- ho ugh conditional bail hie law-
ful, still it is requisite that the condition
o i whic i it is suspended be of a nature
adopted to the contract of bail, —either by
resting upon the obligation of a right, (as if
the s-irety should siy. 'If the subject of
the sale b: not chimed by another, I hold
myself responsiole for the price)," — or, by
resting upon the po sibility of the exaction
of a debt (as if he were to say, "upon
Zeyd [meaning the principal] arriving," &c.),
or, by resting upon ths im possibility of the
exaction of a debt (as if he were to say,
"unon such a person [ neani 'g the principal]
disappearing, £c ), for the suspension upon
a condition not of a fit nature (such as,
upon the falling of rain, or the blowing of
wind), is unlawful — In the same manner
also, it is unlawful to stipulate these events
as the period for payment of debt ; — a* if a
person should say, ''i have become bail for
the debt due to you by a certain person
until the rain fall, or the wind blow" in
which case the bail is valid, out the con-
dition is invalid, and therefore an immediate
payment of thi money is required ; because
the suspension of bail on a condition is valid,
and it does not become invalid from the in-
validity of the condition, being similar to
the case divorce and emanci.ation.
Where the bail is given in an unlimited
manner, the amount is ascertained by testi-
mony, or, that failing by the , declaration of
the surety. — IF the surety say to the claimant
"I am bail for the debt due to you by a par-
ticular person," and it be afterwards proved,
by witnesses, that the debt amounts to one
thousand dirms, in that case the surety is
answerable for that sum, because proof by
testimony is equivalent to that by actuil
sight. But if the amount of the debt should
not be proved by witne>ses, the averment of
the surety is in that case to be credited in
the amount which he may acknowled : for
with respect to whatever sum may be ILged
beyond his own acknowledgment, he is con-
sidered as the defendant. — Hea^e if the
principal acknowledged a greater amount
than that acknowledged by the surety, it
cannot bj admitted to operate against him ;
because, considered as an acknowledgment
or declaration with regard to another, it is
invalid as an acknowledger has no power
over another.
322
BAIL
[Vo,. II.
with ulation to hinvelf ; for he ha* power
over his own person.
BJ I may be contracted with or without, the
consent of the pnncipal — IT i^ lawful to
become bail either with or without the desire
of the principal ; becau-e the tradition with
respect to it is absolute ; and does not restrict
it to the desire of th« principal Bail, more-
over, being an obligatory engagement, is a
deed relative to the surety hinvelt, in which
there is an advantage to the claimant anil on
detriment to the principal: for if lie should
have become bail without the desire of the
principal, then he has no right to apply to
him for what he may pay on his account ; or
if, on the other hand, the bail was ioritr.u tod
by his desire, then the principal ha< ex-
pressed his acquiescence in his claim of re-
payment from him, to which he is entitled
because of his having made the payment in
virtue of authority from him. — whereas he
has no right to repayment in case of having
become bail without the desire of the nmci-
pal, as the payment so made was a gratuitous
deed
Circumstance's under which a surely ha*
ur has not a right to demand compensation
from his principal, — It is to be observed
that the surely has a right to a repaymen',
from the principal, of the sum which he
may have advanced on his account in virtue
of the responsibility he contracted by his
desire — As for instance, if the debt be one
thousand good dirms, and he pay the claim-
ant one thousand good dirms, he is then
entitled to the repayment of one thousand
good dirms — But if he should make a pay-
ment of a nature di^fftrent from hisenuaue-
ment,—- as if, having become bail for one
thousand good dirms, he nhould pay the
claimant one thousand lad, or vice versa, —
he is in that case entitled to receive fiom the
principal the full amount for which, by his
desire, he had become responsible : because
the surety, from the payment of the debt,'
becomes proprietor of it, and stands there-
fore in the place of the creditor : -in the
same manner as if he had become proprietor
of it by virtue of a gift, or of inheritance
(that is, as if the claimant had bestowed
on him a gift of the debt due to him hy the
principal, and permitted him to tak. posses-
sion of it,— or, as if the surety had suc-
ceeded to the debt in right of heritage;—
or, in the same manner as where the person
to whom a deLi has been transferred acquit es
a property in ihe debt by either of these
modes) — It is otherwise in the case of a per-
son instructed to pay a debt ; for if a person
be desired by another to pay a debt on his
account, and pay it accordingly, he is in that
cabe entitled to receive from the other the
«»xact sum he has paid on his account,
although the debt relate to bad dirms, and
he pay it in good ; because a person so m
structed, having incurred no responsibility,
has therefore no right to become proprietor
ot the debt in virtue of is having paid it,
—It is otherwise, also, if a person, having
become bail for a debt one thousand
dirms, should compound with the claimant
for the payment of five hundred dirms ; — for
in this case he is entitled to receive only five
hundred dirms from the debtor, because
| composition is similar to annulment of part
; of the debt, and the case is therefore thf
I same as if the claimant had remitted part of
the debt to the surety : and is, in case of
; remission of the debt by the claimant, the
I surety his no right to receive anything from
the debtor.— it follows that, in the case of
• composition also, he has no right to receive
more than he has actually paid
I He cannot c/aitn lennbu \ement until he
\ lias actually discha>gfd the claim up-)n the
j principal. — A SUKETY has no right to advmce
; any claim on the principal until he. malre
payment on his account, because he iloes not
become proprietor of the debt until he pays
it It is otherwise with respect to an agent
for purchase ; as he is entitled to receive
from his constituent the price of the mer-
chandise p evious to the payment of it on
his dart. Hie reason of is this is thattlurc
virtually subsists a contra:t of exchange
betuejn the constituent and his agent ;
because the ri ht of property is fir- 1 estab-
lished in th<* agent, and afterwards shifts to
the constituent ;— and hence thev stand to
each other in the relation of buyer and
seller : — when it is permitted to the agent
to detain the. meichanrhze from his consti-
i tuent until he receive the price from him
| But he mav proceed as the c/a'ttunt pro-
! ceeds — IF the claimant importune the surety
! in pursuit of his clain, then the surety may
! in the same manner importune the principal
I or suretee*. If, also the surety be imprisoned
by the claimant, he is in the same manner
I entitled to imprison the principal
i He is released hv a discharge to the Drinci-
j pal ; hut the principal i.s not released by an
! exemption to him.— IF the claimant remit
I the debt to the suretee. or receive payment of
1 it from him, the surety is in thit case re-
leased from his en^ageim-nt, because the
debt, in reality, is due by the suretee :— but
if he exempt the surety, the suretee (or
principal) does not thereby become exempted
from his debt : because the surety is merely
a dependant ; and, also, because he is liable
only to a claim, whereas the debt exists in
the principal independent of such claim.
And the same of a suspension of the
c\(iim — IF the claimant allow the principal
a respite from his claim, or suspend his claim
upon him to a more distant period, such
respite or suspension of claim operates also
in favour of the surety ; — but if he grant a
respite r.f his rlaim to th • surety it d »es ro c
operate in favour of the principal ; — becaus
respite or suspension, as being a temporary
remission, is therefore analogous to an abso-
lute remission. — It is otherwise where, the
debt being immediately due, the creditor
accepts bail for the payment at the period of
a month afterwards ; for this suspension of
his claim for a month operates also in favour
BOOK XVIII.— CHAP I]
BML
323
of the principal, because here the period of
suspension agreed upon is a circumstance
annexed to the debt, which, at the time of
contracting the ball, was immediately due,
A suretyt compounding the debt of the
princ pal with the claimant, discharges both
from any further demands — IF a surety, in
a debt of one thousand dirms, compound
with the creditor for a payment of five hun-
dred dirms in that case both the principal
and the surely become exempted from their
respective obligations for ihe remaining five
hun ired dirms ; — because the surety having
referred the composition to the thousand
dirms due by the principal, the principal
beco ties thereby i*-l Msed fro 11 his oniigition
by the payment of (we hundred dirms ; for
composition is a cancelling of part of the
debt ; — and th*: release of the deotor fiocn
his obligation occasions the release of the
surety.
And has a claim upon the surety for what
he pays in composition. — HE is also in this
case entitled to fiye hundred dirms from the
surety, provided he entered into ihe hail
with his consent, — It were otherwise if the
surety ahould compound the debt for some
thing of a Different species (as if, instead of
the dirms, he should agree to pay a particular
number of deenars, or any article of mer-
chandise) ; for in such case he is entitled to
a full payment of the debt, since such com-
position is in the nature of a contract of
exchange, an 1 the sure y becomes proprietor
of the debt in virtue of his having given a
consideration for it. i
A smvtv compounding for an exemption \
on his own behalf does not discharge the
principal. — IF the sur*»tv compound with the
creditor for an exemption from the obligation
contracted by him in virtue of the bail, the
principal is not thereby exempted, because
the said composition is merely an exemption
granted to the surety from a claim upon him.
— Thus, for instance, if the surety for one
thousand dirms compound with the creditor
for one hundred dirms — in other words, if
the creditor agree that, on condition of his
paying or»e hundred dirms, he will exempt
him from the rest of his obligation, — in that
case he becomes exempted from respo.isi
bility ; and, provided he had become bail
by desire of the principal he is entitled
to receive one hundred dirms from him,
whilst the creditor retains his claim on the
principal for the remaining nine hundred
dirms.
Cases in which the surety's right against
the principal depends upon the terms of his
exemption or discharge. — IF a claimant say
to the surety, who had become bail by desire
of the principal, "You are enlarged from
the claim towards me," in that ca-e the
surety is entitled to receive the amount in
qu stion from the principal ; because, accord-
ing to the rules of grammar, this sentence,
in which the preposition from with respect
to the object, and that of towards with re-
spect to the claimant of such object, are
used means that the claim has been dis-
charged — Hence the claimant in this case,
is held to have made an acknowledgment of
the discharge of the claim ; and for this
reason the surety is entitled to receive the
payment of it from the principal. — But if he
should merely say, "I have enlarged you,"
the surety is not entitled to anything from
the principal ; b cause his enlargement
being here expressed without by mention
made of its operation towards another, is
considered as an annulment, and not as a
declaration of di -charged. — If he should only
say, "you are enlarged," without adding,
'towards me " in thit case there is a dis-
agreement amongst our doctors, — Mohammed
alleges that it^is sim lar to the second
instance — "1 have enlarged you " Aboo
Yuo.af, on the other hand, is of opinion that
it is similar to the first instance — "You are
enlarged from the claim towards me." Some,
again, have said that, in all these cases, if
the claimant be present, it is requisite to
demand an explanation from him, since he
has used a d ibious expre^sio.i,
An enlarge, nent from bad cannot be sus-
pended upon a condition.— THE suspension of
enlargement from bail on a condition is not
lawful ; because an enlargement of this kind,
as well as that of other description, involves
an endowment with right of property, and
the suspension of an endowment with right
of property is not lawful.*— I'here is a trad^-
tion that such suspension is lawful ; because,
in fact, a surety is responsible for a claim,
and nut for a debt, whence such enlarge-
ment is like divorce, a mere annulment, f
and therefore cannot be u do ,e by the rejec-
tion of the surety :t — and the enlargement
*An endowment with a right of property
(such as a gift, for instance; must operate
immediately, otherwise it is not valid.
fThis doctrine is founded on the meta-
physical distinction which the Mussulmans
draw betwixt a debt and a claim Thus
where a person remits to another a debt con-
tracted by borrowing, purchase, or the like,
he, as it were, conveys or mikes over so
much propeny to that other : — but where he
remits an obligat >ry claim upon another to
answer the debt of a third person, he then
merely annuls a right of his own ; tor as that
other had not in reality received any pro-
perly from him. he cennot by such rein a is -
sion be said to have made over so much
property to him.
J A gift, or any deed vesting property in
another, cannot operate without the consent
of that other. On this principle a gift is not
held to take place until the seisin of the
donee, as, until then, it is in his power to
render it void by a rejection. But it is not
in the power of the surety to prevent the
operation of the exemption in his favour by
the rejection of it, as it as held to it be an
annulment of a right on the part of the
claimant, and not a deed conveying prop rty
to him.
324
BAIL
[VoL. II
from bail being a mere annulment, it fallows
that the suspension of it upon a condition is
lawful, in the same manner us the suspension
of divorce of emancipation ; in opposition to
the enlargement of the principal ; as that is
an endowment with right of property, ami
may therefore be rej cted by him.
Bail, in cds<-$ «/ punishment or reia/'ation,
is valid only for the person — BAIL is not
valid with respect to any right of which the
fulfilment is impracticable by means of bail,
as in cases of punishment or retaliation, —
because proxies are not admitted in case of
corporal punishment. But bail for the per-
sons of criminals under the sentence of such
punishments s lawful.
Bail may be given fur the price, but not for
the goods, in a sale. ~A PERSON may lawfully
become bail, on the part of a purchaser, on
the payment of the price, because price is a
debt : but it is not lawful to become bail, on
the part of the seller, for th~» merchandise ;
for that is substance, of which the compensa-
tion, in a case of destruction is insured, by
means of something of a different kind
namely, the price ; and although bail for in
sured substance be lawful in the opinion of
all our doctors, still it is required that the sub-
stance be insured for a similar in kind: such as
the subject of an invalid sale, an article seized
in virtue of an intention to purchase, or an
article usurped ; but not for any substance
which is insured for something of a iiifferent
kind such as the subject of a valid sal:, or a
pawn ; nor for any substance h^ld in the
nature of trust, such as a depo it, a subject
of rent, a loan, Mozaribat sto k, or partner-
ship stock.— If, after the purchaser, in a rase
of sale, had paid the mce, a perbo.i become
bail for thJ deli/ery of the good< to him. — or
if, in a case of pawnige, a person become bail
for the pawnee restitution of the pledge,
—or, in a case of hire, for the renter's restor-
ing the article hired, — in *ll these cases the
bail is valid, because of the surety having
engaged for the performance of what was due
and incumbent.
Bdtl /or the performance of w.nk by a
spec fie animal is not valid. — IF a pt r*on hire
a quadruped for the carriage of a burthen,
and another be bail for the animal carrying
the said burthen, it is not valid because ot
the animal being the property of another. —
This, however, proceeds on a supposition of
the hire having related to a specihc animal ;
tor, if the animal be not specific, the bail is
valid, as in that case it is in the power of the
surety to supply an animal of his own for the
carriage of the burthe . In the same manner,
in case of a pesipn hiring a slave fur service,
bail given for his performance of the service
is invalid, as the slave is not the property
of -the surety, and he has consequenily no
power of enforcing what he has under-
A contract of bail must be formed with the
consent of the claimant. — A CONTRACT of bail is
not valid unless it be formed with the consent
of the claimant. — This is according to Haneefa
and Mohammed. —Aboo Yoosaf alleges that
a contract of bail is valid, if, having been
formed without the knowledge of the claim-
ant, it receive his assent on its being notified
to him : and (according to several copies of
the Mabsoot) his assent is not a condition. —
This disagreement relates equally to bail for
the person, and bail for property. — The
reasoning of Aboo Yoosaf, in support of the
opinion, is, that as bail signifies an obliga-
tory engagement, it is therefore binding on
the person who undertakes it ; and hence it
would appear that it does riot depend on the
assent of the claimant : but the reason fcr
suspending it upon his concurrence is the
same as occurs under the head of marriage,
treating of Fazoo'ec marriage: "The d cla
ration of the surety that he has become bail
for a particular thing, on the part of a parti-
cular psrson, renders the oontract complete ;
but as it is a deed affecting the claimant
(inasmuch as it invests him with a right to a
claim), it is therefore suspended upon his
assent," — The reasoning of the other two
doctors is that bail creates a right ; in other
words, the suretv constitute the claimant
proprietor of cliim upjn him which he
accordingly demands from him after the
completion of the contract, — H^nce it follows]
that two points are necessary to the comple-
tion of the contract, namely the speech of
the surety (which is equivalent to a declar-
tion with respect to the claimant), and the
speech of the claimant ( vhich is equivalent
to acceptance) — No in the case in question
there exists only one of these two requisites
the contract, therefore is not suspended be-
yond the meeting ; and con equently a con-
tract of bail is not valid but through the con-
sent of the claimant at the meeting
Except where the de-tor is dying — EXCEPT-
ING only in one instance — namely, where a
sick* person says to his heir, "he you bail
for whatever debts I may owe," nnd the heir
becomes bail accordingly in the absence of
the ci editors ; for in this ca e tie bail is
effectual, notwithstanding the absence of the
creditors, upon a favourable construction. —
for two reasons : FIRST, the ba 1 so c > tracted
is, in effect, a will, and is t erefore valid
without the intervention of the claimant
(and hence lawyers have remarked that this
species of bail is not lawful unless when the
sick person is in possess:on of property ; be-
cause a will would not otherwise be lawful ;
SECONDLY, the sick person is the representa-
tive of his creditors, because he stands in
need of b'ing so, it. ^rder that he may divest
himself of his obligation ; and also, because
this is attended with an advantage to the
creditors — The case is therefore the same as
if creditors had themselves been present.
OBJECTION,— If the sick person represent
his creditors, it follows that his acquiescence
is a necessary condition, in the same manner
* Arab Mareez. -Always meaning a
son sick of a mortal illness.
per-
Jgoy XVIII —CHAP. I.]
as that of the creditors, had they been pre-
sent ; and that the expression of "Be you
bail on my part for whatever I owe," is not
conclusive of the contract ; whereas this ren-
ders it conclusive.
REPLY.— The bail founded on this speech
of the sick person is valid, and his acquies-
cence is not required as a condition ; because
the meaning to be deduced from the speech
is, evidently, a desire on the part of the sick
man that the bail be concluded, and not
merely a consultation respecting it : and his
speech therefore resembles an order for the
conclusion of a marriage, as already e .plaim-d
under the head of marriage. — (it is to he ob-
served that if the speech "of the sick person
be addressed to a stranger, there is in that
case a disagreement with respect to trie
validity of the bail.
Case of bail gratuitously entered into on
behalf of an insolvent defunct.-- IF a deb. or
die without leaving any property, and a no her
become bail to his creditors, such bail is not
vilid, according to Haneefa.— The two d s-
ciples allege that it is v.ilid ; because it is j
undertaken on account of a Debt, established
as the right of the creditors, and which is
still extant, since r.o person has c1! -.charged
it, whence it still exists, so far a* relates to
BAIL
3*5
to the debtor") ; because the surety does not
become proprietor in virtue of such a seisin ;
on the contrary, he is in such case merely a
trustee.-— Tt is to be observed that where the
surety thus receives the thousand dirms, and
becomes proprietor in virtue of such receipt,
he is not required to devote in charity what-
ever profit he may acquire from it ;* because
m his instance the property vests in him
immediately on the «ceipt. Where he re-
ceives it after having himself paid the debt,
the reason of the property then vesting in him
is evident ; and where he receives it before
he has paid the debt, he becomes proprietor
immediately on the receipt. — The reason of
tl i*. is, that the surety has a claim on the
debtor for an article similar to that for which
tl»e creditor has a claim upon him : but the
claim of the surety upon ihe debtor is sus-
p nded until he pay the debt to the creditor.
— The claim of the surety, therefore, is in
the nature of a debt to become due hereafter
(whence it is that if the surety should pre-
vious to his having dischirged the debt to
the creel itor, exempt the debtor from the
clai he harl upon him such exemption would
be ^ ah '). — N >w as an art«cle similar to that
for which the suretv is respjrmble to the
creditor is due to him by the debtor, it
the laws of futurity; 'that Is to say7 the ' foj|ows fkat on his receiving payment from
debtor, if it be not discharged, becomes a ! ™e debtor he become* proprietor in virtue of
criminal before God Almighty.— As, also, if \ such receipt —The degree of ba eness, more-
the surety were actually to 'd scharged th«: ! °yer, which obtains m such a transaction (as
debt, such discharge * ould bo valid being a ' s?,a11 he hereafter set forth), does not take
gratuitous act o justice, in the same manner \ *"*&, where a Jight of property exists, with
bail for it is consequently vali«i.— The «trgu
ment of Hancefa in support of his opinion is,
that the bail is in this case given for a debt
respect to indefinite thing ; as has been
already explair ed in treating of invalid sales.
Case of a delivery of substance by the prin-
which is annulled with relation to the laws of j cipal, to guard his surety against loss — IF
this world ; and the validity of bail being
founded on the laws of this world, it cannot be
legally given for what no lonaer legally exists.
A debtor paying his .surftjy the mm for
which bail has been given, before the surety
has satisfied the credit n c mnot reclaim it. —
IF a person, by desire of another, should
become his bail for one thousand dirms which
he owes, and the debtor give the surety one
thousand dirms by way of payment prior to
his [the surety's] having paid the creditcr,
he [the debtor] is not i n that case permitted
to take from the surety the money he has
advanced to him, for two reasons. FIRST
the right of the possessor (namely, the surety)
is connected with the one thousand dirms on
the probability of his having occasion to pay
them to the creditor, and therefore whilst
such probability exists the principal surety
has no right lo take them from him ; similar
to a case where a person hastily (that is,
before the stated time) pays Zakat to the
collector, in which case he would not be
entitled to take it back from him. SECONDLY
the surety becomes proprietor of the said sum
in virtue of the seisin; on a principle which
shall be presently explained. -It is other-
wise where the debtor gives the sum to the
surety be way of commission (as if he were
to say to him "Take this sum and deliver it
bail be given fcr A Koor of wheat, and the
principal deliver a Koor of wheat to the
surety, and he sel and acquire profit by the
same, in that case the profit so acquired is, in
the eye of the LAW the right of the surety,
n the principle already explained, of the
property having vested in him in virtue of
the receipt. —The author of the work ob-
serves, that in his opinion it is most laudable
that the surjty give the said profit to the
debtor, although, in the eye of the law
this be not incumbent up in him : and such
(according to one passage in the Jama
Sagheer) is the opinion of Haneefa upon this
point — The two disciples maintain that as
such profit is the right of the suretv. he
ought not therefore to give it to the debtoi : —
and this aho is related as an opinion of
Haneefa, as well as another, namely, that
the surety ought to bestow it in charity. —
The argument of the two disciples is that the
profit, as having resulted from the property
of the surety, becomes of consequence his
right — Haneefa, on the other hand, argues
that, notwithstanding the existence of the
•That is to say, whatever profit may arise
from it between the period of his receiving
it, and that of gratitfymg the claimant.
326
BAIL
property, there is still a degree of baseness in
it, because it was in the power of the debtor
to retake the Koor of wheat from the surety,
and deliver it himself to the creditor ; or,
because, in delivering it to the surety, it is
probable that he did it wit-i a view that he
should deliver it to the creditor — No the
baseness here operates in consequence of the
thing to which it relites being definite ; and
the mode of purging such bisj[)e>s i^i (ac-
cording to one tradition) by dev >ting the
profit in charity, or (according lo another)
by giving it to the debtor, as tha baseness is
occasioned by his right, and not by the rmht
of the LAW — This latter is the most authentic
doctrine ; but it prescribes only a laudable,
and not an incumbent duty ; for the right of
the surety is clear.
Case of bail discharged by an aynit sale. —
IF a person become bail, by desire of the
principal, for a debt of one thousand dirms.
and the principal afterwards desire him fi»st
to purchase on his account silks to the value
of one thousand five hundred dirms, in the
manner of an aynit, and then to resell the
same, and discharge the debt by means of \
the price, and the surety act accordingly, the
purchase so made is considered as on h s own
account, not on account of the principal, and
he must, of consequence, sustain the loss
arising from the aynit sale. — An aynit sale
is where a merchant, for instance, having
been solicited by a person for a loan of
money, refuse the same, but offers to sell
goods to the other on credit at an advanced
price ; as if he should charge fifteen dirms
tor wh;it is worth only ten, and the other
pers <n agree to the same. This is termed an
aynit or substantial sale, because it is a re
cession from a loan to a specific substance
(in oth:r words, the merchant dtcl nes grant-
ing the loan required of him by ihe borrower,
but agrees in lieu thereof, to sell h. in the
cloth, which is a specific substance) ; — and it
is a 3ominable, as being a recession from a
loan of money, which is a laudaule action,
on a principle of avarice, which as a sordid
quality. — With respect to the nature of the
case in question, our doctors have disagreed.
— Some have asserted, that the direction,
given by the principal to the surety infers
his [the principal's] being responsible for any
loss that may be sustained by the purch ser
in consequence of the aynit safe ; and that
his direction in this particular is not a com-
mission of agency ; for this reason, that the
order of the principal (' purchase silks on
my account") implies this assu nption of
responsibility .—but a responsibility of this
ni'-Ufd is invalid, since responsibility cannot
hold except in an article in which the
p'.rsj.i who is responsible has some interest ;
and n> person has any interest in the loss on
the present occasion. Others again way, that
the direction in question a.nou its to a com-
mission of agency : but that it is an invalid
commiasion, as the silk to which it relates
are not definite, neither is the price of the.n
definite from an ignorance of how much it
[VOL. II
may exceed the amount of the debt, — The
purchase of the silks is, in fact, considered
as having been made on account of the surety,
and the loss resulting from it falls entirely
upon him (not upon the principal), since it
was contracted by him.
Evidence cannot be heard in support of any
claim against a surety which does not come
within the description in the contract of bail.
— IF a person become bail on the part of
another, for whatever may be proved to be
due by him, or for whatever the Kazee may
decree against him, and the debtor afterwards
disappear, and a claimant offer to prove, by
, evidence, that the sum due to him is one
I thousand dirms, such evidence is not to be
admitted : because here the bail is limited
to whatever the Ka/ee may decree, as it is
evident from the expression "Whatever the
Kazee may decree, and likewise from that
of " Whatever may be proved to he due by
him," since nothing can be proved but by the
decree of the Kazee, and the claim in ques-
tion has not this limitation ; —it is therefore
invalid, and accordingly the evidence in sup-
port of it cannot be heard.
A decree pasted against a surety in the ab-
sence of the principal cannot affect the latter
unless the bail were entered into by his desire*
— IF a person prefer a claim before the Kazee
to this effect, "That an absentee owes him a
thousand dirms, and that a particular person
present is by desire of the debtor, bail for
the same " and establish his assertion by
testimony, in that case the Kazee must pass
a decree against both the debtor and the
surety —If, however, the bail have been
given without the desire of the debtor, the
Kazee must in that case decree the cleul solely
against the surety ; and in this instance the
evidence a addujed by the claimant is admitted
as sufficient, because tne bail is absolute, and
not qualified, as in the preceding case. — It is
to be observed that the different decrees
which the Kazee gives in the case of bail
with, and without, the desire of the debtor
(that is, the decree against both, in the one
case, and against the surety only in the
other), is founded on the difference which
ootains in the nature of these two modes of
bail :-— for bail by desire of the debtor is a
gratuitous deed in the origin, and a contract
of exchange in the end ; but bail without
the desire of the debtor is a gratui ous deed
both in its origin and its consequences —Now
where the claim relates to one only, the
decree cannot be extended to the other. But
if a decree should be passed relative to a
surety by desire, it must necessarily include
the principal since the desire he expressed
is a virtual acknowledgment of the existence
of the debt. — It is otherwise with respect to
a voluntary surety ; for as the ex.stence of
the debt in that case is proved by his belief
of it, in having undertaken the bail with
regard to it, and not by any virtual acknow-
ledgment of the debtor, the decree is there-
fore solely referred to him.— In the former
case (namely, that of bail by desire), the
:§OKXYTII.-CHAP, P
BAIL
327
surety ;s authorized to receive from the seller
what he may have been obliged to pay on his
secount — Ziffer maintains that he is not
entitled to such compensation ; because,
having himself refused to pay, and having
been compelled to it, he is of consequence in
his own opinion oppressed ; and it is not
permitted to such as are opposed to oppress
others — Our doctors, on the other hand,
argue that whenever a refusal is undone by
law, lh.* opinion founded upon it becomes of
cons • juence null
Cas? of Ktif?el-be I dirk — IF a person
S'll a h.msc, and another become1 Kaf >el-ba'l
dirk or security against accident,* on his
behalf, the security so given is a direct
declaration of trn hems-* being the property
of the seller. — It, theieforp, the surety should
afterwards prefer a claim of right to the
house, such claim is inadmissible — l"he
reason of this is. that if the security be d
condition of the sale (as if trv* purchaser
sho ild have said, "I will buy the* said house,
provided a particular person will be security
against any future claim to it"), in thac case
the completion of the sale rcs's upon the
agreement of the surety ; and afterwards,
when he prefers a claim of rio'it to the house,
he endeavours to destroy that which he h.ui
himself rendered complete ; —if, on the other
hand, the s.'curitv should nor be a condition
of the sale, the surety, in that case, by
aggree n? to the bail, did, as it w-^re, incite
the buyer to the bargain (vnce his desire of
purchase was founded on the procurements of
bail). — The bail io ynven. therefore, is equiva-
lent to a declaration of the rmht of property
of the seller.
An attestation to a contract of sale is not
equivalent to Kafoel-be'l-dirk — IF, in the
sale of house, a person should attest the
bill of sile, and put his seal to it, without
giving any security, such testimony and af-
fixture of seal is not an acknowledgment of
the seller's riqht of property, and hence the
witness mav. if he please, afterwards claim
the house, because attestation is neither a
condition of sale nor a declaration of the
property of tha seller, as it tonnetimes hap-
pens that nvn sell their own property, and
sometimes that of others — Besides, the wit-
ness may have made this attestation merely
as a memorandum of the transaction ; a sup-
position which the case of bail could not
admit of, — Lawyers have remarked that if it
be expressed, in the bill of sale, that "a
certain person had sold such a house, which
is his property, bv a complete and valid sale,"
and the person attest the writing to this
*Dirk signifies, properly, any possible
contingency. Kafeel-be'1-dirk, therefore,
means bail for what may happen — In the
present instance it alludes to the possibility
of a claim being afterwards set up to the
house by some other person, which, if sub-
stantiated, would annul the sale,
effect, •' Witness thereto," thit isinacknowe
ledgment and declaration of the seller's
right of property —If, on the other hand, he
attest it thus, "Witness to the agreement of
the buyer and seller," this is not a declaration
of the seller's right of property.
Section
OfZamlns or Guarantees.
The guarantee of agents to their emp'oyere
is null —!F an agent sell the cloths of hii
constituent, and hold himst If responsible for
the payment of the price to his constituent, —
or, it a Mos.arih sill the goods of hib em-
ployer and hold himself responsible for the
payment of the price -the responsibility in
either case is null : FIRST, because svirety or
bail is an engagement compelling the undtr-
tak.T to answer a claim ; and as, in thc*se
c.isi*s, the agent ami Mo/.ari -> are themselves
the ..-lannant for the price of the gojds, it
follows that if they were responsible for the
same, they would be security on their own
behalf, which is absurd : and, SECONDLY,
because the goods remain in their hands in
the nature «>f a tru>t ; and trustees are not
hrfUl by the LAW to be liable to responsi-
bility.--If, therefore, they were held respon
sible, it would be contrary to the precepts of
the LAW. --Hence the taking of security from
them is null, m the same manner as a con-
dition of resnontibility is null with respect
to a trustee or a borrower
The gumantre of pailners, in a purchase
ana sale to each other, is null — IF two
shares in a slave sell him by one contract,
and each of them be security to the other,
on behalf of the buyer, for his paym nt of
the proportion of the price due to that other,
such security is null : because if the security
were valtd under a general copartnership in
the price, it nece^ari y follows that each is
in part security on behalf of himself, since
every member of the s:ave is indefinitely
shared between them ; — or if, on the other
hand, the security of each were valid with
respect to the other's share in particular,
this induces a division of a debt before the
receipt of it, which is unlawful. — It i* others
wise whcrs two partners in a slave sell their
shares by different contracts ; as their secu-
rity to eaeh other, for the prices respec-
tively due, is valid, since there is no part,
ncrship in this instance, because whatever
is owing to each, respective'v, in virtue of
his particular contract, appertains solely to
him, without any participition of the other; —
whence it is that the parchasir is at liberty
to accept the share of them only and
to take possession of it, after the payment of
the price ; and also that he may take posses-
sion of the share of one of them only after
paying to him his proportion, nr 'withstand-
ing he may have purchased both shares.
Guarantee for land tax , and all other re-
gular or justifiable imposts, is valid.— IF a
person become security in behalf of another
BAIL
[VOL. II
for tribute due by him or for a na vayeeb*
levied upon him for his kissmat, all such
securities are valid.— Security for tribute is
valid, because tribute is in the mture of a
debt (and may be a lawful subject of claim
as has been already explained (in opposition
to Zakat, as that is a matter solely affecting
him who pays it, in the manner of a gifr,
and of which his property alone can be i he
subject ; whence, after his death, it cirn»r
be discharged our of his eff.-cts, unless pre-
scribed in his will) :— and with respen to
nawayeeb, if it extend only to what is just
(such as exactions for digg ng a canal, for
the wages of safe guards, for the equipment
of an army to fiqht against the Indfidels, for
the releasr of Mut-'ulmin captives, or for the
digging of a ditch, the mending of a foil, or
the construction of bridge) the security is
lawful in th*» opinion of the whole of our
doctors. — But if nawayeeb extend to exac-
tions wrongfully imposed, that is, to such
as tyrants extort from their subjects (a^ in
the peesent age), in that case, concerning the
validity of security for it, there's a differ-
ence of opinion amongst our modern doctors.
— Sheikh I man Alee is of the number of
thos; who hold the security in this instance
to be valid, — With respect to kissmit, the e
is a difference of opinion concerning tnc
meaning of the word. — Some allege t at it
signifies the same with nawayeeb. whilst
others define it to be same with M >wzifa
Ratiba that is fixed imposts whim ar
exacted at stated periods such as once in
the month, or onee in every two or thn c
months. — -Now nawayeeb means the casual
exactions made by tta sovereign, which
have no fixed or stated periol. Th> law,
however, is as above explained, with respect
to both, If, therefore, th » exaction be right,
then the security for it is lawful, according
to all our doctors; or if wrong, there is a
disagreement with respect to the validity
the security.
Difference between a suspended debt and
suspended bail. — IF a person sav to another,
"I owe you a debt of one hundred dirm ,
payable a month hence," and the other
assert that the debt is immediately due, his
assertion, as claimant, is to be credited —
But if a person should declare to another,
"I am security to you, in behaif of another,
for a debt of one hundred dirms, payable a
month hence," and the other assert that the j
debt is due immediately, the declaration of
the surety is to be credited. — The difference
between these two cases is, that in the former
case the debtor makes an acknowledgment of
the debt, and then claims his right to a
suspension of payment for one month :
whereas in the latter case the surety makes
no acknowledgment i f the debt, inasmuch
as the obligation of the debt does not rest
•Nawayeeb are all extraordinary aids
beyond the established contributions, levied
at the discretion of government to answer
any particular emergency of the state.
upon the bail or surety, as has been often
before explained — In fact, he has simply
acknowledged a claim to which he is re-
sponsible df'er the lapse of a month, which
the claimant denies, asserting that he is
answerable for such claim immediately : —
and regard is paid, in LAW, to the affirma-
tion of the defendant.— A clause of suspen
sion, moreover, is merely an accidental pro-
perty of a debr, and not an essential, whence
it is that it cannot be prove J unless it has
been express'y stipulated. — The afnmation.
therefore, of the person who denies the
stip ilation of such condition is credi'able, —
in the same manner as in the case pf a con-
dition of option, in sale, —Bail under a sus-
pensi >n, on the contrary, is Oiie species of
bail, in which the being susp nded in its
operation is an inherent quality, and not an
accident; whence this species of suspension
may be proved without having been stipu-
lated ; as where for instance, ths debt due
by the principal is a suspended de >t. Ac Cord-
ing to Shafei, the affirm ition of the claimant
is to be credited in either case ; and the same
is related as an opinion of Aboo Yoosaf
Bail against accident, in the sale of a slave
— IF a person purchase a female slave, and
another warrant her to be the property of
the seller,* and she afterwards prove to be
the property of some other person, the pur-
chaser is n'"t entitled to exact the price from
the surety, until the Kasee shall have first
passed a decree against the seller for the
restitution of the price because, according
to the Zahir Rawiyat, the sale do^s not be-
come null immediately on the proof of the
subject of it being the property of another
but endures until the Ka/.ee pass a decree in
favour of the purchaser, directing the seller
to return the price. Since, therefore, pre-
vious to issuing the said decree, it is not
incumbent on the principal [that is the
''eller) to make restitution of the purcha^e-
money, so neither is it incumbent on the
surety It would be otherwise if the slave
were proved to be free, and the Ka/ee pass a
decree to that effect, for in such case the sale
beco nes null immediately on the issuing of
such decree, since freedom is incapable of be-
ing the subject of sale, and the buyer would,
therefore, be entitled to exact the purchase-
money either from the surety or from the
seller, without waiting for a decree of resti-
tution from the Kazee. — It is related as an
opinion of Aboo Yoosaf, that sale becomes
null immediately on the proof of the subject
of it being the property of another ; and
that, consequently, the buyer has in such
case a right to exact the price either from
the surety or the seller, without waiting for
the decree of the Kazee to that effect.
Security for fulfilment is null. — IF a person
purchase a slave, and another be security for
the fulfilment of the _bargain,j_ sucli_ security
*Literally, "and another be bail against
accident."
t Arab. Zamin ba Ohda,
BOOK XVIIL— CHAP. II.]
BAIL
329
is null ; because the word Ohda [fulfilment]
is of a comprehensive nature, as having a
variety of meanings I It relates to the
former bail of sale which the seller received
from the person who sold the slave to him ;
and this being the property of the seller, any
security with respect to it is invalid. II. It
relates to the contract and its ri«hts. III.
It relates to a warrant or security against
accidents And, IV. To option.— As, there-
fore, the term comprises so >; any things the
particular application of it is dubious ; and
hence practice cannot take place upon it.-—
It is different with respect to the term dirk,
for although that signify whatever may
happen, yet the custom of mankind has re-
strained the appli-ation of it to one particular
sense, namely, * securi'v against any future
claim ; and Ziman-be'1-dirk, or security
against accident, is thereforc valid.
Security for a surrender of the article to
the purchaser is invalid — IF a person sell an
article, and another be security to the pur-
chaser for the release* of that article, such
security is invalid, according to Haneefa, as
the intention of it is the release of the ar-
ticle, and the delivery of it to the purchaser,
which the security is not competent to per-
form.— The two disciples hold this of be
valid, ss in their opinion it is equivalent to a
security agasnst accident ;— in other words,
it imports an obligation to deliver to the
purchaser either the article sold, the value,
or the price ; — and such being the case, it is
valid of course.
CHAPTER II.
OF BAIL IN WHICH TWO ARE CONCERNED
Case of two persons who are joint prin-
cipals in a debt, and bait fot each other.— IP
two men owe a debt in an equal degree,
and each be security on behalf of the other,
—as where, for instance, two persons pur-
chase a slave, jointly, and each is security on
behalf of the other.— in this case, if either of
them pay off a part, he has no right to make
any claim on the other :— unless, however,
the payment so made exceed a half of the
whole debt, in which case he has a right to
exact such excess from the other.— The
reason of this is, that each of them is a
principal with respect to one half of the
debt, and a security with respect to the other
half;— for what each owe in virtue of his
being a principal is no bar to the obligation
upon him as a security, the one being
founded on debt, and the other on a claim,
which is subordinate thereto,— Whatever
payments, therefore either of them may make
are held to be in virtue of the former,
namely, the debt, as far as that extends :
• Arab. Khilas : meaning, the surrender
of the article, by the seller, to the purchaser.
and any excess is referred to the latter,
namely, the security.
Case of two persons who are bail for a
third, to the amount of the whole claim, and
also, reciprocally, bail for each other's secu-
rity.—It two persons be bail for property
in behalf of another,— in this way, that
each surety, respect ivey, holds himself re-
sponsible for the other surety,— in this case,
whatever either surety may pay [in virtue
of the bail] whether the sum be great or
small, he is entitled to exact the half of it
from the other surety -This proceeds upon a
supposition that each of these two sureties,
respectively, is bail for the whole property
on the part of the principal, and likewise for
the whole obligation on the part of his co-
surety. Honceineach of the two sureties
two bails are united : one on hehalf ot the
principal, and one on behalf of the co surety;
and bail on behalf of a surety is lawful, in
the same maner as on behalf of a principal,
or as a transfer on behalf of a transferee:
because the intention of a contract of bail is
undertaking the obligation of a CLAIM ; and
this end is answered by bail on behalf ot a
suretv. -As, therefore, two bails are in this
case united in each of the sureties, it follows
that whatever payments are made by either
of them are made, in an indefinite manner,
on account of both; for the payment so
made was purely in virtue of the bail ; and
each, with respect to the bail, stands in the
same predicament ; that is to say, neither
has a superiority over the other.— (It is
otherwise where each surety is a principal
with respset to part of the debt, as in the
first example : for in this case neither has a
right to exact any thing from the other on
account of the paynrunts he may make,
unless such payments exceed the sum for
which he is a principal, because the principal
has a superior ity.)-Now since, in the case in
question, whatever payments either ot the two
ma> make are made ind- finitely, on account
of both, it follows that the person making
such payments is entitled to exact the halt
of them from the other. And this induces
no unnecessary revolution, because the in-
tention of the contract, in the present
instance, is that the parties be on a footing
of perfect equality with respect to the bail,
which can only be answered by the oue party
takinq from the other the half of what ahe
may have paid The other, therefore, is not
entitled to retake it again from the person
who has first paid, because this, if permitted,
would destroy the equality already estab-
lished-(It is otherwise in the preceding
case, for there each of the parties is a prin-
cipal with respect to a portion of the debt,
and consequently they are not on a footing
of perfect equality with respect to the bail )
-When, however, one of the parties shall
have taken the half from the other, then they
are jointly entitled O exact the whole of
what has been paid from the principal ; a 7 nee
they paid the same on his behalf; the on-
making the payment immediately from hi -i-
330
BAIL
[VOL II.
self, and the other doing it, as it were, by
his substitute :•— or the sureiy who paid is at
libexty, if he phase, to exact the whole of
\\hathepaidfromthe principal, because he
was bail for the whole of the property by
his desire.— If, in this mstan e, the creditor
exempt one of the two sureties, he has a right
to claim the whole from the other, because
the exemption of a surety does not operate
as an exemption in favour of the principal,
and therefore the whole of the d bt remains
due by the latter ; and the remaining surety
being still bail for the whole of the property,
it is consequently lawful to claim the whole
from him.
In the dissolution of a reciprocity partner-
ship, each partner is responsible for any debts
contracted under their partnership. — IP two
partners by reciprocity dissolve their copart-
nership and separate, whilst some of heir
bebts still remain due, the creditors have in
that case a right to claim the whole from
whichever of them they please ; because
each of these partners is surety for the other,
as has been already explained in treating oi
partnership. — Neither of the partner ;, rm rc»
over, has a right to make any claim upon
the other for whatever payment he may have
made to the creditors, unless such payment
exceed the half of the debt, in which case
he has a right to exact from him the pay-
ment of such excess, for the reason already
explained, in discussing the case of reci-
procal bail by two.
Case of two Mokatibs, bail on each other's
behalf , for their ransom — IF a master con-
stitute two of his slaves Mokatibs, by one
contract, for a thousand dirms (for instance),
and each of them become bail for the other,
in that case, whatever sum, from the whole
amount covenanted to be paid by the master,
is discharged by either, the half ot tha* sum
may be exacted from the other. — Analogy
uould suggest that the bail, in this instance,
is rot valid ; because bail is valid only when
opposed to a valid debt : and the considera-
tion of Kitabat, or the degree of freedom
bestowed upon a Mokatib, is not a valid
debt, as has been already explained.— It is
lawful, however, upon a favourable construc-
tion, by considering each of the slaves as a
principal with respect to the obligation of
the whole consideration of Kitabat, namely,
a thousand dirms : — in other words, by con-
sidering each of them, respectively, as bein^
responsible to the master for the payment
of the whole : and, consequently, that upon
his making payment of the whole, the other
obtains his freedom as a dependant, — in this
way, that the freedom, of both is suspended
on their payment of one thousand dirms,
and the master is at liberty to claim the said
thousand from each of them respectively,
as a principal, not as a surety Each, how-
ever, is considered as surety on behalf of
the other, with respect to exacting a moiety
of what he pays on account of the conside-
ration of Kitabant (a particular explanation
of this will hereafter be given in treating of
Mokatibs),—- From the explanation of the
law in this case it appears that both slaves
are equal with respect to the payment of the
thousand dirms, which is the consideration
of their Kitahat ; and hence each is respec-
tively entitled to take from the other a
moiety of whatever part of fhe said thou-
sand dirms he may pay. — If the master, in
this case, should emancipate one off the
slaves prior to his having made any pay-
ment on account of his Kitalat, in that case
he becomes free; because his master, whose
property he then was, chose to emancipate
him. — He becomes likewise exempted from
any obligation to pay his half of the con-
sideration of Kitabat, because he acquiesced
in that obligation merely as a means to
obtain his freedom ; but upon his becoming
free in consequence of the emancipation of
his master it exists no longer as a mean and
therefore ceases altogether. — The obligation,
however, for the payment of an half still
continues incumbent upon thp other, who
remains a slave ; because the whole amount
of the consideration was opposed to the
bondage of both ; and the whole was con-
sidered as due from each, respectively,
merely as a device, in order to render the
bail of each in behalf of the other valid,
and thereby to enable each to take from the
other a moiety of what he pays. — But when
the master emancipates one of them, there
exists no further ner.pssity for this devise ;
whence the debt is then considered as opposed
to them both, jointly (not, in toto, to each
respectively), and is a -cordinuly divided into
two separrate parts, of which one still con-
tinues due from him who remains a slave,
— Tn taking this portion, the master is at
liberty either to exact it from the freedrnan,
in virtue of his being security, or from the
slave, because of his being the principal —
If he take it from the freedman, the freed-
man is then entitled to retake it from the
-slave, because of his having paid it by his
desire ; but if he take it from the slave, he
[the slave] is not entitled to take anything
from the freedman, because he merely pays
a debt which he justly owes.
CHAPTER III
OF RAIL BY FKEEMEN IN BEHALF OF SLAVES,
AND BY SLAVES IN BEHALF OF FRREMEN.
A person becoming surety on behalf of a
slave for a claim, to which the slave is not
liable until after emancipation, must dis-
charge it immediately.— IF a person be surety
in behalf of a slave, for some thing not
claimable from the slave until after he
recover his freedom, without specifying
whether the thing in question is claimable
immediatelv, or hereafter, in that case it is
to be considered as immediately due ; — that
is to say, it is claimable immediately from
BOOK XV. II.— CHAP. III.]
BAIL
331
the surety. — For instance, if an inhibited
slave acknowledge his destruction of the
property of any person, — or that he owes
a bebt which his master disavows, — or it,
having married without the consent of his
master, he should have had carnal connexion
with the women on the supposition of such
marriage being valid (in all which cases
nothing could be exacted from the slave
immediately, nor until he become free), and
a person be a surety for the compensation
eventually claimable from the slave, he is
liable to an immediate claim for it. The
reason of this is, that the slave ought im-
mediately to discharge the compensation,
because there exists an evident caus^ of its
obligation upon him, and a s^ve, in virtue
of his being a MAN, is capable of being sub-
ject to obligation. He is, however, exempted
from an immediate claim for the compe ->sa
tion, because of his property, since everything
he possess is the property of his mastes,
and his master is not assenting to the obliga-
tion. *The surety, on the contrary, is not
poor, and is therefore liable to the claim
immediately, in the same manner as a per-
son who becomes surety for an absentee or a
pauper. — It is otherwise where a person
becomes bail for a debt not imme iately
due, for there the surety also is not liable to
an immediate claim, any more than the
debtor, since the debt is suspended in its
obligation to a future period by the consent
of the creditor — -It is, however, to be
observed, that in the case in question, the
surety, on discharging the claim upon the
slave, is not entitled to demand it from the
slave until he shall have obtained his free-
dom ; because the creditor had no right to
demand it until that event : and the surety
stands in the place of the creditor.
Bail for the person of a slave is cancelled
by his death. — IF a person advance a claim
on an unprivileged slave, and another be-
come surety for his person, and the slave
afterwards die the surety is in that case
released from his engagement, because of
the principal being released. — (The law is
the same where the slave, in whose behalf
bail for the person is given, is emancipated.)
Bail to a claim of right in a slave subjects
the surety to responsiblity in the event of the
slave's decease. — IF a person claim the right
of property in a slave, and another become
surety in behalf of the possessor of him, and
the slave then die, and the claimant estab-
lish his right by witnesses, the surety is in
that case responsible for the price — because
it was incumbent on the possessor to repel
the claim, or, if he failed in so doing, to
give the value for which the surety became
answerable ; and as the obligation, after the
slave's death, rests upon the principal, so
also it now rests upon the surety, — it is
otherwise in the preceding case ; for there
the obligation was merely to produce the
person of the slave, which is cancelled by
his death.
Bail by a slav? in behalf of his master t or
by a master in behalf of his slave, does not
afford any ground of claim by the surety
upon the principal— IT a slave, who is not
in debt, be surety for property in behalf of
his master, or any other man, and he after-
wards made free, and then pay the amount
for which he was surety, — or, if a master
become surety for property in behalf of his
slave, whether he be indebted or not, and
after emancipating him, pay the amount for
which he stood security, in neither of these
cases is either of the partis entitled to take
any thing from the other.— Ziffer maintains
that in both these cases the parties have a
right to recur to each other : that is, each is
entitled to take from the other what he may
have paid.— (It is here proper to remark,
that the reason for restricting the slave, in
the first case, to one that is free from debt
is, that if he were otherwise, he could not
be surety for property in behalf of his mas-
ter, since this would affect the right of his
creditors. — The argument of Ziffer is that
a ground of claim (namely, bail by desire
of the principal) exists in both cases ; and
the bar to its operation (namely, slavery) is
removed and done away.— The argument of
our doctors is that the bail in these cases is
not in the beginning a ground of claim, since
neither can the master nave a debt due to
him by his slave, nor can the slave have a
claim of debt upon his master.— Hence as
no ground of claim existed in the beginning,
it does not afterwards take place, in conse-
quence of the removal of the bar to it
(namely, slavery) ; for the law here is the
same as where a person becomes susety for
another without his desire, in which case
the subsequent assent of the surety is of
no effect.
The consideration of Kitabat is not a sub-
ject of bail — BAIL for the consideration of
Kitabat, whether the surety be a slave or
a freeman, is not valid ; because the consi-
deration of Kiubat is allowed to exist as
an obligation merely from necessaity, it being
repugnant to reason, inasmuch as a master
cannot have a claim of debt upon his slave ;
and in the case in question the Mokatib, or
person who ow^s the consideration of Kita-
bat, is supposed the slave of the claimant. ~
Hence the consideration of Kitabat is not so
fully established as to admit of br\il for it —
because wherever a thing is established from
necessity, it is restricted entirely to the point
of necessity. Besides, the debt of Kitabat
ceases entirely in case of the inaoihty of
the slave to discharge it ; nor is it possible
to revive it, by claiming it from the surety,
because the meaning of bail is " the junction
of one person to another person in relation
to a claim.— As therefore ; the claim does
not operate upon the principal, it of conse-
quence ceases with regard to the surety ;
because it is rule that a principal and his
surety are both equally liable for the same
claim. . .
Nor a consideration in lieu of emanctnaf-
tury labour.— A CONSIDERATION, in lie i o
33?
TRANSFER OF DEBTS
[VoL. II
emandpatory labour, resembles the consi-
deration of Kitabat, in the opinion of Ha-
neefa, beoausd (according to him) a slave
that works out his freedom by labour is in
the same pcddicament with Mokatib.
BOOK XIX
OF HAWALIT, OR THE TRANSFER OF DEBTS,
Definition of terms.— HAWALIT, in its
literal sense, means a removal : and is
derived from Tahool, which imports the
removal of a thing from one place to an-
other — In the language of the LAW it sig-
nifies the removal or tranifer of a debt, by
way of security and corroboration, from the
faith or the original debtor, to that of the
person on whom it is transferred. The debtor
or person who transfers the debt is termed
Moheel : the transferee or person upon whom
the debt is transferred, Mohtal-ali hee, and
the creditor, or transfer receiver, Mohtal
The transfer of a debt. — THE transfer of
a debt is lawful ; because the Prophet has
said, "Whenever a person transfers his debt
upon a rich man, and the creditor assents to
the same, then let the claim be made upon
the rich man ; " and also because the person
upon whom the debt is transferred und- r-
takes a thing which he is capable of perform-
ing ; whence it is valid, in the same manner
as bail. It is to be observed, however, that
transfer is restricted to debt ; because it
means an ideal removal ; and an ideal re-
moval, in LAW, applies to debt, and not
to substance, which requires a sensible re-
moval.
Is rendered valid by the consent of the
creditor and transferee —A CONTRACT of
trar sfer is rendered valid by the consent of
the creditor and transferee. The consent of
the creditor is requisite, because the debt
(the thing transferred) is his due ; and man-
kind being of different dispositions with
respect to the payment of debts, is there-
fore necessary to obtain his consent. The
consent of the transferee is also requisite,
because bv the contract of transfer an ob-
ligation of debt is imposed upon him, and
such abligation cannot be imposed without
his consent. The consent of the principal,
on the contrary, is not requisite, because (as
Mohammed observes in the Zeadat) the
engagement of the transferee to pay the debt
is an act relative to himself, which is at-
tended with a benefit to the principal, and
is no way injurious to him, inasmuch as the
transferee has no power of reverting to him,
in case of having accepted the obligation
without his desire.
It exempts the debtor from any demand.—
WHEN a contract of transfer is completed,
the Moheel, or person who makes the transfer
is exempted from the obligation of the debt,
because of the acquisscence of the transferee
Ziffer has said that he is not exempted, be
cause of the analogy which subsists between,
this case and that of bail ; for they are both
contracts of security or corroboration ; and
as. in the case of bail, the person who is
bailed does not become exempted from the
debt so neither ought the transferrer in this
case. Our doctors, on the other hand, agree
that Hawalit liierally means removal ; and
when a debt is removed from the faith of one
person, it cannot afterwards remain upon it
Bail on the contrary, means a junction ; and
the intendment of it is, that the bailer unites
his faith to that of the suretee with respect
to the claim. Now the decrees of the law
proceed according to the literal meaning ;
and the object of transfer, namely, corrobo-
ration, is obtained when a person that is
rich and a fair dealer acquiesces in the
obligation of the debt, as it is to be supposed
that he will readily fulfil his obligation.
OBJECTION.— If the debt shift from the
faith of the debtor to that of the transferee,
it would follow that there can be no con-
pulsion on the creditor to receive payment
from the debtor, where he offers to discharge
the debt ; in the same manner as a creditor
is not compellable to receive payment of his
debt from a stranger in a gratuitous manner.
REPLY. — The creditor is compenable to
receive payment of the debt from the debtor,
if he offer to make payment, because the
claim may eventually revert upon him, in
case of the destruction of the debt, since if
the transferee were to die insolvent, without
having paid the debt, the claim would -evert
upon the transferer, for reasons that will be
shown in the next case. Hence, the pay-
ment of the transferrer cannot in every
respect be considered as gratuitous ; like that
.of a stranger.
Unless the transferee deny, or become un-
able to fulfil, his engagement.— THE creditor
is not entitled to make any claim upon the
transferrer excepting vhere, his right on the
transferee being destroyed, he cannot other-
wise obtain it : in which case the debt reverts
upon the transferrer. Shafei alleges that the
creditor has no right to make any claim for
his due upon the transferrer, although his
right be destroyed ; because, in consequence
of the transfer, the transferrer becomes ex-
empted from the debt ; and this exemption
a absolute, and not restricted to the condi-
tion of payment from the transferee. Hence
the debt cannot revert upon the transferrer,
except on account of some new cause ; and
none such is to be found in this case. The
argument of our doctors is that, although the
exemption be absolute, in the terms of the
contract, yet it is restricted, in the sense, to
the conditien of the right being rendered to
the creditor. The transfer is therefore dis-
solved in case of his right being destroyed ;
because the contract is capable of dissolu-
tion, and may be dissolved by the agreement
BOOK XIX.]
TRANSFER DEBTS
333
of the parties. The condition, moreover, of
the safe delivery of the debt to the creditor,
is equivalent to that of warranting the sub-
ject of a sale to be free from blemish ; that
is to say, such a warranty implicitly exists,
as a condition, in every sale, although it be
not specifically mentioned ; and , in the same
manner, the security of the debt exists, as a
condition, in a contract of transfer; although
not specified in it. The destruction of the
debt due to the creditor in a case of transfer
is established, according to Haneefa, by one
of two circumstances. I. Where the trans-
feree denies the existence of the contract,
upon oath, and the credit r cannot produce
witnesses to prove it, II. Where the trans-
feree dies poor. In the even* of either of
these circumstances the debt is destroyed,
since in neither case it is practicable for the
creditor to receive payment from the trans-
feree. This is the true meaning of a de-
struction of the debt in a case of transfer.
The two disciples maintain that a destruction
of the debt is occassioned by one of three
circumstances. Of these, two are the same
with those above recited ; and the third is, —
a declaration, by the magistrate, of the
poverty of the tsansferee during his life-
time. This third circumstance is not
admitted b> Haneefa ; because, according to
his doctrine, poverty cannot be established
by the decree of the magistrate, since pro-
perty comes in the morning and goes in the
evening ; but, according to the two disciples,
the decree of the magistrate establishes
poverty.
The transferee has a claim upon the doctor
for what he transfers upon him — IF the
transferee should demand, from the trans-
ferrer, the amount of what he has paid in
virtue of the transfer made upon him, and
the transferor affirm that " he had made
such transfer upon him, in exchange for a
debt of the same amount which he owed him."
the affirmation of the transferrer is not ad-
missible, and he is bound to pay the demand
of the transferee, because the reason of such
demand (namely, the actual payment of it
by his desire) is established.— The trans-
ferrer moreover, asserts a claim which the
other denies ; and the affirmation of the de-
fendant is creditable.
OBJECTION. -It would appear that the
affirmation of the transferee is not to be
credited although he be the defendant ;
because he has acknowledged what he after-
wards denies, inasmuch as his accaptance of
the transfer is a virtual acknowledgment of
the debt he owes to the transferrer.
REPLY.— The acceptance of the transfer is
not an acknowledgment of bebt due to the
transterrer, because contracts of transfer
are sometimes maoe without the transferee's
owing any thing to the transferrer.
A debtor may transfer his debt upon a
property in the hands of another person. —
IF a person, having deposited a thousand
dirms with another, should afterwards make
a transfer on it (as if he were to desire his
creditors to receive paymen1 of his debt,
from a deposit placed by him with such a
person), such transfer is valid, because the
trustee is capable of discharging the debt
from the deposit. If, however, the deposit
be destroyed, the transferee (who is other-
wise a trustee) is in such case released from
the engagement of transfer ; because the
transfer was restricted to the deposit, since
the trustee engaged on further than the pay-
ment of the debt from the amount of the
actual deposit. It is otherwise with respect
to a transfer restricted to usurped property :
for if a person were to make a transfer on
an usurper, on account of specific propertv
usurped by him, and the said property be
afterwards destroyed, the transfer so made
does not become null: on the contrary, it is
incumbent on the usurper to pay the creditor
a similar, — or the value, in case the property
in question had not been an article of which
the unities were similar; — because, as a
similar or the vaftie is a representative of
the thing itself, the property in this case is
not held to have been destroyed.
A transfer may be restricted to what is
due from the transferee to the debtor. — IT is
to be observed that transfers are sometimes
restricted to debts <iue by the transferee to
the transferrer ; -and in all cases of such
restricted transfers, the law invariably is
that the transferrer has no right to make any
claim upon the transferee, for the substance
or the debt upon which he has made such
transfer because the right of the creditor is
connected with it, in the same manner as
that of e pawnholder is connected with the
pawn : and also, because, if such a right
remained with the transferrer. the act of
transfer (which is the right of the creditor)
would be rendered null. It is otherwise
with respect to an absolute transfer (that is,
where a person simply says to his creditor
" I have transferred the debt I owe you upon
a particular person " without making any
mention of debt being due to him, or of
specific property of his being in the possession
of that person whether from deposit or
usurpation) ; for in this case the right of the
creditor does not relate to the property of the
transferrer, but rests entirely upon the faith
of the transferee; and hence if the trans-
ferrer should receive payment of the sub-
stance or debt due to him from the transferee,
still the transfer does not become null.
rhe loan of money in the manner of Si fit ja
is disapproved. — SIFITJA is abominable ;*that
is to say, the giving of a loan of any thing
in such a manner as to exempt the lender
from the danger of the road ; as, for instance,
where a person gives something by way of
loan, instead of a deposit, to a merchant, in
order that he may forward it to his friend at
* That is to say, it is disapproved, although
not absolutely illegal. (See the mear*in .-, of
the term Abominable, p. 206 )
334
DUTCES OF THE KAZEE
[VOL, II
a distance. The abomination in this case is
founded on the loan being attended with
profit, inasmuch as it exempts the lender
from the danger of the road: and the * rophet
has prohibited our acquiring p?ofit upon a
loan.
BOOK XX
OF THE DUTIES OF THE KAZEE
Chap. I. — Introductory.
Chap. II. — Of Letters from one Kazee
to another.
Chap. Ill —Of Arbitration.
Chap. IV —Of the Decrees of a Kazee
relative to inheritance.
CHAPTER I
A Kazee must possess the qualifications of
a witness*- -Tux authority of a Kazee is not
valid, unless he possess the qualifications
necessary to a witness ; that is, unless he be
free, sane, adult, a Mussulman, and uncon-
victed of shnder ; because the rules with
respect to jurisdiction are tak*»n from those
with respect to evidence, since both are
analogous to authority ; for authority sig-
nifies the passing or giving effect to a sen-
tence or ipeech affecting another, either with
or without his consent ; and evidence and
jurisdiction are both of this nature. (The
rules with respect to jurisdiction are here
said to be " taken from those with respect to
evidence," because, as the sentence of the
Kazee is in conformity with the testimony of
the witness, it follows that the evidence is,
as it were, the principal, and the decree of
the Kazee the consequent) As therefore,
jurisdiction, like evidence is analogous to
authority, it follows that whoever possesses
competency to be a witness is also competent
to be a Kazee ; and also, that the qualifica-
tions requisite to a witness are in the same
manner requisite to a Kazee — and likewise,
that an unjust* man is qualified to be a
Kazee ; whence if such a person be created
a Kazee, it is valid, but still ;t is not ad-
visable : in the same manner as holds with
respect to evidence ;— that is. if a Kazee
accept the evidence of an unjust man, it is
valid, in the opinion of all our doctors ; but
still it is not advisable to admit the testi-
mony of such a person, since an unjust man
i s not deserving of credit.
He does not forfeit his office bv miscon-
duct.— IF a Kazee be a just man at the time
* Arab. Fasik. — In some instances the
term applies merely to a person of loose
character and indecorous behaviour, (See
Vol. I. p. 26 ) In the present instance ; how-
ever, the character also includes want of
integrity, as appears a little lower down.
of his appointment, and afterwards, by
taking of bribes, prove himself an unjust
man, he does not b^ such conduct become
discharged from his office, — but he is, never-
theless, deserving of a dismission. This is
the doctrine of the Zahir Rawayet ; and
it has been adopted by modern lawyers —
Shafei maintains that an unjust man is in-
capable of the office of Ka/^ee, in the same
manner as (in his opinion) he is incompe-
tent to give evidence. It is related in the
Nawadir, as an opinion of our three debtors,
that an unjust man is incapable of discharge-
ing the duties of a Kazee. Some of the
moderns have also given it as their opinion
that the appointment of a man, originally
unjust to the office of Kazee. is valid ; but
that if, having been just at the time of his
appointment, he afterwards become unjust ;
he stands discharged from his office; because
as the Sultan appointed him from a confi-
dence in his integrity, is to be presumed
that he will not acquiesce in his discharge
of the duty without integrity.
A M oof tee must be a person of good
character. — A QUESTION has arisen, whether
an unjust man be capable of being a
Mooftee ; * and on this subject different
opinions have given, Some have said
that he is incapable of being a Mooftee, be-
cause the giving of a Fitwa (or statement
of the law applicable to any case) is con-
nected with religion, and the word of an
unjust man is not creditable in matters
relative to religion. Others again have said,
that an unjust man is capable of being a
Mooftee, because of the probability that be
will toil and labour in the discharge of his
duty, lest the people charge him with his
faults. The former, however, is the better
opinion. Some have established it as a con-
dition, that a Kazee be a Moojtahid :f the
more approved doctrine is, however, that this
is merely preferable, but not indispensable.
• As ignorant pf-rson may be appointed a
Kazee, — THE appointment of an ignorant
man to the office of Kazee is valid, according-
to our doctors. — Shafei maintains that is it
not valid ; for he argues that such appoints
* Anglice, an expounder of the LAW. — As
the offices of Kazee and Mooftee are fre-
quently confounded by European writers,
it may not be improper to remark, in this
place that the word Kazee (or Cadi) is
derived from Kaza, signifying jurisdiction,
and Mooftee from Fitwa, meaning an ap-
plication or statement of the LAW. The
Mooftee, therefore, the officer who ex-
pounds and applies the law to cases, and the
Kazee the officer who gives it operation and
effect.
f Moojtahid is the highest degree to which
the learned in the law can attain, and was
formerly conferred by the Madrisas (or col-
leges) ; of which one of the first instances
occurs in the life of Haneefa, whom all the
leaned acknowledge as their superior.
BOOK XX -CHAP. I.]
DUTIES OF THE KAZEE
335
ment supposes a capability of issuing decrees,
and ot deciding between right and wrong ;
and these acts cannot be performed without
knowledge. Our doctors, on the other hand,
argue that a Kazee' s business m*y be to pas-*
decrees merely on the opinions of otners.
The object of his appointment, moreover, is
to render to every subject his jusl rights ;
and this object is accomplished by passing
decrees 01 the opinions of o:h>rs
It is the duty of th* soitere^n to appoint
fit persons to that office —It is incumbent on
the Sul-an to select for the office ofKisseea
person who is capable of discharging tie
duties of it, and passing decrees ; and who
is also in a superlative degree just and
virtuous ; for the Prophet has said "Whoever
appoints a person to the discharge of any
olfice, whilst there is aaother amongst his
subjects more qualified for the same than
trie person so aopointed, does surely commit
an injury with re>pect to the rights of Gop,
the PROPHET, and the MU<.SULM\N." It is
to be observed that a Mxijtahid means
either a person who is in a high degre:
conversant with the Hadees or acti >ns and
traditional sayings of the Prophet, and who
hasal^o a knowledge of the application of
the law to cases ; or one who ins a deep
knowledge of the application of the law t >
cases and also some acquaintance with the
Handees. Some have said that he ought also
to have a knowledge of the customs of man-
kind, as many of the laws are founded upon
them.
A, person may be appointed who has a
confidence in his own abilities —THERE is
no impropriety in selecting for the office of
K zee a person who has a thorough confi-
dence in his ability to discharge the duties
of it; because the companions of the Prophet
accepted this appointment ; and also, because
the acceptance of it is a duty incumbent on
mankind.
But not one who is dubious of himself.—
IT is abominable to select a person for the
office of Kazce who suspects that he is in-
capabk of fulfilling the duties of it, and
who is not confident of being able to act
with a strict regard to justice because the
selection of such a person is a cause of the
propagation of evil. Several of our doctors
however, have said that the acceptance of
the office of Kizee w thout compulsion is
abominab.e, because the Prophet has said,
" Vhoever is appointed Kazee suffers the
same torture with an animal, whose throat
is mangled, instead of being cut by a sharp
knife " Many of the compani >ns, moreover,
declined this appointment ; and Haneefa
persisted in refusing it, until the Sultan
caused him to be beaten in order to enforce
his acceptance of it ; but he suffered with
patience rather than accept the appointment.
Many others, in former times, have also
declined this office, Mohammed remained
thirty and odd days, or forty and odd days,
in imprisonment, and then accepted the
appjintment. In fact, the acceptance of the
office of Kazee. with an intention to main-
tain justice, is approved, although it be more
laudable to decline it : because it is a great
undertaking, and nptwithstmding a person
may have accepted it from an opinion that
he should have been able to maintain justice,
yet he may have erred ia this opinion, and
afterwards stand in need of the assistance of
others when such assistance Is not to be had,
Hence it is most laudable to decline it ; —
unbss, nowever, there be n^> other person so
c*pa >L' of discharging the duties of it, in
which case the acce nance of it is an injum-
bent duty as it tendj to preserve the rights
ot' mankind, aid to purge the world of in-
ju.-tice
The appointment mist not be solicitedor
coveted. —I? beoo.nes Mussulmans neitherto
covet the appointment of Kazee in their
heirts, nor to desire it with their tongues
because the Prophet has said. Whosoever
seeks the appointmsnt of Kazee shall be left
to himself ; but to him wh;> accepts it on
compulsion, an angel shall descend and give
directions ; and also, beciuse whatsoever de-
sires tins a->pjint;tiimt shows a confidence in
hirns*lf, which will preclude him from in-
str ic ion : an 1 wh >evjr, oci the other hand,
puts his trast in GOD, will be secretly in-
spired with a knowledge of what is right
in the discharge of his office.
IT is lawful to accept the office of Kazee
from a tyrannical Saltan, in the same
manner as from a just Sultan ; because some
of the companions accepted this offi:efrom
Moaviah.f u >t\v,th tandmg the right of
government during his time remained with
Alee : and also, because some of the followers J.
accepted it from Hijai g who was a tyrant
Hence the acceptance ot the office of Kazee
from a tyrant Is lawful ;— -provided, however
the tyrant do uoi put it out of the power of
the Kazee to render right to the people ; for
otherwise the acceptance of it would not be
*The term tyrannical, when applied to a
sovereign, generally signifies his being an
usurper.
tMoaviah, the son of Abee Sifwan. He
had been originally appointed, by Othman,
to the government ot Syria ; and suspecting
Alee to be instrumental to the death of his
patron Oihman (who was some timr after
sl.iLi in an insurrection) r fused to acknow-
ledge him on his being elected to succeed
Otiiiiun, and in the end obtained the Khali-
fat for himself, being the first Khalif of
the house of Ommiah, commonly termed the
Ommiad Khalifa*
t Arab, Tabayeen —A title given to those
doctors, £c., who succeeded the Ishab, or
companions of the Prophet.
§Hijaj Bin Yoosafal Sakifee — He had
been originally appcinted Governor of Ara-
bian Irak by Abdamalik, the fifth Khalifa of
the house of Ommiah, after which he defeated
Abdalla bi » Zabair, who had assumed he
title.
336
DUTIES OF THE KAZEE
L. II.
lawful, as the end of the appointment could
not then be answered.
A Kazeet on his appointment, must take
possession of all the records, &c. appertain-
ing to his office —WHENEVER a person is
appointed to the office of Kazee, it is incums
bent on him to demand the Dewan of the
former Kazee.— By the Dewan is m^ant the
bags in which the records and other papers
are kept ; for those must be preserved to
serve as vouchers on future occasions.—
These bags, therefore, must always remain
in the hands of the person possessing the
judicial authority ; and as the judichl autho-
rity rests, for the time being, with the person
appointed to the office, he must therefore
require them from the Kazee who has been
dismissed.— It js to be observed thctt the
papers, in which such proceedings, &c. are
written, must necessarily be the property
either of the public treasury, of the liti-
gants, or of the dismissed Kazee —Still,
however, in all these cases, the new-ap-
pointed Kazee has a right to demand them
from the late one :— in the first case, evi-
dently ; and in the second, because the
litigants left the said papers in the hands of
the late Kazee, that he might act according
to them ; and as his power of action after-
wards devolves upon the new Kazee, he is of ]
course entitled to receive them ; and also in I
the third case, because the late Kazse did j
not preserve them as property, but merely !
as the instruments of justice ; and hence it
is the same as if he had devoted them to the
public.
Through his Ameens, who must investigate
the nature of them —IT is requisite that the
new Kazee send two Ameens,* in order to
take possession of the bags of the Dewan in
the presence of the late Kazee, or in the
presence of his Ameen. It is also necessary I
that they ask and inquire of the late Kazee, I
which are the papers that register his pro- '
ceedmgs ; and which are those that establish
guardians for the property of orphans ? and
that then the late Kazee arrange the several
descriptions of papers in different bags, in
order that no doubt may arise to the new
Kazee.— It is to be observed, however, that
this investigation is merely for the sake of
knowledge, and not for the purpose of im-
peachment.
And must inquire and decide concerning
prisoners confined upon any legal claim — IT
is requisite that the new-appointed Kazee
examine into the state of the prisoners,
because this is one of the duties of his office.
—Whoever of them makes an acknowledg-
ment of right in favour of others, the new
Kazee must render it obligatory upon him,
as acknowledgment induces obligation on
the acknowledger.— Whoever of them, on
the contrary, makes a denial, the new Kazee
*Anghce, trustees or confidants! It is
the name of an office in the Kazee's court,
in the manner of a register. It also signifies
? i inquisitor.
must not credit the affirmation of the late
Kazee with respect to him unless supported
by evidence, because, in consequence of his
dismission, his affirmation carries no more
authority than that of any of the people in
general ; and the evidence of one person is
not proof, more especially when such evi-
dence relates to an action of his own. — If
the late Kazee should not be able, in the
last instance, to produce eviden:e, still the
new one must not immediately release, such
prisoner ; on the contrary, he must issue
proclamation and use circumspection ; that
is, he must cause a parson to proclaim, every
day, that "the Kazee directs that whatsoever
has any claim agunit such a prisoner is
appear and be confronted with him." — If
any person appear accordingly, and prefer,
claim against the prisoner, the Kazee must
desire him to produce evidence. — but if no-
person appear, he must then release the
prisoner, provided he see it advisable. — He
must not, however, precipitate his enlarge-
ment, before these precautions have been
taken ; because the imprisonment of him by
the former Kazee having been done appa-
rently with reason, it is probable, if be
should hastily release him, that the claimant
against him might lose his right.
And also concerning deposits of contested
property. —Ix is requisite that the new
Kazee examine i nto the deposits,* which the
dismissed Kazee may declare to be in the
hands of particular persons, and also into
the proceeds arising from the Wakfs [cha-
ritabie appropriations] of Mussulmans,— and
that he act with these according to such
evidence as may be established concerning
them, or according to the acknowledgment
of the person in whose hands are the de-
posits or the proceeds of the Wakf, because
evidence and acknowledgment are both
proofs : — but he must not credit the affirma-
tion of the late Kazee : — unless the person
in whose hands the property lies avow that
"the said property was given in charge to
him by the Kazee :" in which case the new
Kazee may credit the affirmation of the old
one with regard to such property, as it here
appears, from the trustees acknowledgment,
that the psoperty in question had been in
the possession of the dismissed Kazee,
whence it may be said to be still in his
hands : — his affirmation, therefore, with re-
spect to such property, must, in this case,
be credited. — This proceeds on a supposition
that the actual possessor had from the be-
ginning acknowledged the dismissed Kazee's
consignment of the property to him ; for if
he shouid first have decla-ed, "this property
belongs to Zeyd" (for instance), and after-
wards, "the dismissed Kazee deposited this
* Meaning controverted property, held by
the Kazee until the issue of the suit or
litigation, and which he delivers over to
some person to keep, in the manner of a
trust.
BOOK XX.— CHAP. I.]
DUTIES OF THE KA2EE
337
withjmc." and the Kazee affirm it to be the
property of some other than Zeyd, in this
case he fthe possessor] mu.^t g'v-* the pro-
perty to Zeyd, in favour of whom he made
the first acknowledgment, as his right is
rendered preferable by such acknowledg-
ment ,* an ' he must then give a compen^a-
tion, also, to the dismissed Kazee, because
of his having afterwards acknowledged that
"the said property was in his custody :" —
and the dismissed Kazee must give the com-
pensation so received to the person in favour
of whom he makes the rafTirmation.
He must execute his duty in a mcsque—or
other public place. — IT is requisite that the
Kazee sit openly in a mosque for the execu-
tion of his office, in order that his place may
not be uncertain to travellers or to the in-
habitants of the town.— The Jama mosgue*
is the most eligible place, if it be situated
within the city, because it is the most noto-
rious.—'Shafei maintains that it is abominable
for a Kazee to sit in a mosque f >r the execu-
tion of h*s duty, since polytheists are ad-
mitted into the court of the Kazee. and
these are declared in the KOR*N to be filth.
— Moreover, worhen during their monthly
courses may enter the court of the Kazee,
but are not allowed admission into a mosque.
— The arguments of our doctors on this
point are twofold, FIRST, the Prophet has
said "mosques are intended for the praise of
God and the passing of decrees ;" ar.d he
moreover decided disputes between litigants
in the place of his Yettekaf [a particular
penance] by which must be understood a
mosque : besides, the Rashedian, Khalifa sat
in mosques, for the purpose of hearing and
deciding causes. — SECONDLY, the duty of a
Kazee is of a pious nature, and is therefore
performed in mosques in the same manner
as prayers are offered there — In arswer to
Shafei*, it is to be observed, that as the im-
purity of polytheists relatee to their faith
and not to their externals, they are not
therefore prohibited from entering a mosque;
and with respect to m?rstruous women,
they have it in their power to civ* notice of
their case to the Razee, who may then go out
and meet them at the gate of the mosque,
or depute some other for that purpose, as
is done where the case is of a nature unft
for public discussion,
Or in h's own house. — THERE is no impro-
priety in the Kazee's sitting in his own house
to pass judgment ; but it is requisite that he
give orders for a free access to the people.
And must be accompanied by his usual
associates. — IT i s requisite that such people
sit along with the Kazee as were used to sit
with him prior to his appointment to the
office; because, if he were to sit alone in his
* The Jama mosque is the principal
mosque in a town, where public prayer is
read every Friday: in opposition to a Masjid,
which signifies a smal'er mosque, where
public prayer is not read.
house, he would thereby give rife to sus-
picion.
He must not accept of any presents, except
from relations or intimate friends. —The
Kazee must not accept of any presents, ex-
cepting from relations allied to him within
the prohibited degress, or those from whom
he was used to receive them prior to his ap-
pointment ; neither of which can be esteemed
to be on account of his office, the one being
in consequence of relationship, and the
other of all acquain'ance.— Excepting these,
therefore he must not accept presents from
any pe's:>n as these would be considered
as given to him on account of his office, and
such it is unlawful for him to enjoy.— If,
also his reiation within the prohibited de-
grees, having a cause depending before him.
should offer him a present, it is incumbent
on him to refuse it.— So likewise, if any
pei o i accustomed to send him presents prior
to 1 is appointment should send him more
th.n usual,— or if, having a suit before him
he should send him any presents whatever ;
in n ither case is it lawful for him to accept
them, since they would be considered as
siven to him in consequence of his office, and
hence an abstinence from such is indispen-
sable, . _
Nor ff any feast or entertainment— I HE
Kazee must not accept of an invitation to
any entertainment, excepting a general one ;
because a particular entertainment would be
supposed to have been given on account ot
his office, and his acceptance of it would
therefore render him liable to suspicio : in
opposition to the case of a general one.—
This ordinance, which has been adopted by
the two Eiders, applies equally to the feasts
of relations and others.— It is related, as an
opinion of Mohammed, that the Kazee may
accept of an invitation to a feast from his
relation, although it be a particular one, in
the same manner as he is permitted to accept
of present from him —It is to be observed
that a particular entertainment means such
as depends entirely on the preference of the
Kazee ; that is, such as would not take place
in case of his absence ; and a general one is
*He must ' attend funerals, and visit the sick.
—IT is fitting that the K*zee attend at
funeral prayers ; and also, that he visit the
sick ; for these are amongst the duties ot a
Mussulman, inasmuch as the P'°Phet' "J
enumerating six incumbent offices of the
Mussulmans towards each other, mentioned
funeral prayers and the visiting of the sick.
—But it is requisite that, on these occasions,
he make no unnecessary delay, nor permit
any person to hold a covcrsation on the sub-
ject of his suit, lest he •hould thereby afford
t0° Precautions requisite in his general con-
duct and behaviour —THE Kazee must not
g^e an entertainment to one of the patties
in a suit without the other ; because the
Prophet has prohibited this ; and also be-
cause it U of a suspicious nature.
338
DUTIES OF THE KAZEE
[VOL II,
WHEN the two part es meet in the as-
sembly of the Kazee, he must behave to both
(in regard to making them sit down, and the
like) with an equal degree of attention
because the Prophet has said, "Let a stric
equality be observed towards the parties in s
suit with respect to their sitting down, or
directing them, or looking towards them."
THE Kazee ust not speak privately to
either of the parties, or make signs towards
him, to give him inductions or support his
argument ; for, besides giving rise to sus-
picion, he would thereby depress the other
party, who might be induced to forego his
claim, from an opinion that the Kazee was
biased towards the other.
THE Kazee must not smile in the face oi
one of the parties, because that will give
him a confidence above the other ; neither
must he give too much encouragement to
either, as he would thereby dcstory the
proper awe and respect due to his office.
And in his conduct towards witnesses in
court, or whilst giving evidence. — IT is abom-
inable in the Kazee to prompt or instruct a
witness, by saying to him (for instance), "Is
not your evidencJ to this or 19 that effect ?"
Because assistance is hereby, in effect, eiven
to one of the parties ; and it is therefore
abominable, in the same manner, as it would
bt to instruct either of the parties themselves.
— Aboo Yoosaf has said that instruction to a
witness, on an occasion free from suspicion,
is laudable ; — because a witness may some-
times be at a stand from the awe with which
he is struck in the assembly of the Kazee:
and in such case to encourage him, in order
to give life to the right of his party, is the
same as the deputing of a person to compel
the appearance of the defendant in court,
which is lawful, notwithstanding it be an
assistance to the plaintff,— As, also, it is law-
ful to exact bail from the defendant, al-
though an assistance be thereby given to the
plaintiff ; in the same manner it is lawful to
give encouragement to a witness, to preserve
his right, although assistance be thereby
offered to one of the parties.
He must not give judgment at a time when
his undert tending fl>- not perfectly clear and
unbiased. — THE Kazee must not give judg-
ment when he is hungry or thirsty, because
such situations diminish the intellect and
understanding of the person affected by them.
Neither must he give judgment when he is
in a passion or when he has filled his
stomach with food, because the Prophet has
said "Let not the magistrate decide between
disputants when he is angry or fv»ll."
A YOUNG Kazee ought to satisfy his pas-
sion with his wife before he sits in the court,
that he may not be attracted by the view of
women that may be present there.
Section
Of Imperishment.
Rules in imprisonment for <f*fcf,— WHEN i
a claimant establishes his right before the '
Kazee, and demands of him the imprison-
ment of his debtor, the Kazee must not
precipitately comply, but must first order
the debtor to render the right ; ufter which,
if he should attempt to delay, the Kazee may
imprison him. — This is related in Kadooree :
and it proceeds on the principle, that im-
prisonment is the punishment of delay ; —
whence it is necessary first to order him to
restore the right to its owner, that his delay
may be made apparent. — This is where the
right is established by the debtor's acknow-
ledgment ; for in that case the non- payment
on the first demand is not construed into
delay, because it is possible that the debtor
expects a respite, and therefore has not
brought the money aiong with him. But if
he should delay atter the decree of the
Kazee he must then be imprisoned, as his
delay is then evident —Where, on the other
hand, the right is established by evidence,
the defendant must be imprisoned imme-
diately on the establishment of it ; because
his denial, wh'ch occasioned the necessity of
proof by evidence, furnishes a sufficient argu-
ment of his intention to delay.
In an award of drbt, the defendant must
be imprisoned immediately on neglecting to
comply with the decree. — provided it be
incursedfor an equivalent, or by a contract
of marriage.— -I? a defendant, after the
decree of the Kaie-i against him delay the
payment in a case where the debt due was
contracted for some equivalent (as in the
case of goo 's purchased for a price, or of
money, or of goods borrowed on promise of
a return), the Kazee must immediately
imprison him, because the property he
received is a proof of his being possessed of
wealth.— In the same manner, the Kazee
must imprison a refractorv defendant who
has undertaken an obligation in virtue of
some contract, such as marriaee or bail,
because his voluntary engagement in an
obligation is an argument of his possession
of wealth, since no one is supposed to under-
take what he is not competent to fulfil. —
If, also, in this case, he plead poverty, this
plea is nevertheless rejected, and the plain-
tiff's assertion (of his being possessed of
wealth) credited.— It is to be observed, that
:he obligation contracted from marriage, as
icre mentioned, relates only to the ~Mihr
Vfpoajal, or prompt dower, and not to the
^ihr Mowjil, or deferred dower, because an
engagement to pay a future debt does not
argue the possession of wealth. — In cases,
a'so, of debt of any other description (such
as a compensation for usurped property,
amercement for a crime, the consideration of
Citabat, compensation for the freedom of a
partnership slave, the maintenance of a wife,
u *p/ortll)» the Kazee must not imprison
he defendant when he pleads poverty ;
because none of these acts indicate the
possession of wealth, and therefore his
declaration of poverty must be credited.
And also in every other instance, if the
reditor prove his capacity to discharge it —
BOOK XX.—CHAP. IJ.
DUTIES OF THE KAZEE
339
IF, however, the plaintiff prove that he is
possessed of wealth, the Kazee must in that
case imprison the debtor, under any of the
above circumstance — The distinctions here
stated are from the Zahir Rawayet, — (t is
said, by other authorities, that the assertion
of the plaintiff must be credited in every
case of debt ; that is, whether one debt be
contracted in exchange for an exquivalent,
or voluntari y engaged for by the party :
because poverty is the original state of man,
and wealth merely supervenient, and thus
the netural condition of man is an argument
of the truth of the defendant's declaration
of poverty.— There is also another tradition,
that the defendant's declaration of poverty
is creditable in every case of debt, excepting
such as is contracted in exchange for an
equivalent.
Case of a wife suing fur her maintenance.
— IF a wife demand her subsistence from her
husband, and he plead poverty, his declara-
tion, corroborated by an oath, is to be
credited. — In the same manner, if a person
emancipate his share in a partnership slave,
and his partner demand a compensation for
his share, and he plead poverty, his declara-
tion is to be credited.
OBJECTION — These two cases are con-
formable to the two last quoted traditions :
but they are repugnant to the doctrine of
the Zahir Ra vayet ; for although ; in virtue
of the marriage in the one case, and the
emancipation of the joint slave in the other,
there exists in both a voluntary engagement
of responsibility, which indicates the pos-
session of wealth, still his declaration of
poverty is nevertheless declared to be credi-
table.
REPLY. — Subsistence to a wife is not an
absolute debt (that is, such as can be rendered
void only by payment or exemption), for it be-
comes void, according to all our doctors, with-
out payment or exemption, in case of death*
In the same manner also, compensation
for freedom is not an absolute debt, according
to Haneefa, being in his opinion the same
as the consideration of Kitabat : — and the
doctrine of the Zahir Rawayet alludes only
to absolute debts
IN a case where the defendant pleada
poverty, and the plantjff proves, by evidence,
his possession of wealth, the Kazee must
imprison him [the defendant] for two or
three months ; after which it is requisite
that he make an investigation into his
circumstances ; and if upon such investi-
gation; the people say he is wealthy, let him
be continued in confinement, — but if they
say he is poor, let him be released ; because
he stands in need of an allowance of time to
enable him to acquire which : and the con-
tinuance of his imprisonment is, in such
case, an oppression. — In Kadooree's abrige-
ment, it is related that he is to be rel ased
from confinement, but that the plaintiff is
not to be prohited from using importunity
with him. — The case of importnnitv will be
more fully discussed hereafter in treating
of Hijr.— - The period of imprisonment is
fixed at two or three months for this reason!
that as the imprisonment is inflicted on
account of contumacy, in the debtor's with*
holding payment of the debt, notwith-
standing the Kazee's order, the Kazee must
therefore imprison him until such time as
he reveal his property; in case he have any
concealed ; and as it is requisite that the
teim be of some duration, to the end that
this advantage may be obtained from it,
Muhammad has therefore fitted it at the
period abov* mentioned.— Other authorities
nx it at one month, at five months and at
six months —In fact, this is a point which
must be left io the discretion of the Kazee :
because to conditions of men are various
in regard to their endurance of the hardships
of imprisonment, some being capable of
bearing it longer than others ; and hence
the necessity of leaving it to the Kazee to
act as he may deem best,— If the debtor
prove his poverty by witnesses, prior to the
expiration of the prescribed period,* in that
ca>e there are two traditions. According
to one. the witnesses are to be credited : but
according to the other their evidence is not
to be admitted.— Many of our modern doctors
follow the latter opinion.
Case of acknowledgement "/ debt. — IT is
related, in the Jama Sagheer, that if a person
make an acknowledgment of debt before the
Kazee, he [the Kazee] must in such case
imprison him, and must then make inquiry
of the people into his circumstances. If it
appear that he is rich, he must in that case
continue his imprisonment : but if his poverty
be made apparent, he must release him — The
compiler of the Hedaya remarks that this
alludes to a person who, having at one time
made an acknowledgment of debt to the
Kazee, or to some other, afterwards discovers
an intention of delay ; for otherwise it would
differ from the doctrine of Kadooree, before
quoted in which it is expressly declared
that the Kazee ought not immediately to
imprison a debtor after acknowledgment —
(The compiler gives this explanation with
a view to reconile the doctrine of the Jama
Sagheer with that of Kadooree )
A husband may be imprisoned for the
maintenance of his wife ; but a father cannot
be imprisoned at the suit of his ton — A
HUSBAND may be imprisoned for the main-
tenance of his wife, because in w.tholding
it he is quilty of oppression : but a father
cannot be imprisoned for a debt due to his
son, because imprisonment is a species of
severity; which a son has no right to be
the cause of inflicting on his father : in the
same manner as in cases of retaliation or
• This is an apparent contradiction to
what immediately precedes, concerning the
discretionary power of the Kazee with rospect
to the period of imprisonment. — It is, hbw-
ever, merely a continuation of the doctrine
Mohammed, who has prescribed a term.
340
DUTI fc.S OF THE KAZEE'
[VOL. II.
p'-inishmcnt — If, however, a father withhold
maintenance from an infant son, who has no
property of his own, he must be imprisoned ;
because this tends to preserve the life of
the child ; and also because there is no other
remedy, since maintenance (in opposition to
debt) is annulled by the lapse of rime, and
therefore it is necessary to prevent its
destruction for the future
CHAPTER II.
OF LETTERS FROM ONE KAZEE TO ANOTHER
Letters authenticated by evidence are ad-
missible in cases of property. — A LETTER
from one Kazee to another is admissible
relative to all rights except punishment and
retaliation, provided it be authenticated by
evidence exhibited before the Kazee to whom
it is addressed, for which there is an absolute
necessitv, as will t e shown hereafter
Difference between a record, and a Kazee's
letter. — IF witnesses exhibit evidence, before
a Kazee, against a defendant, the subject of
the suit being at a distance, the Kazee may
pass a decree upon such testimony, because
it establishes proof. The decree so made is
written down, and this writing is termed a
Sidjil or record, and is not considered as the
letter of one Kazee to another.* — If, how-
ever, the evidence be given in the absence of
the defendants, the Kazee must not pass a
decree, it being unlawful to do so in the
absence of the person whom it affects , but
he must take down the evidence in writing,
in order that the Kazee to whom such w. it-
ing shall be addressed may use it as evidence,
— This writing is termed Kitab Hookmee, or
the letter of one Kazee to another, and is a
transcript of real evidence.
A letser is transmissible only on certain
conditions — It is to be observed that the
transmission of letters of one Kazee to an-
other is restricted to several conditions,
which will hereafter be explained ; and the
legality of it is founded on its necessity,
since it may often be impossible for the
plaintiff to bring the d fendmt and the
evidences together in the same place, be-
:ause of the distance of their abodes — Hence
thelettlerof one Kazee to another is, as it
vere, the evidence of evidence, us a branch
From the trunk — It also to be observed
that the term rights above used; compre-
hends debts, and also marriage dowers
portions of heiri usurpations, contested
deposits, or Mozaribat stock denied by the
* This case supposes the thing in dispute
o be situated in the jurisdiction of a different
Cazee from him before whom the parties
>ring their suit ; and the decree whic h in
his case the Kazee gives being written down,
s carried to the other Kazee, who is bound
o see it enforced.
manager ; because all these are equiva-
Jlent to bebt, and are capable of ascertain-
ment by description, without the necessity
of actual exhibition. — Letters from one
Kazee to another are also admissible in the
case of immoveable property, because it is
capable of ascertainment by a description of
its boundaries : — but they are not admissible
with regard to movable property, because
in that case, there is a necessity for actual
exhibition. — It is related as an opinion of
Aboo Yoosaf, that letters from one Kazee to
another are admissible wjth respect to a male
slave, but not with respect to a female, be-
cause the probability of elopement is stronger
in the one than the other. — It is also related
as an opinion of his, that they are admissible
with respect to both mile and female slaves,
but that particular conditions are requisite
to establish their admissibility , which will
be expained in their proper place— It is
related as an opinion of Mohammed, that the
letters of a Kazee are adrnissible with respect
to every species of movable property, and
this cpinion has been adopted by our modern
doctors
The testimony requisite to authenticate it.
— THE letters of Kazees are not admissible
unless authenticated by the testimony of
two men, or of one man and two women .
because there is a similarity between a'l
letters, and H is therefore necessary to estab-
lish their authenticity by complete proof, —
that is, by evidence. — The ground of this is
that these letters are binding in their nature,
and therefore require to be completely proved
—It is otherwise with respect to the letters of
Hirbees [Infidel aliens] to the Imam, solicit-
ing protection ; for these require not to be
proved by evidence since they are not binding
in their natute, inasmuch as it rests with
the Imam to grant the protection or not at
his plesure. — It is also otherwise with re-
spect to the message of a Kazee to a Mo jzee
"purgator of witneses,] or with respect to
the message of a purgator to the Kazece, for
such a message has no force, considered as
:he message of a purgator but merely as
3eing a corroboration of the testimony of
witnesses.
The contents must be previously explained
o the anthenticating witnesses. — IT is incum-
bent on the Kazee to read his letter in the
presence of the witnesses who are to authen-
icate it, or to explain the contents of it to
hem, that they may have a knowledge
hereof : because evidence cannot be given
without knowledge. Afterwards he must
close the letter, and affix his seal to it in
:heir presence, and then consign it over to
them, that they may have a security against
any possibility of alteration in it. — This is
according to Haneefa and Mohammed ; and
he reason is, that a knowledge of the subject
of the letter, and an evidence of the affixture
f the seal, are indispensable requisites ; and
n the same manner a remembrance of the
,ontents is also requisite ; whence i* is that the
Cazee must furnish tnem with an open copy
BOOK XX —CHAP. II.]
DUTIES OF THE KAZEE
341
of the letter; with which they may refresh
their memory. — It is however re'ated, as the
last opinion of Aboo Yoosaf, that no one of
these particulars is requisite, it being suffi-
cient to attest that this is the letter and this
the seal of the Kazee ; and it is also reported,
from him, that the affixture of the seal is not
necessary. — Hence it appears that, after his
attaining the dignity of Kazee, he considered
this matter as of little consequence ; and his
opinion is of great weight, since those that
only hear are not so competent to determine
as those that *ee. — Shimsal-Ayma has adopted
the opinion of Aboo Yoosaf.
It must not be received but in presence
of the dsfendant —WHEN a letter from a
Kazee arrives, the Kazee to whom it is
addressed ought not to receive it unless in
the presence of the defendant ; because as
such letter is equivelent to an exhibition of
devidence, the presence of the defendant is
therefore indispensable.— It is otherwise with
respect to the other Kazee's hearing the
evidence, because that is done merely with
a view to transmit it, and not to pass
sentence upon it.
Forms to be observed in the reception of it.
— WHEN the witness bring the letter to the
Kazee to whom it is addressed, let him first
look at the seal of it and after hearing their
testimony) that "this is the letter of a par-
ticular Kazee.'1— that "he delivered it to
them in his court of judgment," — the "he
read it in their presence, "-and, that "he
affixed his seal to it before them'), let him
then open and read it in the presence of the
defendant, and pass a decree agreeably to the
contents. — This is according to Haneefa and
Mohammed.— Aboo Yoosaf has said it is
sufficient for the witnesses to attest that
"this is the letter and seal of such a Kazee."
— In the Kadooree, the proof of the integrity
of the witnesses prior to the opening of the
letter is not made a condition.— The better
opinion, however, is that it is a necessary
condition ; and the same has been declared
by Khasaf ; fcr this reason, that there may
eventually be a necessity to recur to other
evidence, in case of a want of proof of the
integrity of those that brought it ; and it
would be impossible for any others to eive
their testimony unless the seal still remained
upon it : it is therefore absolutely necessary
that the Kazee defer breaking the seal of the
letter until the integrity of 'the bearers be
proved
It is rendered void by the death or dis-
mission of the writter in the interium. — ONE
Kazee must not accept a letter from another,
unless the Kazee that wrote it be, at the
time, still fixed and established in his office.
•—If, therefore, prior to the receipt of the
letter, the Kazee that wrote it should have
died, or have been dismissed from his office,
or have become disqualified from the duties
of it, from apostasy or insanity, or from
having suffered punishment for slander.—
the Kazee to whom the letter is addressed
must then reject it ; because the author of it
being at that period reduced to the level of
the people, any information from, him, in-
dependent of what relates to himself, or
mutually to them both, is not admissible.
Or (unies? generally addressed) by the
death or dismission of him to whom it is
transmitted.— So, likewise, if the Kazee to
whom the letter is addressed should have
died, another Kazee must not open it, unless
the address run in this manner, "To the son
of . Kazee of the city of , or to
whatever Kazee it may concern this letter,"
— in which case another Kazee may receive it,
because he is comprehended in the address
from the specification of his office and city
—If the address, however, be merely, "To
whatever Kazee it may concern,' he is no
entitled to open it, from the uncertainty of
the address.
IF the defendant die previous to the arrival
of the letter with the Kazee, judgment must
be passed upon it in presence of his heir, as
being his representative.
It is not admissible in cases of punishment
or retaliation — A LETTER from one Kazee to
another is not valid in cases of retaliation of
punishment ; because as in such a letter there
exists a semblance of substitution (for the
letter is not itself evidence, but merely a
substitute for evidence), it is therefore equi-
valent to evidence upon evidence ; and as
evidence upon evidence is not admitted in
these cases, the letter of a Kazee cannot be
admitted.
Section.
A woman may executive the office of Kazee
in all cases of prvperty. — A WOMAN may
execute the duties of a Kazee in every case
except punishme.it or retaliation, in con-
formity with the rule that the evidence of a
woman is admissible in admissible in every
cases of punishment or retaliation : for the
rules of jurisdiction are derived from the
rules of evidence, as was before stated.
A Kazee is not at liberty to appoint a deputy
without the authority of the Imam. — IT is
not permitted to a Kazee to appoint a deputy,
unless he have received a special power from
the Imam to that effect : for although he
have been himself appointed to the office of
Kazee, yet he has not been empowered to
confer such appointment on another. — Hence,
in the same manner as it is unlawful for an
agent to appoint an agent unless with the
permission of his constiruent, so is it un-
lawful for a Kazee to appoint a deputy unless
by the authority of the Imam. — It is other-
wise with respect to a person appointed to
read the Friday's prayers; for he may
appoint a deputy to act for him, since if any
delay should happen in the performance of
this service, the prayers would become void
and null, as the period for them is fixed :
the appointment of a person to read these
prayers, therefore, is virtually an argument
of his being empowered to appoint a deputy
to act for him, with a view to prevent th«
nullity of the service -.—country tojurisdic-
342
DUTIES OF THE KAZEE
[VOL. II.
tion, which, not depending on a fixed period,
is not therefore defeated by delay.
But the decrees of the deputy, passed in his
presence, or with his approbation, are valid.
—!F a Kaz.:e, not having power to appoint a
deputy, should neverthless appoint one, and
the said deputy, either in presence of the
Kazee, or in his absence, but with his appro
bation, pass a decree, the decree so pis *ed is
valid ;-*in the same manner as where the
agent of an agent performs any act in the
presence of the agent, or with his consent, in
which case such act is valid. — The ground of
this is that the decree being passed in the
presence of the Kazee, or with his appro-
bation, and the act being performed in the
presence of the agent, or with his appro-
bation, the judgment tnd reflection of the
Kazee himself is therefore exerised in the
case of the decree passed by his deputy, —
and the judgement and reflection of the agent
in the case of the deed done by his agent, —
which is what was required.
If he appoint a deputy, by authority , he
cannot afterwards dismiss him.— IP the Imam
give authority to the Kazee to appoint whom-
soever he pleased hi« agent, the person whom
he appoints b. comes in that case the deputy
of the Sultan; and the Kazee is not entitled
to dismiss him.
He must maintain and enforce the equal
decree of every other Kazee.— IT is in-
cumbent upon every Kazee to maintain and
enforce the decree of another Kazee, unless
such decree be repugnant to the doctrine of
the Kora , or of the Sonna, or of the opinions
of our doctors ; in other words, unless it be
a decision unsupported by authority.— It is
related, in the Jama Sagheer, that if a
Kazee pass a decree in a metier concerning
which different opinions have been given,
and be afterwards succeeded by another
Kazee of a different opinion with respect to
that matter, the latter Kazee must never-
theless enforce the decree so made ; for it is
a rule that when a Kazee passes a decree in
a doubtful case, the decree is execut* d
accordingly ; not is it permitud to a suc-
ceeding Kazee to rescind it because although
the succeeding Kazee be tqual in pom of
judgment to his predecessor, still the juv g-
rnent ot the predecessor is in trm instance
allowed a superiority, because of its having
been exercised in passing the decree ; and
therefore it cannot be affected by the judg
ment of his successor, which is deemed
inferior from its not having been exercised.
His determination in a doubtful case is
valid, although itberepungnant to the tenets
of his sect. —If a Kaz e, in a cloubtfu
case, determine country to his tenets, from
tawing forgotten the principles of his sect,
such decree must neverthless be enforced,
according to Haneefa,— If, on the contrary,
he pass such decree knowingly, and not
through forge tfulness, there are in that case
two opinions recorded. — According to one,
the decree must be enforced in that instance
also, because the error in is is uncertain —
In the opinion of the two disciples the
decree must not be enforced in either case ;
that is, whether the error be wilful, or pro-
ceed from forgetfulness : and this is the
approved exposition.— By a doubtful case is
meant one in regard to which there is no
particular ordinance, either by the word of
Gop, or by the Prophet, and concerning
which, consequently, different opinions have
been supported by the companions and their
followers.— Where a great number, however,
have concurred and only a few have differed,
it is not considered as a doubtful case.
An article decreed unlawful, upon evi-
dence, continues so, although the evidence
prove fals^. — EVERYTHING of which the
illegality is decieed by the Kazee from
apparent circumstances, that is to say,
from the testimony of witness, although
in reality such testimony be false, is never-
theless ipso facto unlawful,*— This is ac-
cording to Haneefa : and he is also of the
same opinion where the Kazee decrees the
legality of a thing; provided, however, that
the claim of the plaintiff be founded on some
determinate plea, such as purchase, lease,
or marriage,— as if, for instance, he should
claim a female slave by asserting that he
had purchased her,
A decree cannut be passed against an
absentee but in presence of his represen-
tative.— THE Kazee must not pass a decree
against an absentee unless in the presence
of his representative.— Shafei maintains
that it is lawful for a Kazee to pass a de-
cree against an absentee ; because, upon
the establishment of proof by testimony
the right in the judgment of the Kazee
becomes evident —The arguments of our
doctors upon this point are twofold — FIRST,
the passing of a decree on the testimony of
witnesses is with a view to put an end to
contention ; and as contention supposes a
jrefusal on the part of the defendant, it
follows that as his absence precludes the
possibility of his refusal, no contention can
have existed. SECONDLY, the absence of
the defendant admits of two suppositions,
namely, that (if present) he would either
have acknowledged the claim, or denied it :
if the former, the Kazee must have passed a
decree upon that ground ; or, if the letter,
upon testimony. Now decrees passed on
those different grounds are of a distinct
nature, since that which is founded on tes-
timoney is binding on ail men, whereas the
other is not.— Where, therefore, the defen-
dant is absent, it becomes a matter of doubt
with the Kazee wl at kind of decree he ought
to pass ; and hence it is requisite that he sus-
pend it until the arrival of the defendant,
•For instance, if two people declare that
there is a drop of wine in a particular vessel
of water, and the Kazee in consequence de-
cree it to be unlawful, it must be considered
as such, although the falsity of their decla-
idtion be afterwards proved,
BDOK XX -CHAP. IF.]
DUTIES OF THE KAZSE
343
when the nature of the decree he ought to
pass will be ascertained.
Nor against one who first npvos s the claim
and then disappears. — IP a defendant, having
first denied the claim, should afterwards dis-
appear in that case also the Kazee must sus-
pend his proceeding during his absence,
because is is requisite that the denial exist
at the time of passing the decree, which ?s
not the case in the present instance. — The
opinion of Aboo Yoosaf. on this cas"*, is
different. — It is to be observed that the
representative of an absentee i< either one
appointed by himself to act for him (such
as an agent), or one appointed by nw (such
as an executor nominated bv the Kazee), or.
lastly, one who stands as virtual represen-
tative, by the claim which th» plaintiff pre-
fers against the absentee being aNo a can*?
of claim against some person present. This
last may occur in various modes ; and Hie
following may serve for an examole — A
person establishes, by testimony, his rieht
to a house in the possession of a pnrtic'ilqr
person, in virtue of his having purchased it
from an absentee, who was at the time the
proprietor of it and from whom th<» present
possessor has usurped it ; — in which rase, if
the possessor denv all this, and the plaintiff
establish it by evidence, the Kazee may pass
a decree relating both to the abeentee and
the person present ; nor would the denial of
the sa^e by the absenee if he should after
wards return, be credited, because th<» pur-
chase of the house from its proprietor is the
cause of that which the paintiff claims from
the person present, namely, the richt of pro-
perty in the house. Tn such case, therefore,
the person present stands as the agent for
the absentee, and his denial is consequently
equivalent to that of the absentee. — The
group of this is that the plaintiff is not
capable of proving his claim against the
person present, unless he first establish it
against the sentence. The person present
is therefore considered as the resoresentative
of the absentee ; and hence the decree of the
Kazee against the person present stands as the
decree against the absentee — Where, how-
ever, the claim of the plaintiff upon the
absentee is the condition of somethine which
he claims apainst the oerson present, the
latter is not in that case considered as the
representative of the absentee. A full dis-
cussion of this if to be found in the Jama.
The Kazee mav lend the proper tv of or
phans.-^lT is lawful for Kazee to lend the
property of orphans, keeping a record of it in
writing because such loans is advantageous
for the orphans, since it tends to preserve
and secure their property ; and the Kazee
has the power of enforcing the restitution of
it. An executor, on the contrary, is respon-
sible for the property he lends, as is also a
father, because neither of them has the power
of enforcing a restitution of it.
CHAPTER. III.
OF ARBITRATION*
An arbitrator must possess the qualities
essential to a Kaaee. — If two persons a point
an arbitrator,! and express theirs atisfaction
with the award pronounced by him, such
award is valid ; because, as these persons
h*ve a power with respect to themselves,
they consequently possess a right to appoint
an arbitrator between them, and his award
is therefore binding upon them. This is
where the person so appointed possess the
qualifications of a Kazee ; for the stands
in that relation to the other two, it is there-
fore requisite that he be competent to dis-
charge the function of a Kazee.
He must not be a slave, an infidel, a slan-
dved or an infant. — IT is not lawful to
appoint a slave, or an infidel, or a person
that has been punished for slander, or an
infant, to act as an arbitrator ; because none
of these it competant to be a witness.
But }\P may be an unjust person. — Ir an
unjust ™*n b* appointed an arbitrator, it is
valid, because of the validity of his appoint-
in ~nt to the office of Kazee, as has been
already exr-la'ned.
Either party may retract from the give-
iration before the award — IF two men ap-
point another an arbitrator, still it is lawful
for either of them to recede before he gives
his award, because as the arbitrator has
received his powers from them he cannot
exert those powers without their consent.
The award, however, when giv;n, is binding
upon them, a» the power of the arbitrator
over them was established by their own
agreement.
On a reference to the Kazee, he must give
effect to the award, if approved. — Ir the
parties refer the award of the arbitrator to
the Kazee, and it be conformable to his
opinion, he must cause it to be carried into
execution, because it would be useless to
annul it, and then pass a similar decree, —
But if it he contrary to his opinion, he must
annul it, as the award of an arbitrator is not
binding on the Kazee, since he did not autho-
rize it.
Reference to an arbitrator is invalid in
cases of punishment or retaliation. — THE
ap ointment of an arbitrator is not valid in
cases where punishment or retaliation is
incurred, because the party has no power
over his own blood, and is therefore not
capable of assignirg it to others. Lawyers
have observed that the particular exception
of retaliation and punishment affords an
argument of the legality of arbitration in
all other coutested questions, such as divorce,
marriage, and the like. This is approved.
Still, however, there is a necessity for rati-
fication of the award in these cases by a
decree of the Kazee, in order that a control
*Arab. Tahkeem. f Arab. Hakam.
344
DUTIES OF THE KAZEE
[VOL. II.
being maintained ov.»r mank-nd, their pre
sumption may be restrained, for otherwise
men would continually settb their differences
by a private reference, without regard to the
LAW,
An arbitrator's award of a fine aga nst
the tribe of an offender is <»/ m effect. — IF,
in a case of homicide from error, the slayer
and the heir of thi deceased appoint an
arbitrator and he award a fi.ie of blood to
be paid by tha tribe of the slayer, such
award is of one effect ; in other words : the
heir is not entitle.i .o exa:t such line from
the triba in virtue of the award, for it has
no force over them, as they did not authorize
the arbitrator.
Nor against the offender himself, unless he
acknowledge the offence.— I? also, the arbi-
trator award the fine to be paid by the
slayer, the Kazee must annul it, as being
contrary to the LAW, which prescribes the
fine to be paid by the tribe ; — excepting,
however, where the fact is proved by the
confession of the slayer ; for in tint case the
tribe art not liable to the fine.
He may examine witness — An arbitrator
is empowered to hear the witnesses of the
plaintiff, and also to pass an award upon the
denial or acknowledment of the parties,
because this is agreeable to the LAW.
The varties, acknowledging an arbitrator's
decree cannot afterwards Detract from it
— Ir an arbitrator give information to the
Kazee of the acknowledgment of one of the
parties, or of the integrity of the witnesses,
at a time when both the parties continue to
adhere to his award, such information must
be credited, and the Kazee mu»t not after-
wards credit the denial of either of the
parties, as the arbitrator's authority still
continues unshaken.— If, on the other hand,
he give information to the Kaz.e related to
his award (that is, if the parties dispute con-
cerning his award, — one of them sayinp that
"it was to such or such effect," and the
other denying this, and the arbitrator inform
the Kazee that "he has award so and
so"), — his information must not be credited,
since in such case his authority no longer
endures,
Any award passed in favou~ of a parent,
child, or wife, is null —THE determination
of every person acting in the capacity of a
judge (whether he be a Kazee or an arbitra-
tor) in favour of his father, his mother, his
child, or his wife, is null and void, because
evidence in favour of any of thesj relations
being unlawful on account of the suspicion
which it suggests, a determination in their
favour is also unlawful, for the same reason.
— A determination, however, against any of
these relations is valid, because evidence
against them is accepted, since it is liable to
no suspicion.
Joint arbitrators must act conjunctively.—
IF two persons be appointed arbitrations, it
is incumbent upon them to act conjunctively
in giving a determination, as this is a matter
which requires wisdom and judgment.
Section.
Miscellaneous Cases relative to Judicial
Decssions.
No act can be performed him respect to
the unaer storey of a house, which may any
may atfect the building — In a house of which
the upper storey belongs to one man, and the
under storey to another, the proprietor of the
under storey is not entitled to drive in a nail,
or to make a window, without the permission
of the proprietor of the upper storey. — This
is the doctrine of Haneefa. The two dis-
ciples hold that the proprietor of the under
storey mav do any act whatever with respect
to it, provided injury result to the upper
storey. The same disagreement also subsis'
will regard to the proprietor of the upper
storey building upon that foundation. Some
of our lawyers remark that the doctrine
ascribed to the two disciples is only an ex-
planation of that of Haneefa, and that, in
reality, there exists no disagreement between
them.— Others again say that, according to
the two d sciples, there is a prefect freedom ;
— in other words, either of the proprietors is
at full liberty to do whatever act he pleases
with relation to his property ; for property,
in its very nature, implies a perfect freedom
with regard to it, restrictions upon it being
merely supervenient to another. Hence U
the detriment be only doubtfu), and not
inevitable, the proprietor cannot lawfully be
restrained from acting upon his own pro-
party. According to Haneefa, on the other
hand, there is restriction ; — in other words,
neither of the proprietors is premitted to do
any acts with regard to their resoective pro-
perty without the permission of the other,
because such acts affect a place with which
the right of another is connected, and that
right is sacred from any act of his, in the
same manner as the right oft mortgager or
a lessee —Besides, the freedom and absolute-
ness of the property to its owner is here
supervenient, since it depeng on the con-
sent of another : so long, therefore, as that
consent is doubtful, the original restriction
oparates. In these cases, moreover the
detriment is not eventual but is in some
degree certain ; since the driving in of a
nail or wedge, or the breaking of the wall to
make a window, tends to weaken the edifice,
whence these acts are prohibited.
A passage cannot be made into a private
lane.— lr there be a long lane, parallel to
which, either on the right or left, runs
another iong lane, not a thoroughfare (that
is, not open at both ends), it is not permitted
to any of the inhabitants of the first lane to
make a door to open into the second lane ;
because the object of making a door is to
obtained a passage to end fro ; and the second
lane in not free to the inhabitants of the first
since not being a thoroughfare, the right of
passage through it belongs only to the In
habitants of it. —Some have said that it is
perfectly lawful for any of the inhabitants
BOOK XX —CHAP. III.]
DUTIES OF THE KAZEE.
345
of the first lane to open a door into the
second ; because the opening of a door is
nothing more than the breaking of a wall
by its proprietor, which is lawful ; but that
the prohibition against passing: to and fro
nevertheless remains in force. The authentic
doctrine, however, is, that the opening of a
door, in such case, is unlawful ; because after
the door is opened it will be difficult to pre-
vent a continual thoroughfare ; and also,
because there is a possibility that after some
time the right of passage might be claimed
by the person who made the door, and the
very circumstance of the door might be
pleaded as a proof of his right. If, however,
the second lane be not long, but short, the
inhabitants of the first lane have a right to
open doors into it : because they have a
right of passage through it, since on account
of its shortness it is considered as a court,
in which all have a right of participating,
whence it is that they have all an equal claim
of Shaffa in case of the sale of any of the
houses in it.
An indefinite claim may be compounded. —
IF a person vaguely claim something belong-
ing to a house, and the proprietor of the
house deny his right to anvthing, but after-
wards compound with him for his c'aim, such
composition is valid ; for although the article
in dispute was not known, yet a composition
with a known article for one that is unknown
is lawful, according to our doctors, since as
the article compounded for merely drops, the
uncertainty concerning it can never create
strife ; — for uncertainty, in a matter which
drops, leaves no room for contention, as this
cannot occur but in cases of uncertainty
respecting things the delivery of which is
required.
Case of a claim fonnded on gift and
purchase. — IF • person claim a house in the
possession of another, on the plea -that " the
possessor had, at a former period, made a
gift of it to him," and upon being required
to produce evidence, should then say, "he
denied the gift, and I therefore bought the
house from him," and produce witnesses,
and they attest the purchase, but state the
date of it to be antecedent to the gift, such
testimony is not admissible, because of its
differing from the assertion of the claimant
with respect to the date of the deeds ;—
whereas, if they were to attest the purchase
as having been made posterior to the gift
their testimony would, in that case, be
admitted, because of its conformity to the
claimant's plea. If, on the other hand, he
plead a gift, and then bring witnesses to
prove the purchase previous to the gift,
without mentioning the denial of the cift
by the donor, in this instance also the
evidence is not admissible.-— This is men-
tioned in various copies of the Jama Sagheer ;
and the reason of it is that the claim of the
house, in virtue of a gift, is an acknow-
ledgment of Us being the property of the
giver ; but from which the claimant after- !
wards recedes by declaring that he had
purchased it prior to the gift ; which is a
contradiction ; it is otherwise in the former
case ; for there the purchase is declared to
be posterior to the gift ; and a declaration
to this effect, so far from denying the
property to have existed in the donor at
the time of the gift, is rather a confirmation
of it.
// the purchase of female slave be denied
by the purchaser, the master may cohabit with
her. — IF a person pos essed of a female slave
say to another, ''you purchased this slave
from me, and have not paid me the price.1'
and the other deny the sale, and the possessor
of the slave determine in his own mind to
drop the suit, and of consequence refrain
from any further contention withe other,
he may then lawfully cohabit with the, since
the denial of the purchaser annuls the sale
in the same manner as where both parties
deny it.
OBJECTION. - How can th^ sale be annulled
by the mere determination of the seller in
his own mind to relinquish the suit, since
no contracts can be annulled by the mere
determination on annual them ; whence it
is that, in a sale with an option, If the
possessor of the option determine to annul
it, still the annulment does not take place
immediately on the forming of such resolu-
tion ?
REPLY. — In the case in question the sale
does not become null merely by the deter-
mination, but because of the determination
being joined to a conduct that manifests
it, such as the detention of the slave in
the proprietor's possession, his carrying
her away from the place of contention to
his own house, and his using her an a ser-
vant.
In the receipt of money, the declaration of
the receiver must be credited with rxpect to
the quality— IF a person acknowledge that
he had received ten dirms from a Bother, but
afterwards assert that they were Zeyf, or
bad, in that sase his declaration must be
credited ; because bad dirms. although of
an inferior value, are nevertheless of the
species of dirms, whence if, in a Sirf sale, a
person take possession of bad ones in ex-
change for good, it is valid As, moreover,
a receipt of dirms is not restricted to good
ones, it does not follow, from his acknowledg-
ment of the seisin, that the dirms were
good ; and such being the case, his declara-
tion must be credited, because he denies the
receipt of good dirms, which is his right.—
It would be otherwise if he were to declare
that "he had received ten good DIRMS," or
that "he had received his right," or "the
price of his wares," or "a discharge of his
claims," and afterwards to allege that the
dirms were bad ; for in neither of these
cases would his declaration be credited ;
because in the first case he expressly ac-
knowledges the receipt of good dirms ; and
in the three following he makes such ac-
knowledgment by implication, and there-
fore his subsequent declaration to the coa-
346
DUTIES OF THE KAZEE.
[VOL. II.
trary, being considered as a prevarication, is
not credited.*
A creditor denying his debtor's acknow-
ledgement cannot afterward- substantiate his
claim but by proof, or the debtor's verification
— IF one person say to another, "I owe you
one thousand dinns," and the other reply,
'you do not owe me anything," but after-
wards, in the same meeting, say, ''you owe
me one thousand dirms ;" in that case he is
not entitled to anything unless he adduce
proof, or the debtor verify his assertion ;
because the debtor's acknowledgment was
virtually annulled by his denial ; and his
subsequent assertion of course becomes a
claim de novo, which therefore requires
either to be proved, or to be, verified by
the debtor. It is otherwise where a person
says to another, "you bought certain goods
from me/' and that other denies ; for he
might nevertheless afterwards, without
prevarication, confirm the declaration of
the person in question in the same meetinp ;
because in a contract of sale one of the
parties only cannot annul it ; in the same
manner as one of them is incapable of
making it. -The reason of this is that the
acknowledgment of a contract of sale is th«
right of the buyer and seller jointly, and
therefore the contract is not annulled by the
denial of the purchaser only; the confirma-
tion of the purchaser, therefcre, after his
denial, is valid, since his denial did not
occasion an annulment. — A person, on the
contrary, in whose favour an acknowledg-
ment is made, may of himself annul such
acknowledgment by a rejection of it ; and
his subsequent assertion corresponding with
the acknowledgment is not a corroboration
of it, because the acknowledgment did not
then exist, it having been virtually done
away by hit rejection of it.— Hence the
subsequent a.iser^pn is a clai n de n :>vo
which consequently require either proof by
witnesses, or the verification of the debtor.
In a claim for debt, tha evidence of the
debtor, proving a discharge, must be credited.
— IF a person make a claim upon another,
and that other declare that he never owed
him anything, and the plaintiff prove, by
witnesses, that the defendant owes him one
thousand dirms, and the defendant, on the
other hand, prove by witnesses that has
paid the same, in that case the evidence of
the defendant must be credited ; an J in the
same manner also, the evidence of the de
fendant must be credited, in case it tend to
establish his having obtained a releasement
:>r discharge of the claim — Ziffer maintains
that the evidence of the defendant must not
be credited, since pa>ment is a branch of
obligation, and the defendant having denied
* Here follows an account of the different
gradations of dirms from good to bad, which
is omitted in the translation, as it will
hereafter be fully explained in its proper
>tace.
the existence of the obligation a,t any period,
is therefore evidently gu Ity of prevarication.
Our doctors, on the other hand, argue that a
consistency with regard to the denial and the
proof is here poosible, because unjust debts
are sometimes paid to avoid litigation, and
releasements from them are likewise some-
times given. Sometimes, also, a defendant,
after denying the validity of the claim,
compounds with the plaintiff ; and in such
case he is bound to pay the composition,
notwithstanding the debt for which it was
made may have been unbest. — If the defen-
dant declare, "I owe you nothing," in that
case also his evidence, to the effect above
recited, is creditable, because of its perfect
conformity with the assertion that "he owes
him nothing," which evidently means at
that time, inasmuch as he proves that he
had afterwards paid it to him. — But if he
were to say, "I never cwed you anything,
and I do not know you," — the evidence he
might afterwards produce of his having
paid the debt, or of his having obtained a
rekasement from it, would not be credited ;
because the contradiction between his asser-
tion and the evidence cannot in this case be
reconciled, since no man enters into the
business of giving of receiving with one
of whom he has no knowledge. — Kadooree
remarks that in this case also the evidence
must be credited, because the contradiction
that subsist is not wholly irreconcileable.
inasmuch as women who are kept concealed
often transact business mediately through
others, without knowing the person with
whom the business is concluded ; and it also
often happens that men of rank, when a mob
assemble at their door and make a noise,
desire their agents to give them some money
to pacify them.
Case of a disputed purchase of a defective
slave. — IF a person declare that " he has
purchased a female slave from another,"
ind that other deny that he had ever sold
ler to him, and the purchaser having proved
lis assertion by witnesses, an additional
finger be discovered on the hand of the slave,
and the seller prove by evidence that the
purchaser had exempted him from responsi-
bility for every defect, in that case the testi-
mony of the seller must be rejected, since he
s evidently guilty of prevarication. This
s the doctrine of the Zahir Rawayet, It is
related, as an opinion of Aboo Yoosaf, that
he evidence of the seller must be credited,
Because of the analogy of this case to that
of debt, as before explained, in which it
was shown that there was a possibility of
reconciling the contradiction ; for a recon-
cilement of the contradiction is also possible
n this case, by supposing the seller to have ,
>een an agent for another, on which supposi-
ion the declaration of the proprietor, that
'he had not sold the slave," would have
>een true, and his subsequent plea, of having
>een exempted from a responsibility for de-
ects, would also have been valid. Thus the
pparent contradiction is capable of recon-
BOOK XX.— CHAP. IV.]
DUTIES OF THE KAZEE
3*7
cilement. The ground on which the Zahir
Rawayet proceeds is, the plea of having
been exempted from a warranty against de-
fects is an acknowledgment of the existence
of the sale, which he had before denied, and
hence it necessarily follows that he prevari-
cated. It is otherwise in the case of debt,
for in that case th • payment is no argument
of the respondent's acknowledging thi exist-
ence of it, since (as has bee'i before explained)
unjust debts are often paid to avoid strife.
^ A deea suspended, in its Affect, upon the
will of God. is null.— -If a person, having
acknowledged a debt to another, should sub
sciibeadeed to that effect, and at the con-
clusion of it insert the following sentence,
"Whosoever produces this dee, I of acknow
ledgment, and claims the thin? recited
therein, is proprietor thereof, if it please
GOD " or. if a person, having sold some-
thing to another, should at the end of the
b 11 of sale Insert the folbsving sentence,
"If any person shall hereafter claim the
property of the subject of the sale, in that
case I am answerably for the same, if it
please GOD, "—in b >th these cases the deeds
are of no effect ; whence, in the first case,
the arknowleJgment is null, and in the
second, the sale is invalid. The two disci-
ples hold that in the former case the debt i3
binding, and in the later case the sale is
valid ; because in^their op n ion the condition
"if it please GOD" applies, not to the general
purport of the deed, but mere'y (in the
former instance) to the expression, "Who-
ever produces this deed of acknowledgment,"
and so forty.— or (in the latter) to the ex-
pression, "If any person shall hereafter
claim/' and so forth : because the design, in
drawing up deeds of acknowledgment and
of sale if merely to corroborate and confirm
the act ; and if the expression in question
had a reference to the whole deed, this design
would be defeated. Haneefa, on the con-
trary, being of opinion that this condition
applies to the whole of the deed, therefore
holds to be invalid * It is to be observed,
that if a blank be left at the end of a bill of
sale or deed of acknowledgment, and the
words "if it please GOD" be afterwards
written, our lawyers are of opinion that
the clause does not affect the bill or the
deed, because the blank, in either case,
marks the conclusion.
CHAPTER IV.
OF THE DECREES OF A KAZEE RELATIVE TO
INHERITANCE.
Case of the widow of a Christian claming
her inheritance after haying embraced the
faith — IF a Christian die, and his widow
The arguments both of the two disciples
and of Haneefa are more fully detailed in the
original ; but as they relate to principles
proper to the Arabic language, the trans-
lator has given only the substance of them.
appear before the Kazee as a Musslima, and
declare that "she had become so since the
death of her husband," and the heirs declare
that she had become so before his death,
their declaration must be credited. Ziffer is
of opinion that the declaration of the wiJow
must be credited ; because the change of
her religion, as being a supervenient cir-
cumstance, must be referred to the neareU
possible period The arguments of our
doctors are, that as the cause of her exclu-
sion from inheritance, founded on difference
of faith, exists m the present.it must there-
fore be considered an extant in the preterite,
from the argument of the present ; —in the
same manner as an argument is derived
from the present, in a case relative to
the running of the watercourse of a mill ;
— that is to .say, if a dispute arise between
the lessor and lessee of a water-mill, the
former asserting that the stream had run
from the perio.1 of the lease till the present
without interruption, and the latter denying
this, in that case, if the stream be running
at the period of contention, the assertion of
the lessor must be credited, but if otherwise,
that of the lessee. As, moreover, an argu-
ment drawn from apparent circumstances is
pro jf sufficient to set aside the claim of a
plaintiff, it follows that the argument in
question suffices, on behalf of the heirs, to
defeat the plea of the widow. With re-
spect to what Ziffer objects, it is to be
observed that he has regard to the argument
of apparent circumstances, for establishing
the claim of the wife upon her husband's
estate, and an argument of this nature does
not suffice as proof to establish a right
although it would suffice to annul one.
Case of the Christian wido& of a Mussul-
man claiming under thd same circumstance.
^-!F a Mussulman, whose wife wa* once a
Christian should die, and the widow appear
before the Kazee as a Musslima and declare
that she had embraced the faith prior to the
death of her husband, and the heirs assert
the contrary, in this case also the assertion
of the heirs must be credited, for no regard
is paid, in this instance, to any argument
derived from present circumstances (as in
the case of the water-mill), since such an
argument is not capable of establishing
claim, and the widow is here the claimant
of her husband's property With respect to
the heirs on the contrary, they are repel-
lants of the claim ; and probability is an
argument in their favour, since the Isiamism
of the widow is supervenient, and is there-
fore an argument against her.
A trustee on the decease of his principal,
must pay the deposit to whomsoever he ac-
knowledges as h«is.— IF a person who had
deposited four thousand dirms in the hands
of another should die, and the trustee ac-
knowledge a certain person to be the son ot
the deceased and his true and only heir, h«
is bound to pay to that person the fout
thousand dirms which he held in trust .
because in this case he makes an acknc -v •
348
DUTIES OF THE KAZEE
[VOL. II.
ledgment that what he retains in trust, is
the right of the heir, and consequently it is
the same as if, during the life of the person
from whom he received the deposit, he had
acknowledged that it was his right. It is
otherwise where a trustee makes an ac-
knowledgment that a certain person has
been appointed an agent for seisin by the
proprietor, or that such an one has purchased
the deposit from the proprietor ; for in that
case he cou'd not be desired to deliver up
the deposit, because this acknowledgment
proves the actual existence of the depositor,
since it shows him to be still living. His
acknowledgment, therefore, of the agency
or the purchase, is an acknowledgment
afferting the property of another : but this
cannot be objected to an acknowledgment
made by a trustee after the death of the
proprietor, for upon that event the property
devolves upon the heirs. It is otherwise
where a debtor acknowledges that a certain
person has been appointed dgent for seisin
by his creditor ; for the acknowledgment
here relates to his own property, inasmuch
as he pays the debt by means of his own
property, and the agent receives the same ;
and hence, after such acknowledment, he
becomes bound to pay it. If the trustee,
after manking an acknowledgment in favour
of the son and heir, in the manner above
related, should again make an acknowledg-
ment in favour of another son, and the one
first acknowledged deny the same, in that case
he [the trustee] is bound to pay the whole
to that one ; because after such acknowledg-
ment became binding (in the manner already
exp.'a ned) his tenure of the property was
no longer valid ; and hence his subsequent
acknowledgment in favour of the other son
is an acknowledgment with respect to the
absolute property of the first son, and is con-
sequently invalid. — in the same manner as
helds where the first son is notorious, — and
also, because, as at the time when he [the
trustee] made the acknowledgment in favour
of the first son, no other son appeared to
assert his right, the acknowledgment was
therefore valid : but as the first son is pre-
sent to deny the kacnowledgment afterwards
made in favour of the second son that
acknowledgment is therefore invalid.
In the division of an estate, the Kazee must
not demand any security from the heirs or
creditors in behalf of those who may be lib sent.
— WHEN a division is made of the effects of
a deceased person between his heirs and
creditors, the Kazee must not require security
either from the heirs or the creditors, as a
precaution in case of the appearance of more
heirs or more creditors, for this would be op-
pression, as being a deviation from ccmmon
practice. This is according to Haneefa. The
two disciples maintain that he must require
security. This disagreement relates to a case
where the debt of the creditors and the right
of inheritance is proved by evidence, and
where they severally declare that they know
of no other debtors or heirs than themselves.
The reasoning adduced by the two disciples
in support of their opinion is, that the Kazee
is the conservator of the rights of the absent ;
and it is most probable that some of the
creditors or heirs may be absent, since death
is often sudden, and may happen at a time
when they are not all present ; and as the
taking of security is on this account an
advisable precaution, the Kazee must there-
fore take this precaution, in the same manner
as he exacts security when he delivers a
trove, or a fugitive slave, to the owner, or
when he awards maintenance to a wife from
the estate of her absent husband. The argu-
ments of Haneefa upon this point are two-
fold. FIRST, the right of those that are
present is established with certainty in case
of there being no absent heirs, and is appa-
rently established in the mean time even if
there be absent heirs ; and as it is incumbent
on the Kazee to act according to what is
apparent to him, he must not suspend his
proceedings in favour of those that are pre-
sent, by exacting security for the rights of
the absent, whose actual existence is uncer-
tain ; — in the same manner as where a person
establishes t e purchase of any thing in the
hands of another, — or a debt due to him by
a slave ; that is, if a person prove a right by
purchase to a thing in the possession of
another, it is the duty of the Kazee imme-
diately to order it to be delivered to him
without exacting security although another
may eventually appear and claim it in virtue
of a prior purchase ; and in the same man-
ner, if a person prove a debt due to him by
a slave, the Kazee must order the slave to be
sold, the end that payment may be made
from the price, without exacting any security,
although there be a possibility of another
creditor afterwards appearing. SECONDLY,
the principal is unknown, and security is
invalid if the principal be not clearly pointed
out,-— as where, for instance, a person says to
several debtors, "I am bail for one of you."
in which case the security is invalid, becaase
the actual principal is not signified, notwith-
standing there be a certainty of his existence,
In the case in question, therefore, the secu-
rity is invalid it fortiori, since even the ex-
istence of the principal is uncertain. It is
otherwise in the case of decreeing mainte-
nance to the wife of an absentee from the
effects of her husband, because her right
being known and established the person in
favour of whom the security is given is not
uncertain. With respect to the case of a
fugitive slave, or a trove property, there are
two traditions. Concerning those, however,
there is also a difference of opinion. Some
have said that if the Kazee give a trove pro-
perty to the proprietor, on his describing the
marks, or a fugitive slave to his master, on
the acknowledgment of the slave that "the
said person is his master," it is incumbent
upon him, in either case ; to take security.
And all our doctors coincide in this opinion ;
because the right of the receiver is not
proved, whence it is in the power of the
BOOK XX. -CHAP. IV.]
DUTIES OF THE KAZEE
349
Kazee, if he please, to withhold the slave
from the person in question altogether.
In the joint inheritance of a property held
by a third person, the present heir receives
his share ; but not security is required in
behalf of him whi is absent —I? a person
prove by evidence, that a house then in the
possession of another had been left between
him and his brother, who is absent, in that
case one half of the hou*e m ist be given
to him and th? other half left in the hands
of the person who his possession ; and no
security must be exacted fro.n him. This
is according to Haneefa. The two disciples
are of opinion, that if thi possessor deny the
right, thi share of the absent brother must
be put into the hands of a trustee until his
return ; but if he acknowledge the ri^ht it
must then be left in his possession ; — for they
argue that a denier, as being an opponent,
cannot be trusted with the property ; whereas
it may be entrusted to an acknowlndger, as
he is a friend and confident. The argument
of Haneefa is that the decree of the Kazee,
awarding that "the deceased left the house
to his heirs," is a decree merely in favour of
the deceased ; for inheritance cannot take
place unless the property of the person
through whom it devojves be proved ; and
as there is a probability of the deceased
having constituted the possessor trustee, it
follows that the house cannot be taken from
him ; as holds in the case of his acknow-
ledging it. In regard to his denial, it is
vistually annulled by the decree of the
Kazee ; and their is a probability of his not
denying the right again, because the dispute
in question has become known both to himself
and the Kazee. If the claim, in the case in
question, relate to moveable property, some
have said that the article is to be taken from
the possessor, according to all our doctors ;
because there is a necessity for the conserva-
tion of it ; and this is answered in the best
manner by the taking of it from the possessor,
who, on account of his denial of his own use,
of the other, may convert it to his own use,
either from opposition, or from a belief of
its being his own right : but when tne Kazee
takes it from him, and deposits it with a
trustee, the probabity is that the trustee,
from his integrity, will take care of it. The
case is different with respect to immoveable
property, for that is preserved in itself ;
whence it is that an executor, although he
have power to sell the moveables of an
absent heir, arrived at the age of miturity.
yet cannot do so with regard to his immove-
able property. Others, however have said
that the same difference of opinion subsists
with regard to moveable property. It is to be
spect to immoveable property. It is to be
observed that opinion of Haneefa, .that
the half ought to be left in the hands of the
possessor, is the most authentic, because
there is a necessity for conservation, and
his is answered in the best possible manner
by putting it in the hands of one who is re-
sponsible in case of its loss, since it it likely
that he wil be most careful of it The
possessor, moreover, is responsible in conse-
quence of his denial, whereas a trustee is
not. With respect to what is further iaid,
that "no security must be exacted." it pro-
ceeds on this principle, that the exaction of
bail is an occasion of litigation and conten-
tion ; and it is the duty of the Kazee to
prevent these,— iot to excite them. If, in
the ca*e in question, the absentee return
there is no necessity for again producing
evidence, because he is entitled to the half
in virtue of the K*z;e's decree in favour of
the heir that was present ; for any one of the
heirs of a deceased person stands as litigant
on the part of all the others, with resp-ct to
any thing due to or by the deceaied, whether
it be debt or substance ; since the decree of
the Kizee, in such case, is in reality either
in favor of or against the deceased ; and
any one of the heirs may stand as his repre-
sentative with respect to such decree. It is
otherwise with respect to taking possession
of the portion due to another from the estate
of a person deceased ; that is to sjy, a part
of the heirs, although they be litigants on
behalf of another heir, cannot, however,
take possession of his portion on his behalf,
because a person, in taking possession, acts
for himself, and is therefore incapable of
acting in it. as agent, for another. Hence
the person present is not entitled to receive
any other portion than his own ; in the same
manner as wherj an heir claims a debt
due to the deceased, and the Kazee passes a
d 'cree in his favour ; in which case the heir,
although he stood as litigant in behalf of the
other heir*, is yet not entitled to receive
their shares of the debt.
OBJECTION — If one heir be litigant in
behalf ^f the other, it would follow that each
creditor is entitled to have recourse to him
for payment of his demand ; whereas, ac-
cording to law, each is only obliged to pay
his own share
REPLY. — The creditors are entitled to have
recourse to one of several heirs only in a case
where all the effects are in the hands of that
heir. This is what is stated in the Jama
Kabeer ; and the reason of it is that although
any one of the heirs may act as p'amtiff in
a cause on behalf of the others, yet he can-
not act as defendant on their behalf, unless
the whole of the effects be in his possession.
An alms-gift of Mai includes all property
subject to Zakat.—ir a person say, "I devote
my property in alms to the distree eJ," in
that case the word property, thus generally
used, is construed to mean that part of ha
property which is subject to Zakat ; whereas,
if a person say, "I bequeath the third of my
property." the term property is in that case
construed to apply to his property of every
description.— This distinction is according to
a favourable construction. — Analogy would
suggest, in the* former instance also, that the
whole property is understood ; and this
topinion has been followed by Ziffer ; because
he term property [Mai] applies to and ia-
350
DUTIES OF 'I HE KAZEE
[VOL. II
eludes property of everv description, in a
case of alms-gift, in the same manner as in
a case of bequest. The reasons for a mire
favourable construction of rh.2 la A/ in this
particular are twofold. — FIRST, anoMigUion
imposed by a person upon himself is analo-
gous to an obligation imposed by Goo ; in
other words, if a person impose any obliga
tion on himself, it is valid only with res?) ?c
to those articles concerning which G:>D has
imposed obligations upon mankind : an obli-
gation of alms, therefore, imposed by a per-
son upon himself, tak^s effect only with
respect to such property as GOD has imposed
alms upon. — Bequest, on th<! contrary, re-
sembles in'i ritance, as the legate* succeed,
to the property of the deceased in the manner
of an heir ; and hence a bequest of broperty
is not restricted to any particular description
of property. — SECONDLY, from his mode of
expression it is reasonable to suppose that
he undertakes to bestow in alms that part of
his property only which is superflou*, and
beyond the occasion of his wonts ; and this
is the part on which Zakat is imposed. Be-
quest, on the contrary, as it takes pla^e at a
time when the testator is free fro n want, is
considered as extending to the whole of his
property —It is to be observed that the
speaker's declaration, "I devote my property
in alms, &c ," includes also his Ashooree
lands, according to Aboo Yoosaf, because
land^ofthis description is subject to the ob-
ligation of alms, agreeably to his tends, that,
in tithe, the consideration of alms is pre-
dominant.— Accord ing to Mohammed, on the
contrary, his Ashooree land is not included,
because, agreeably to his tenets, the Con-
sideration of support to the state is pre«
dominant in tithe. — His Khirajee, or tribute
lands, are, however, not included, according
to all our doctors, because tribute is designed
purely as a support to the state, and alms
arc no consideration in it.
Case of an almt-gift of milk.— IF a person
say, "I devote my possessions [Milk] in alms
to the distressed," there is in that case a
difference of opinion Same have said thit
this must be construed to mean the whole of
his property ; because the term here used
[Milk] is of a more general nature than the
term Mai used in the former case :— the
occasion, moreover, of restricting the appli-
cation, in that instance, to such property as
is subject to Zakat, is purely because of Mai
being the term used on that occasion in the
KORAN ; and such boing the case, the term
Milk must therefore be explained in its com-
mon acceptation. Others, again, have said
that the terms Milk and Mil imnort the ™m?
thing in effect ; and this is the better opinion;
since both terms imply that part of his pro-
perty which exceeds his wants, as was before
mentioned ; and that is the part of his pro-
perty subject to Zakat.— If, however, a per
spnhave no other prop rty besides what he
obliges himself to bestow in alms, he must
in that case reserve a sufficiency for hi* own
•insistence, and bestow the remainder ; and
afterwards, upon his acquiring more pro-
perty, bestow a part of it adequate to what
he had before reserved. With respect to a
sufficiency for subsistence, Mohammed has
not determined ths quantity, because of the
different conditions of men. Some have said
that a pers ?n is to reserve only one day's
subsistence, in case of his being an artificer
or labourer : one month's subsistence, incase
he possess houses and shops let out upon
lease ; one year's subsistance, in case he
possess immoveable property of lands ; and
so on — in proportion to the length of time
of receiving the income of his property ; — and
on this principle a merchant is to reserve as
much a* miy suffice till thj probable return
of his property.
The acts of an executor are va*id without
any formal notification of his appointment.
— IF a person be appointed executor to
another, and he be not informed of that cir-
cumstance, but nevertheless sell some part of
the effects of the deceased, the appointment
becomes confirmed, and the sale is valid ;
whereas sale l)y an agent, on the contrary, is
not valid, unless he be informed of hU
agency — This distinction is according to the
Zahir Riwavat. AboD Yoo^af is of opinion
that the sde by the executor Is also invalid,
because an executor is, in fact, a person
appointed to act as agent after the death
of the testator , and must therefore be con-
sidered in the same light with an agent
before death — The reason of the distinction
as stated in the Zahir Rawayat, is that the
office of an executor is to represent, not to
act as agent ; for it refers to a period when
the tppoinment of agency would he nuli.
The acts of an executor, therefore, do not
rest upon his knowledge of the testator's
will any more than the acts of an heir; — in
other words, if an heir were to sell some
part of the effects of the de:eased, not
knowing irnt he was dead, the sile would be
good ; and so also of sale by an executor
Agency, on the contrary, is merely a delega-
tion, since in the case of agency the power
and authority of the constituent still endure :
the acts of an agent, therefore, rest upon his
knowledge of his appointment. — The ground
of this is, that in resting the acts of agents
upon a knowledge of their appointments,
there is no injury to the constituent, since
he is himself capable of performing such
acts : whereas, if the acts of an executor
were suspended on his knowledge of his
appointment, an injury would result to his
constituent, who is himself incapable of
performing such acts.
An agent's appointment may be established
by any casual information. — IF a man ap-
point another his agent, and, a person
having brought him intelligence of this,*
•By a person is here to be understood a
person not deputed by the constituent, but
one who having casually beared of the ap-
pointment brings information of it to the
agent.
BOOK XX.-CHAP. 1V.J
he immediately, upon the receipt of it. per-
form some act (such as sale, for instance),
in that case the act is valid, whether the
informant be free or a slave, of mature age
or otherwise, an unjust or just man : because
a simple information of his appointment
establishes hu riyht to act, although it be no
way binding upon him.
But his dismission cannot be established
unless duly attested. —THE dismission of an
agent is not established until it be attested
to the agent by two persons of unknown
character, or by one just man. This is the
doctrine of Haneefa. The two disciples
have said that the law, in this case, is the
same as in the preceding : for as the dismis-
sion and appointment of agents are concerns
of frequent occurrence, the notification of one
person is therefore sufficient. The argu-
ments of Haneefa are that the simple noti-
fication of dismission is binding, as being a
cause of the agent's desisting from action,
and inducing responsibility for the property
in his possession. The notification in ques-
tion, therefore, is in one shape evidence, and
consequently requires one of the two con-
ditions of evinence namely, number [of the
witnesses] or integrity ; in other words, it
requires to be attested by one (just person, or
by two persons of unknown cahracter. It is
otherwise with respect to the ratification of
an appointment of agency, since that is no
way bindii g, as has been already mentioned.
— It is also otherwise where the dismission is
notified by a messenger from the constituent,
because the word of a message- bearer is
equivalent to that of the sender of it, from
necessity, and in that case, therefore, the
attestation of one just men or two unknown
men is not required. — The same difference of
opinion obtains tn cases of information con-
veyed to a master of the crime of his slave,
— to the Shafee of the sale of a house, — to a
virgin of her marriage,— or to Mussulman
converts in a hostile country, who have not
yet taken refuge in the Mussulman territory,
of particular ordinances in regard to reli-
gion. Thus if an unjust [person inform a
master that a particular slave belonging to
him had committed a crime, and the master
afterwards sell or emancipate the said slave,
it is not in that case incumbent upon him to
pay the atonement, unless the notification of
the crime be attested by one just man ; or by
two men of unknown character, according to
Haneefa : contrary to the opinion of the two
disciples. — In the same manner also, if an
unjust person notify the sale of a house to
the Shafee, or person having the rigt of
per-emption over it, and the Shafee should
not thereupon put in his claim of Shiffa,
still, according to Haneefa, his right is not
avoided ; whereas, according to the two
disciples,, it is forfeited. So also, if an
unjust person notify her marriage to a
virgin, and she thereupon remain silent
such silence, according to Haneefa, is not an
assent ; but according to the two disciples it
is. — So likewise, if an un just man iafor man
DUTIES OF THE KAZEE
351
absent Mussulman of new ordinances in
respect to religion, an^ he should not con-
form accordingly, Haneefa holds that he
is not in that case guilty of any offence ;
whereas the two disciples are of opinior. that
he is.
AKazee, or his Ameen are not liable for
any loss which may be incurred to the pre-
juaice o/ another in selling on article to
satisfy creditors.— In a Kazee, or Ameen
apponinted by him, sell the slave of a certain
person, in order to discharge the demands
of his creditors, and the money, after the
receipt, be lost or destroyed in the hands of
the Kazee, or his Ameen, and the slave be
then proved to have been the property of
some other person, in that case neither the
Kazee nor his Ameen is responsible for the
loss ; because if Kazees were subject to such
responsibility, no one would accept of the ap-
pointment: and the rights of the people would
consequently be destryed. — The Kazee,
therefore, not being responsible for the loss,
the purchaser is entitled to an indemnifica-
tion from the creditors on whose account the
sale was made, because of the impractica-
bility of his being indemnified by the party
with uhom he made bargain — In the
same manner as where an incapable infant*
or an inhibited slave appoints an agent for
sale, who accordingly sails something on his
behalf, and, the price being lost after he
had received it, a right to the thing sold is
proved by another ; for in that case the claim
is made on the constituent, and not the agent,
although he be the party with whom the
bargain was made.
// the loss be incurred bv an executor, act-
ing under the Kazee s order*, the executor is
indemnified by the creditors — IF a Kazee
command an executor, whom he himself had,
appointed, ro sell a slave to satisfy the
creditois of a deceased peison, and the exe-
cutor, in obedience to this order, accordingly
sell the slave, and the slave atterwarcis prove
the right c-f another, or die previous to his
being delivered to the purchaser, and the
price in the mean time be lost after it had
been received by the executor, — the purchaser
must in that case receive an indemnification
from the executor, not from the Kazee ; be-
cause, having been appointed by the Kazee
to act as executor to the deceased, he is
therefore a representative of the deceased,
and not the Kazee ; and hence, in the
same manner as the deceased would have been
responsible under such circumstances, in
case he had himself made the sale during his
lifetime, so also is the executor for the sale
made after his death. The purchaser, there-
fore, is entitled to exact the price from the
executor ; and he, again, is entitled to in-
demnify himself from the creditors, since he
acted in the business of the sale on their
behalf. — if. however, any more property of
* Meaning an infant so young as to be
incapable of acting for himself.
352
DUTIES OF THE KAZEE.
[VOL. II.
the deceased be afterwards discovered, the
creditors are entitled to receive from it the
payment of their debts, which are still held
to remain in force.— Lawyers have also said
that the creditors are, on the r part, entitled
to receive an indemnification from the estate
for the compensition they made through the
executor, to the purchaser, since they in-
curred that oss in behalf of the deceased.
And an «n/ant heir stands in the same per
dicament with a creditor in this particular.
— An intant heir, on whose account any
thing is sold from the estate of a deceased
person, is considered in the light of acre-
ditor ; in other words, if an infant heir stand
in need of Felling something, and the exe-
cutor accordingly make sue i sale for him,
and the subject of the sale afterwards prove
the right of another,-— in that case the pur-
chaser if entitled to a compensation from the
executor, and the executor from the beir —
If, on the ether hand, the Ameen of the
Kazee sell any thing in behalf of an heir
which afterwards proves the i ight of an-
other : the proprietor is in that case entitled
to receive a compensation directly from the
heir, provided he be an adult : but if the
heir be on infant, the Kazee must appoint a
person for the discharge of the debt from his
property.
Section.
Any person may execute a puniehment by
the Kazee's direction.— IF a Kazees say to a
person, "I have sentenced a certain man^to
be stoned ; do you therefore stone him" —
or, "I have sentenced such a man to have
his hand cut off; do you therefore cut it
off ;"— or, " I have sentenced this person to
be scourged ; do you therefore scourge him:"
— it is lawful for that person to act according
to the Kazee's orders,— This is the doctrine
of the Zahir Rawayet.— It is rela-ed of Mo-
hammed, that he receded from this doctrine,
and gave it as his opinion that the Kazee's
directions, as here stated, are not to be
obeyed unless his sentence be attested by
one just mtn ; because there is a possibility
of his being in an error ; and if that should
appear after the performance of any of these
acts, it would be impossible to repair the injury
thereby occasioned. From this it would ap-
pear that the letter of one Kazee to another
are not valid:— and our modern doctors
greatly approve of this opinion, because
many Kazees of the present age are loose
and irregular : they; however, admit the
validity of letters from one Kazee [to another
on the ground of necessity. — Th? arguments
of the Zahir Rawayet upon this point are
twofold.— FIRST the Kazee here gives infor-
mation of a matter which he is competent to
order ; because it was in his power to have
ardered the execution of the sentence imme-
diately ; hence, as he is liable to no suspicion,
he ought to be credited. — SECONDLY, obe-
dience to a magistrate m authority, such as
the Kazee, |is declared to be an incumbent
duty : and as obedience to him is manifested
in a belief of his word, it is therefore incum-
bent to believe him,— Besides, Imam Aboo
Mansoor Matirady has said, "If a Kazee be
learned and just, believe and obey him, as
there is than no reason to suspect him. — If,
on the other hand, he be just but ignorant,
it is then requisite to make enquiry of him
concerning the case ; and if, after a full
investigation, it shall appear that this sen-
tence was legally founded, in that case (and
not otherwise) he must be believed.— If, on
the contraiy, he be learned but unjust in his
conduct, or ignorant and unjust, his orders
must not be obeyed, unless the person to
whom he addresses htmself discover the rea-
son that prompted them."
Case of a disputed decree, after a Kazee's
dismission from his office.— Iv a dismissed
Kazee say to a person, " I have taken one
thousand dirms from you, and paid it to
another, according to a decree which I passed
to that effect ;" and the person in question
deny this, and assert that the Kazee had
taken it from him unjustly, still *he decla-
ration of the Kazee must be credited, and
consequently he is not responsible for the
said sum* In the same manner also, if a
dismissed Kazee say to a person, "1 passed a
just sentence of amputation against you," and
the other assert that it was unjust, the word
of the Kazee must be credited. The law here
proceeds en the supposition that in both these
cases the persons acknowledge that the de-
crees wjre passed at a time when he was
actually Kazee; and the reason of it is, that
after such acknowledgment on their part,
probability is an argument in favour of the
Kazee : tx cause the probability is that no
Kazee will pass an unjust decree. Neither
is it necessary to exact an oath from the
Kazee in either of these cases, because an
oath is never put to a Kazee, and both the
persons in question acknowledge that he was
actually Kazee when he passed these decrees.
—It is to be observed that if the person who,
in the first case, by order of the Kazee, took
the money, or who, m the second case, cut
off the;5, hand, — should severally declare that
th*»y had done so by order of the Kazee, they
are not responsible for the consequences, since
the Kazee was in office when, he gave these
orders, and the restitution of the property
to its owner was an approved act on the part
of the Kazee, in the same manner as if he
had made the restitution in the presence of
the defendant —If, on the other hand, the
pei son assert that the Kazee had issued such
order^ either antecedent to his appointment
or after his dismission, then also the decla-
ration of the Kazee must be credited, because
he has referred the decree to a period which
exempts him from responsibility. His decla-
ration, therefore, is credited : in the same
manner as where a person subject to periodical
madness at fixed and certain times, having
divorced his wife or en arcipated his slave,
afterwards declare that "he did the?e during
his madness;"— which is credited ; whence
the divorce or emancipation are rendered
XXL-CHAP. L]
EVIDENCE
353
void. — In this case however, if the execu-
t oner of amputation, or the receiver of
the money, acknowledge these deeds, they
become resDonsible for them, because they
themselves acknowledge the performance of
acts, which induce responsibility, since the
authority under which they acted is doubt-
ful ; for the assertion of the Kazee is credited
in these instances merely to procure an ex-
emption to himself from responsibility and
not to procure it to others. It is otherwise
in the first case, where these acts are allowed
to have been performed in virtue of an order,
from him when he was actually Kazee —AH
this proceeds on a supposition that the money
no longer remains in the hands of the person
who had received it in virtue of the Kazee's
decree ; for if the money be still in the pos-
session of the receiver, and he coincide with
the Kazee concerning the amount, it must in
this case be taken from him, whether the
person from whom it was originally taken
confirm the Kazee's allegation, that "he had
paid the money to that person whilst he was
in office," or whether he plead that he [the
Kazee] had taken and -paid it whilst he was
not in oifice ; because as the receiver here in
fact acknowledges that the money had for-
m*rly been in the possession of t'lis person,
his plea of having become proprietor of the
money cannot be Admitted but u >on proof ;
and the mere allegation of the dismissed
Kazee is not proof, since after dismission he
becomes as a common per on
BOOK XXI.
OF SHAHADIT, OR EVIDENCE.
Chap I.-— Introductory.
Chap. 11.— Of the Acceptance and Re-
jection of Evidence.
Chap. III.— Of the Disagreement of
Witnesses in their T. stimony.
Chap IV— Of Evidence relative to
Inheritance.
Chap. V.— Of ^e Attestation of Evidence.
CHAPTER I.
Evidence is incumbent upon the requisition
of the party concerned — IT is incumbent*
upon witness to beir testimony, nor is it
lawful for them to conceal it, when the party
concerned demands it from them ; because
GOD says, in the KORAN, "LET NOT WIT-
NEESSES WITHHOLD THEIR TESTIMONY WHEN
IT IS DEMANDED FROM THEM;' '—and also.
"CONCEAL NOT YOUR TESTIMONY, FOR WHO-
EVER CONCEALS HIS TESTIMONY IS AN OF-
FENDER."— The requisition of the party,
*Arab. Farz ; meaning an ordained duty,
and therefore indispensable.
however, is a condition ; because the deliverv
of testimony is the right of the party, and
therefore rests upon his requisition of it, as
is the case with respect to all other rights.
But it is not obligatory in a case inducing
corporal punishment. — IN cases inducing
corporal punishment, witnesses are at liberty
either to giv.* or withhold their testimony.
as they please, because in such case they are
distracted between two laudable actions ;
namely, the establishment of the punish-
ment, and the preservation of the criminal's
character : the concealment of vice is, more-
over, preferable ; because the Prophet said
to a person that ha i borne testimony,
''Verily it would have been better for you,
if you had concealed it" — and also, because
he elsewhere said, "Whoever conceals the
vices of his brother MUSSULMAN shall have
a veil drawn over h.s own crimes in the two
worlds by GOD."— Besides, it has been incul-
cated ooth by the Prophet and his companions
as commendable to assist in the prevention
of corporal punishment; and this is an
evident argument for the concealment of
such evidence as tends to establish it
Unless it ennolve pr> perty, when the fact
must be stated n such a way *s may nut
occasion punishment. — IT is incumbent, how-
•ver, in the case of theft, to bear evidence to
:he property, by testifying tint "a certain
person took such property," in order to
preserve the right of the proprietor; but the
word taken must be used instead of stolen,
to the end that the crime may be kept
concealed : besides, if the word stolen were
used, the thief would be rendered liable to
amputation ; and as, where amputation is
incurred, there is no responsibility for the
property, the proprietor's right would be
iescroyed
The evidence required in whoredom is that
of four men. EVIDENCE is of several kinds,
is that of four men, as has been ordained in
the KORAN ; and the testimony of a woman
in such case is not admitted ; because Zih; a
says, "in the tune of the Prophet and his
two immediate successors it was an invariable
rule to exclude the evidence of women in all
case* inducing punishment or retaliation ;"
and also, because the testimony of women
involves a degree of doubt, as it is merely a
substitute for evidence, being accepted only
where the testimony of men cannot be had ;
and therefore it is not admitted in any matter
liable to drop from the existence of a doubt
In other criminal cases, two men — THE
evidence required in other criminal cases is
that of two men, according to the text of the
KORAN ; and the testimony of women is not
admitted, on the strength of the tradition of
Zihra above quoted. .
And in all other matters, two men. or OM
man and two women.— In all other cases thi
evidence required is that of two men, or ol
one man and two women, whether the cas«
relate to property, or to other rights, such ai
marriage, divorce, agency, executorship, 01
354
EVIDENCE
[VOL. II
the like Shafci has said thit the evidence
of one man and two women cannot be
property, or its dependencies, such as hire,
admitted, excepting in cases thu relating to
bail, and so forth ; because the evidence of
women is originally inadmissible on account
of their defect of understanding, their want
of memory, and incapicity of governing,
whence it is that their evidence is not ad-
mitted in criminal cases
OBJECTION.— Since, according to Shafei,
the evidence of women is originally invalid,
it would f )l!ow that their evidence alone is
not admissible even in a case of property ;
whereas the evidence of four women alone
is, in his opinion, admissible in such case.
REPLY --The evidence of four alone is
necessarily admissible in cases of property,
because of their frequent £o:currence '.—con-
trary to the mode of proceeding with respe* t
to marriage (for instance), which being a
matter of greater importa ice and more rare
occurrence than mere matters of property,
cannot therefore be classe with them.
THE reasoning of our doctors is %that the
evidence of women is originally valid « be-
cause evidence is founded upon three cir-
cumstances, namely, sight, memory, and a
capability of communication ; for by means
of the first the witness acquires knowledge ;
by means of the second he retains such
knowledge ; and by means of the third he
is enabled to impart to the Kazee ; and all
these three circumstances exist in a woman
(whence it is that her communication of a
tradition or of a message is valid) ; and with
respect to their want of memory, it is capable
of remedy by the junction of another ; that
is, by substituting two women in the room
of one man ; and the defect of memory being
thus supplied, there remains only the doubt
of substitution ; whence it is that their evi-
dence is not admitted in any matter liable to
drop from the existence of a doubt, namely,
retaliation or punishment : in opposition to
marriage, and so forth, as those may be proved
notwithstanding a doubt, whence the evidence
of women is admitted in those instances.
OBJECTION. — As the evidence of two women
is admitted in the roo.n of that of one man,
it would follow that the evidence of four
women alone ought to be admitted in cases
of property and other rights ; whereas it is
otherwise
REPLY. — Such is the suggestion of analogy.
The evidence of four women aione, however,
is not accepted (contrary to what analogy
would suggest), because if it were, there
would be frequent occasions for their ap-
pearance in public, in order to give evi-
dence ; whereas their privacy is the most
laudable
The evidence of women alone suffices con-
cerning matters which do not admit the in-
spection of men. — THE evidence of one woman
is admitted in cases of birth (as where one
woman, for instance, declares that "a cer-
tain oman brought forth a certain child").
In the same manner also, the evidence of
one woman is a sufficient with respect to vir-
ginity, or with respect to the defect of that
part of a woman which is conceal from
man. — The principle of the law, in these
cases, is derived from a traditional saying
of the Prophet, "The evidence of women is
valid with respect to such things as it Js
not fitting for man to behold." -Shafei holds
the evidence of four women to be a neces-
sary condition in such cases. The foregoing
tradition, however, is a proof against him ;
and another proof against him is that, in
the cases in question, the necessity of male
evidence is remitted, and female evidence
credited, because the ocular examination of
a woman, in these cas^s, is less indecent than
that of a man ; and hence also, as the sight
of two or throo persons is rnoro indecent
than that of one, the evidence of rnoro than
one woman is not insisted on as a condition
in those instances. It is to bo rornarkod,
however, that if two or three women give
evidence in such cases; it is a commedable
caution, because the evidence may be of an
obligatory tendency. — The law with respect
to the evidence of women in cases of birth
has been fully set forth in the book of divorce,
treating of the establishment of parentage,*
where it is said, that "if a man marry a
woman, and she bring forth a child at a
period of six months, or more, after her
marriage, and the husband deny the parent-
age, in that case the evidence of one woman
is sufficient to establish it." — and there are
also other examples recited to the same effect
The law with respect to the evidence of a
woman in cases of virginity, is that if a
woman complain of the impotency of her
husband, and assert , that her virginity still
exists, and another woman bear evidence
of the same, in that case one year must be
suffered to elapse, and then a separation
must be effected between the husband and
wife : f because virginity is a real entity,
and the existence of it has here been attested
by evidence. — The same rule also holds where
a person purchases a female slave on con-
dition of her being a virgin, and afterwards
desire to return h.ir bec-ius* of her being a
woman ; for if, in that case, another woman
should examine into her condition, and then
declare her to be a virgin, her evidence must
be credited, as virginity is an entity, and th©
existence of it is here proved by evidence ;
— or if, on the contrary, she declare her to
bo a woman, her muliebrity (which is a
defect) is established in virtue of such
declaration, and the plea of the purchaser
holds good : whence the seller is required to
take an oath that such defect did not exist
when he sold her, which, if he refuse to do,
he is bound to receive her back.
It is not admitted to prove that a child was
live-born further than relates to the rites of
•See Vol. I. p. 136.
t That is, provided he show no proof of
virility in the interim. (See Vol. I. p. 126.)
BOOK XXI.— CHAP. I.]
EVIDENCE
355
burial — THE evidence of a woman with re-
spect to Isthi'al* or the noise made by a
child at its birth, is not admissible, in the
opinion of Haneefa, so far as relates to the
establishment of the right of heritage in the
child ; because this noise is of a nature to be
known or discovered by men : but is admis-
sible so far as relates to the necessity of
reading funeral prayers ov:r the child : be-
cause these prayers are merely a matter of
religion; -in co sequence of her evidence,
therefore, the funeral prayers are to be re-
peated over it —The two disciples maintain
that the evidence of a woman is sufficient to
establish the right of heritage also ; because
the noi e in question being made at the birth,
nor-c but women can be supposed to be
present when it is made.— The evidence of a
woman, therefore, to this noise, is the same
as her evidence to a living birth : and as the
evidence of women in the one case is admis-
sible, so also is it in the o'her.
The probity of the witness , and his men-
tion of the term evidence are essentials.— lu
al' rights, whether of property or otherwise,
the probity of the witness, and the use of
the word Shahadit [evidence] is requisite :f
even in the Jcase of the evidence of women
with respect to birth, and the like ; and this
is approved ; because Shahadit is testimoney,
* If a child die immediately on its birth,
without making a noise it is then considered
in law to have been brought forth dead, and
it neither su:ceeds to a portion of its father's
estate, nor are funeral prayers read over it.
If, however, it make the smallest noise, it is
then held to die possessed of its portion, and
funeral prayers are read over it.— Thus if a
person should die, leaving his wife pregnant,
the division of his cstat is in that case
suspended till the birth of the child : if it
prove a dead child (that is, one that appeared
dead immediately at the birth and made no
noise), the estate is divided as if no such
child had been born ; but if it have made a
noise, its share is in that case allotted and
divided amongst its heirs.— The determina-
tion of the heirs, and consequently the nature
of the division of the estate must often rest
upon this circumstance. For instance, if a
person die without children, leaving a brother,
and his wife who is at that time pregnant,
and the child at its birth make a noise, and
immediately after die, it is held to be an
heir, and the mother, in exclusion of the
uncle, succeeds to the whole ; but if it make
no noise before its death, the uncle is then
considered. to be an heir, and no share is
allowed to the chiloV The law is the same
in the case of a grandson, whose father had
before died, being left under such circum-
stances. 1 ;
t In other words, it is requisite that the
witness say (in Arabic) "A«h-hado, I tes-
tify-' or (in-Pfersian) "Shahadit meyekoo-
nam, I bear witness.0
since it possesses the property of being bind-
ing ; whence it is that it is restricted to the
place of jurisdiction ; and also, that the
witness is required to be free, and a Mussul-
man.— If, therefore', a witness should say.
" I know,11 or " I know with certainty/'
without making use of the word Shahadit, in
that case his evidence cannot be admitted.
With respect to the probity of the witness,
it is indispensable, because of what is said
in the KORAN, "TAKE THE EVIDENCE OF
TWO JUST MEN ;" and also, because the
probity of the witnesses induces a probability
of the truth. — whereas the want of it in the
witness (indicated in his commission or pro-
hibited actions) renders it reasonable to
suppose that he will assert falsehoods, and
consequently induces a probabil ty of false-
hood.—It is recorded, from Aboo Yoosaf,
that an unjust* man, provided he be
possessed of generosity, ought to be credited;
because such a disposition renders it un-
likely that he will either suffer himself to be
suborned, or that he will wantonly assert
a falsehood— The first opinion, however
(namely, that the evidence of an unjust man
is not to be credited), is the most authentic,
—With respect to the use of the word
Shahadit, it is indispensable, because all the
passages in the KORAN, relating to evidence,
use this word ; and there is also a strong
degree of precaution in the use of it : for as
it serves to express an oath, people will be
more cautious of using it falsely.
The apparent probity of the witnesses suf-
fices, excepting in cases inducing punishment
or retaliation.— HANEEPA has said that the
magistrate ought to rest contented with the
apparent probity or a Mussulman, and
should not scrutinize into his character in
such a manner as to -give the opposite part}
an opportunity to scorn him j because the
Prophet (according to a tradition related by
Omar) has said, All MUSSULMANS are just
with respect to evidence, excepting such as
have been punched for slander ;" and also,
because the probable character of all that
profess the religion of Islam is an absti-
nence from every thing prohibited by that
religion ; and here it i* necessary to rest
satisfied with probab-lity, as the attain-
ment of certainty is impracticable,— In
cases however, inducing retaliation or pun-
ishment, mere pr* bability is not sufficient;
and therefore a purgation of the witnesses
must be made ; for punishment and retalia-
tion are cases in which all possible pretexts
of prevention are to be sought : if is there-
fore requisite that, in such cases, the cha-
racter of the witnessed b*}; strictly investi-
•Arab, Fasik, This term is fully ex1-
plained elsewhere, (See Vol. I. p. 26.) With
respect to evidence, Fasik seems nearly to
correspond with the term; infamous, as used
by our lawyers, in treating of iiicpmpetent
witnesses. (See Blackstone Book HI. chan.
23.)
356
EVIDENCE
[Vol. II
gated : — moreover, doubt is preventive in
those instances.
Ift however, their probity be questioned.
a purgation is required. — IF the defendant
throw a reproach on the witnesses, it is in
that case incumbent on the Kazee to institute
an inquiry into their character ; because, in
the same manner as it is probable that a
Mussulman abstains from falsehood, as being
a thing prohibited in the religion he pro-
fesses, so also is it probable that one Mussul-
man will not unjustly reproach another: —
here, therefore, is a conflict between two
probabilities ; and hence the necessity of the
inquiry of the Kazee into the character of
the witnesses, that he may discover vihich
of the p;obibilities prepondeiates. — It is
related as an opinion o" Aboo Yoosaf and
Mohammed, that a scrutiny must be made,
with regard to the witnesses, both openly
and privately, in all cases whatever ; since
thi decree of the Kazee rests upon proof,
and proof rests upon the integrity of the
witnesses. Besides, an inquiry into the
integrity of the witnesses tends to preserve
the decree of the Kazee from annulment ;
ix cause if he should pass a decree upon the
probable character of the witnesses and their
falsehood should afterwards be discovered,
the said decree would be rendered null. —
Several have alleged that this disagreement
between Haneefa and the two disciples is
founded on the difference of the times. In
the present age, however, decrees are passed
in this particular according to the doctrine
of the two disciples.
Nature of a stcrct. — A secret purgation is
made by a Kazee writing a letter, private y,
to a Mo. zkee or purpator (that is, a person
whose business it is to inquire into the
character of others), and describing to him
the family and countenance of the witnesses,
and likewise their place of abode ; and th/
purgator, in like manner, returning his
answer privately to the Kazee, lest if it were
known to the plaintiff, he might attempt to
injure him.
And an open purgation. — In an open pur-
gation it is requisite that the Kazee summon
together the purgator and the witnesses, and
hear the examination himself — During the
first age (that is in the time of the Prophet
and his companions) an open purgation was
practised : but in the present times a secreet
one is adopted, in order to avoid quarrels
and contentions between the purgator and
the witnesses ; for it is related as an opinion
of Mohammed that an open purgation tends
to sedition 'and contention. Some have said
that it is requisite that the purgator report
the witness not only to be just, but also
free ; for a slave may be ju^t, but his testi-
mony is nevertheless invalid Others have
said that his report of the integrity of the
witness is sufficient ; for his ( freedom is
established [in probability] by his abode in a
Mussulman country ; — and this is approved.
Jufrfcat'on of a witness by the defendant.
— IT is to bie observed that, according to that
doctrine which maintains the necessity of the
Kazee's purgation of the witnesses, whether
the defendant challenge their probity or not,
the justification of them by the defendant is
not of any weight ; in other words, if he
declare the witnesses of the plaintiff to be
upright men, yet his word is not credited ;
and such is the doctrine of the Zahir Rawa-
yet, from Aboo Yoo&af and Mohammed. It
is al'o related, as their opinion, that the
justification of the witnesses by the defen-
dant is valid , under this condition, however
(according to Muhammed), that there be also
another justification for he holds that two
are a'ways required, one being in no case
sufficient — The reasoning on which the
doctrine of the Zahir Rawayet proceeds in
this particular, is that the defendant is, in
the conception of the plaintiff and his wit-
nesses, a liar, and his denial of the claim un-
just and unfounded, but in which he never-
theless perseveres. He is therefore incapable
of appeasing as a purgator, since a purgator
must be a person of integrity, according to
all. — This proceeds on the supposition of the
defendant having declared the witnesses to
be just men, but that in the delivery of their
testimony they had committed an error : or
that they had been overpowered by forget-
fulness. If, however, he declare that "they
have spoken truth," or that " they are
just men and true speakers," this amounts
to an acknowledgment of the plaintiff's
right, and the Kazee must in such case pass
a decree against him, — not on account of his
purgation of the witnesses, but of his acknow-
ledgment.
One purgator suffices — ONE purgator is
sufficient, and two are superfluous, according
to Ha nee fa and Aboo Yoosaf. Mohammed,
on the contrary, maintains that purgation is
not valid unless performed by two, — A simi-
lar disgreement subsists between them, with
respect both to tl e messenger who goes to the
purgator on the part of the Kazee. and also
the inteipreter employed to explain and in-
terpret the deposition of the witnesses. — The
argument of Mohammed is, that as the power
of the Kezee to pass a decree is founded upon
the evidence of the probity of the witnesses,
and as the evidence of their probity is founded
upon purgation, it follows that plurality is in
this instance requisite, in the same manner
as probity, — or as, in cases inducing punish-
ment, it is required that the witnesses be
males.-yThe argument of Haneefa and Aboo
Yoosaf is that purgation is not considered in
the nature of evidence ; whence neither the
assembly of the Kazee. nor the use of the
phrase Shahadit, are required as conditions
with regard to it. Besides, the necessity of
a plural i ty in evidence is a mere matter of
religion.— in other words* is founded on a
passage in the KORAN, in opposition to
analogy ; for the truth of any assertion ob-
tains an ascendancy from the declaration of
one Just person, so far as relates to practice,
as is evident from this circumstance, that
many of the traditionary precepts which it is
BOOK XXI. -CHAP
EVIDENCE
357
necessary to follow, have been delivered by
one man) ; — and the necessity of a plurality
in evidence is contrary to analogy, the estab-
lishment of such necessity in purgation, by
inference from that rule, would be absurd.
A slave may be a pur gator in the secret
purgation — As the qualification? requisite to
a witness are not required in a purgator, a
slave is capable of being a purgator in a
secret purgation In an o :>en purgation,
however, the purgator must, according to all
our doctors, be possessed of the qualifications
necessary to a witness because of what is
recorded by Khasaf, th.t "an open purga-
tion is restricted to the assembly of the
Kazee."— Lawyers have observed, also, that
m the pargation of witnesses to whoredom
four purgators are necessary, according to
Mohammed.
Section
Evidence is of two kinds :—that which
occasions effect in itself.— THE things which
witnesses retain and bear testimony of, are
of two kinds.--The first are those which pro-
duce effect in themselves : such as sale,
acknowledgment, usvjrpation, murder, and
the sentence of a judge ; in ail of which the
effect results from the things themselves ;
and consequently, whenever a person hears
or sees anything of importance relating to
these matters, he may lawfully give evidence
of it, without its being demanded from him ;
because in these cas s, immediately upon his
hearing; or seeing, he becomes acquainted
with a circumstance which occasions effect
in itself, and there is therefore no need of
such evidence being demanded from him. —
In such case, also, it is requisite that he
deliver his testimony thus, "I give evidence
that a certain person bought, &c." and not,
"evidence has been demanded from me, &c."
because this latter mode of delivery is false
If, however, a person from without a door,
or from behind a curtain, hear any thing
spoken by another that is within, in that
case he is not entitled to give evidence of
the same ; and if he should attest it, the
K ,zee must not accept it, because it is illegal,
since, as vo ces are often similar, they cannot
be distinguished with certainty. But if,
having first entered into the house, he dis-
cover that there is only one person within,
and having then retired, and sat without the
door, he hear that person make an acknow-
ledgement, he may then lawfully attest the
same, because in such case he acquires cer-
tain knowledge.
And that, the effect of which rests upon
other evidence. — THE second kind of things
to which evidence relates, are those which do
not occasion effect in themselves; such as
testimony,* which does not occasion effect in
itself : because, as it is merely information,
it admits the supposition of being either true
or false • and such things as are doul tful arc
not decisive proof. — Upon testimony being
*Meaning testimony to evidence given by
another.
given, therefore, the hearer does not imme-
diately know that the right is proved ; and
consequently, if one person hear another
give evidence of something, he is not em-
powered to give evidence of the same unless-
the witness desire him t j attest his evidence ;
because evidence does not occasion effect in
itself, nor until it be removed to the assembly
of the Kazee. — Besides, as the attestation of
the evidence of another is an overt act with
respect to that other, it is requisite that the
other previously appoint this person his
deputy ; and in the case in question this is
not -uppoed.— In the same manner, also if
a person hear another desire a third person
to atte t his evidence, it is not lawful for
him in such case to v?ive evidence of the
same, because the original witness appointed
another, and not him, his deputy 10: that
purpose.
The signature to a deed must riot be attested,
unless the witness rocollect the circumstance of
signing it. — IF a person see his own signature
to a bill of sale, or the like he must not, merely
on account of the sight of his signature, attest
it, unless he otherwise recollect to have wit-
nessed the said bill ; since handwritings are
often similar — Some have said that this is
the doctrine of Hane^fa ; but that the two
disciples are of a different opinion. —Others,
again, have said that all are agreed in its
being unlawful to give the attestation merely
on the right of trie signature ; and that the
only case of this kind in which there is a
disagreement is that with respect to a Kazee ;
for if he should discover, in his Dewan, or
records, the evidence of any one, or a decree
of his own, he may, in such case (according
to the two disciples) pass a decree agreeably
thereto, notwithstanding he have forgot the
circumstance ; because the records of the
Kazee ; being kept under his seal, arc there-
fore secured against alterations, and conse-
quently afford certain knowledge — It is
otherwise with respect to bills of sale or the
like, because those, as being kept in the
hands of others are not secured against
alterations. — In the same manner, also, if a
person recollect the place in which his evi-
dence had been taken, without remembering
the affair to which it related, it is the same
as his seeing -his signature without remem-
bering his subscription of it, and therefore
he is not permitted to attest it :~and the
same rule obtains where people in whom
he places credit say to him, "you and we
did formerly jointly attest such particular
matter,"
Evidence cannot be given on hearsay,
except to such matters as admit the privacy
only of a few. —IT is not lawful for a person
to give evidence to such things as he has not
actually seen, excepting in the cases of birth,
death, marriage, cohabitation, and the juris-
diction of a Kazee, to all of which he may
lawfully be a testimony on creditable hear-
say.— This proceeds upon a favourable con-
struction.—Analogy would suggest that it is
not lawful for him to give evidence ir. those
358
EVIDENCE
[VOL. II.
cases also ; because evidence is founded
entirely on sight, from vhich knowledge is
derived ; and as no certain knowledge can be
acquired without sight, it follows that evi-
dedce, in the cases above excepted, is not
valid unless founded upon sight. — The reason
for a more favourable construction. In this
particular, is that these events are of such a
nature as admit the privacy only of a few ;
— thus birth (for instance) is an event at
which none is present but the midwife ; the
authority of the Kazee' is founded on the
appointment of the Sultan, \vhich is seen
only by the Vizier, or at most a few others ;
marriages and deaths are seen by but few ;
and cohabitation by none. All these, how
ever, are acts from which originate many
important concerns. If, therefore, the reality
of these things were not admitted upon
hearsay evidence, many inconveniences
would result: in opposition to cases of sale,
or the like, where privacy is not required —
It is to be observed that it is requisite, in
these cases, that the information have been
received from two just men, or from one just
man and two women.— Some have advanced
that in cases of death the information of one
man or one woman it sufficient, because
death is not seen by many, since as it occa
sions horror the sight of it is avoided.
And it must be given M dn absolute
rranner. — WHEN a person, in any of the
above cases, gives evidence from creditable
hearsay, it is requisite that he give it in an
absolute manner by say ng tor instance ;
"I bear testim ny that A, is the son of B ,"
and not "I bear testimony so and so, be-
cause I have heard it,"— for in that case the
Kazee cannot accept it ; — in the same manner
as if a person, having seen a thing in the
hands of A, were to say. "This thing is the
property of A.," in which case his testimony
is valid : but if he should state that "he
gives evidence because he has seen the th'.ng
in the possession o A./' the Kazee could
not accept his test mony. — So also, if a per-
son see another sitting in the court of justice,
deciding in a suit b tween plaintiff ami de-
fendant, it is lawful for him to give eviden e
that "that person was a Kafcee :'— or, if \
person see a man and woman dwelling in
tte same house, and conducting themselves
towards one another in the manner of hus-
band and wife, he may lawfully give evi-
dence of their being husband and wife ; in
the same manner as it is lawful f r a person
who sees a melon in the hand of another to
give evidence that it is the property of that
person,
Evidence to the burial of a pe son amounts
to evidence of his death. — IF a person say
that he was present at the burial of another,
or that he had read the funeral service over
him this amounts to the game as an actual
sight of the death, insomuch that if he
should explain to the Kazee the principle on
which he gives his evidence, it will still be
va'id.
WHAT is above advanced, that "it is not
lawful for a person to give evidence to such
things as he has not actually seen, excepting
in the cases of birth, death, marriage, co-
habitation and the jurisdiction of a Kazee,"
is taken from Kadooree ; and from these par-
ticular exceptions it may be inferred that
hearsay evidence is unlawful in every other
instance, such as Willa, charitable appro-
priations, and so forth. — It is indeed related,
as the last opinion of Aboo Yoosaf, that evi-
dence from hearsay is lawful in a case of
Willa ; because Willa is equivalent to re-
lation by consanguinity, as the Prophet has
said " WILLA is a connection like consan-
guinitv " — It is also related, as the opinion
of Mohammed, that hearsay evidence is
liwfull in a case of aporopriutinns ; for as ap-
propriation continues to operate f r a long
period of time, the laws with respect to it
would be rendered null if hearsay evidence
were not admitted to prove it. — Our doctor?,
however, argue that Willa is founded upon
a relinquishment of right of property : and
as, in bearing evidence to that, actual sight
is required, it follows that it is in the same
manner required with respect to a matter
derived therefrom, namely Willa.— With
respect to charitable appropriation, on the
contrary, hearsay evidence must be admitted
so far as regards the appropriation itself
(such as where the witness says, "I attest
this to be a wakf) : but it is not admitted
with respect to any conditional restrictions
imposed by the appropriator ; for although
the appropriation itself be notorious yet the
conditions of it are not so.
A right of property may be attested from
seeing an article in the possession of another.
—!F a person see any article (excepting an
adult male or female slave), in the hands of
another, he may in such case lawfully attest
its being the property of that other, because
possession argues property, since in all
causes of property, such as purchase, sale,
or the like, possession is the argument of its
existence. — For instance ; if a person sell
any thin?, his possession is- an argument of
the b gality of the sale ; and in the same
manner, also, the right of property is estab-
lished in a purchase from the possession of
the seller, and the right of property in an
heir, from the possession of him from whom
he inherits. — Hence, in giving evidence of a
thing being the property of another, it is
sufficient to have seen it in his pos ession. —
It is recorded from Aboo Yoosaf, that besides
the sight of the possession, it is requisite
that the witness verily believe the article to
be the property of the possessor, insomuch
that if he do not really think so he cannot
lawfully attest on the possessor's behalf. —
Several of our doctors also remark that this
explanation applies to the opinion of Mo-
hammed, above related, respecting the legal-
ity of attesting marriage, birth, and coha-
bitation on hearsay ;-— that is, that it is law-
ful for a person to attest any of these inci-
dents upon hearsay, provided he believe it
in his own mind, but not otherwise.— Shafei
BOOK XXL-CHAP. IV
EVIDENCE
359
has said that possession, together with
'ransaction.41 argues property (and many
of the Haneefite doctors are also of this
opinion) : because possession being of two
kinds, namely, either in virtue of trust or
of right of property, does not argue right of
property unless when united with tSe per-
formance of acts — Our doctors, on the other
hand: argue that transaction is also of two
kinds ; one, in virtue of delegation, and the
other in virtue of original authority : — and
henci the junction of transaction to posses- I
sion leaves still a doubt in regard to the pro- 1
perty.— In short, if a probable argument be
adopted, possession is thaci sufficient ; but if i
a certain one be required, possession, even I
when joined to transaction could not be !
sufficient.— It is to be observed that the case
here treated of admits of four statements.
I. Where a person sees both the proprietor
and the property, and is acquainted with
both,— that is with the countenance and the
family of the proprietor, and with the boun-
daries of the property, which he sees him
possess without strife ; and afterwards sees
the same thiig in the possession of another ;
and the first proprietor appears to cla m
it;— in which case it is lawful for him to gi\e
evidence of its being the property of the first
person, because of his having seen it in his
possession. II. Where he se*8 the property,
and its limits, but not the proprietor :— and
here aUo it is la vful for him to give evidence
i.f the property (upon a favourable construc-
tion of the LAW), because the proprietor is
known, so far as regards his family, from
hearsay. Ill Where he neither sees the
proprietor nor the property ; -and, IV.
Where he sees the proprietor but not the
property ; in both of which cases it is unlaw-
ful to give evidence with regard to the right
ot property.
And the right of property in a slave
may also be attested on the same groind —
IF a person see a slave, male or female, in
the possession of another, and know the said
pei son to be a slave, he may lawfully give
evidence to such slave being the property of
that other ; — for a slave not being his own
master, and of consequence not entitled to
go where he pleases, is apparently the pro-
perty of that person in whose hands he re-
mains. So also, if he should not know the
person seen in the possession of another to be
a slave, and being an infant, it should be
incapable of explaining its own condition,
he may in that case lawfully give evidence
of its being the property of the possessor ;
for an infant is not its own master.— But if
the person seen be arrived at the age of
maturity,— that is to say, be capable of ex-
plaining his condition,— and he should not
know whether he is a slave or not, then it is
* Arab, Teserrif : meaning (in this place,)
any act of mastery performed with respect
to the property in question, such as letting
it out to hire, for instance:
not lawfut to give evidence of his being the
property of the possessor, simply on the
sight of the possession.— This is the reason
of the exception, in the preceding case, of a
slave arrived at the age of maturity ; and
the ground ef it is that persons arrived at
the age of matu ity are in a manner in their
own possession ; and therefore the possession
of another, which indicates the right of
property of that other, is not to be dis-
covered from the simple sight —It is related
as an opinion of Haneefa, that even in this
case evidence to the right of property may
lawfully be given : but what has been before
related is the most authentic doctrine.
CHAPTER II.
OF THF ACCEPTANCE AND REJECTION OF
EVIDENCE
The evidence of a blind man is inadmis-
sible.— THE evidence of a blind man is not
admissible — ZafTer maintains that the evi-
dence of a blind map is admissible with
respect to matters in which hearsay prevails ;
(and there is also one report of the doctrine
of Haneefa to the same effect); because in
such matters hearing only is required, and
in the hearing of a blind man there is no
defect. — Aboo Yoosaf and Shafei have said
that the evidence of a blind man in these
matters is lawful, provided he was possessed
of sight at the tirn.' of their occurrence ; for
by means of that he acquires a certain
knowledge, which he is a afterwards, notwith-
standing his want of sight, capable of com-
municating, as that depends entirely on the
t'mgue, which in a blind man is not defec-
tive ; and it is in his power to show his
knowledge of the person with regard to
whom he gives the evidence, by a description
of his birth and family. — Our doctors, on the
other hand, argue thit in the delivery of
evidence there is a necessity to distinguish
between the person for and against whom it
is given ; and a blind man is inrapable of
doing this otherwise than by the voice ; and
this is attended with a doubt, which may be
avoided, by the party producing a witness
ps sessed of sight, —With respect to the
assertion of Snafei and Aboo Yoosaf, that ' it
is in his power to show his knowledge of the
person with regard to whom he gives the
evidence by a description of his birth and
family," it may b* replied that this mode has
been institured for a definition of the absent,
not of the present. — In short, in the the same
manner as the evidenee of a blind man is
inadmissible in cases relative to retaliation
or punishments, so also is it inadmissible in
all other cases whatever.
And if a persjn give evidence, and become
blind, a decree cannot issue upon it.— IF a
person, having given evidence, shouU after
360
EVIDENCE
[VOL. II.
wards become blind previous to the passing
of the decree, in that case (according to
Haneefa and Mohammed), it not lawful
for the Kazee to pass a decree thereupon ;
for the existence of t-e competency of the
witnesses at the time of passing the dacree
id a necessary condition, as the validity of
the evidence, at that time, constitutes the
proof ; and in the case here supposed the
evidence has at that period become null.
This case is therefore the same as if a wit-
ness, after having given evidence, should
either become insane, dumb, or unju't. in
any of which cases the Kazee coul i not pass
a decree upon the evidence so given. — It is
otherwise where the witnesses, having given
their evidence, either disappear or die; for
in that case the Kazee may lawfully pass a
decree upon it ; because the competency of
evidence is not annulled, but rather con-
cluded , and rendered complete, by death ;
and absence does not destroy this com-
petency.
The evidence of a slave is not admissible.
—THE testimony of any person who is pro-
perty,— that is to say a slave, male or
female. — is not admissible : because testi-
mony is of an authoritative nature : and as
a slave has no authority over his own person,
it follows that he can have no authority
over others, a fortiori
Or of a sl:indeTcr.—-'lHE testimony of a
person that has b**en i unished for slander is
inadmissible, even though he should after-
wards have repented ; because GOD has said,
in the Koran,— "Bur AS TO THOSE WHO
ACCUSE MARRIED PERSONS OR WHOREDOM,
AND PRODUCE NOT FOUR WITNESSES OF THE
FACT, SCOURGE THEM WITH FOURSCORE
STRIPES, AND RECEIVE NOT THEIR TESTI-
MONY FOR EVER ; FOR SUCH ARE INFAMOUS
PREVARICATORS, — EXCEPTING THOSE WHO
SHALL AFTERWARDS REPENT." — The rejec-
tion of his evidence, moreover, is included
as a part of the punishment prescribed for
the crime, as this tends to prevent the com-
misipn of it in future ; and as the rejection
of his evidence is a part of the punishment :
this effect must evidently remain after his
repentance, on the same principle as the
punishment itself is not remitted although
he repent, If it otherwise wiih respect to a
person punished for any other crime ; for
the evidence of such a person is admissible
after repentance, since the rejection of it, in
regard to him, proceeded from the stigma
Attached to his offence, which is done away
by repentance.— According to Shafei, the
evidence of a person punished for slander is
admissible, provided he have afterwards
repented because GOD, in enjoining the re-
jection of the evidence of sucn, has particu-
larly excepted penitents. — Our doctors, on
the other hand, argue that the exception in
the divine ordinance relates to that part of
it which declares slanderers to be infamous
prevaricators, and not to that part which
declares them to be incompetent as witnssses.
Penitence, therefore removes the stigma
from the character of such a pesspn, but
does not restore his competency to give evi-
dence.
But an infidel slanderer recovers his com-
petency as a witness upon embracing the
faith — IF an infidel, who had suffered pun-
ishment for slander, should afterwards be-
come a Mussulman, his evidence is then
admissible ; for although, on account of the
said punishment, he had lost the degree in
which he was befoi qualified to give evi-
dence (that is. in all matters that related to
hisowi sect), yet by his conversion to the
Mussulman faith he acquires a new com-
petency in regard to evidence (namely, com-
petency to give evidence relative to Mussul-
mans), which he did n >t possess before. «»nd
which is not affected by any matter that
happened prior to the circumstance which
gave birth to it.— It is otherwise with respect
to a slave, who, having suffered punishme-u
for slander, afterwards becomes free ; for
his testimony is not admissible after emanci-
pation ; because in his former condition of
slavery he did not possess, in any degree,
ability to give evidence, and consequently
the punishment w*s incomplete, since it
was impossible to subject him to any greater
degree of discredit than what was before
imposed on him ; the credit, therefore, which
he would otherwise have acquired afterwards
in virtue of his emancipation, if taken from
him in order to complete the prescribed
punishment
Evidence is not admitted in favour of
relations toithin the decree of paternity. —
TESTIMONY in favour of a son or grandson,
or in favour of a father or grandfather, is
not admissible ; because the Prophet has so
ordained.— Besides, as there is a kind of
communion of benefits between these degrees
of kindred, it follows that their testimony in
matters relative to each other is in som«
degree a testimony in favour of themselves,
and is therefore liable to suspicion.
Nor between an hnsband and wife, a master
and his slave or an hirer and his hireling. —
THE Prophet has said, '• \Ve are not to credit
the evidence of a wife concerning her hus-
band, or of a husband concerning his wife;*
* This doctrine of the inadmissibility of
the evidence of husband and wife in favour
of each other prevails only amongst the
Soonis {the followers of Omar], and has
given rise to much contention with the
Shiyas [the followers of Alee], who maintain
the opposite doctrine —The origin of their
di agreement on this occasion is thus related.
— I he Proohet in the course of his wars
having been presented with the village of
Fattook by some Christians, who saw the
impossibility of resisting his power, deter-
mined to have divided it amongst his com-
panions, as was his usual practice in regard
to the spoils taken in war. He was after-
wards, however, induced to give it to his
daughter Fatima, in consequence of a reve-
BOOK XXI.— CHAP II.]
EVIDENCE
361
or of a slave concerning his master ; or of a
master concerning his slave ; . r, lastly, of a
hirer concerning his hireling. — The author
of this work observes that by the term hirer
[Ajeer], as used in this place, is to be under-
stood (according to the explanation of the
lawyers) a select scholar who considers an
injury to his teacher as an injury to himself
—others have said that it is understood to
mean a person who lets out any thing by
lease for a month or a year ; for as, at the
time of giving evidence, he is entitled to the
rent, in return for the usufruct enjoyed bv
the other, a suspicion arises of his having
constit ted this person his tenant merely
with a view to procure his evidence — With
respect to the evidence of a husban 1 and
wife concerning each other, Shafei maintains
that it is admissible ; because the property
of each is distinct and separate ; and also
because distinct seisins are made, by each,
of the<r respective property ; whence it is
that retaliation is executed upon either for
the murder of the other.— and also, that
either may be imprisoned for a debt due to
the other.— Besides, the benefit which they
mutually derive from each other's property
is of no accpuut, because the existence of
such benefit is of an involved nature ;* — in
the same manner as the evidence of a
creditor in favour of his indigent debtor is
admissible, notwithstanding* he derive a
benefit from it as this benefit is of an
involved nature. — The arguments of our
doctors upon this point are twofold FIRST,
the traditionary precept of the Prophet
above quoted SECONDLY, the benefit which
from custom, the husband and wife derive
lation he received from heaven, enjoining
him not to give out of his own family what
had been freely conferred upon him.— After
his death it was seized upon by his successor
Aboo Beker; and when Fatima claimed it
in consequence of the gift of her father, and
produced her husband Alee, and her two
sons, as witnesses, her claim was rejected by
Aboo Beker, on the grounds of the testimony
of relations in that degree having been
declared inadmissible by the Prophet. This
tradition, thus quoted bv Aboo Beker has
ever since amoncst the Soonis occasi ned the
inadmis^ibility of the evidence of husband
and wife in favour of each other. The
Shiyas, however (vho follow a contrary
doctrine), mainfa:n that this pretended pre
cept of the Prophet was purposely forged by
theKhalifto defraud Fatima of her right;
and in support of his opinion they ar*ue
that if such a precept had existed, it could
not have been unknown to Alee ; and that if
he had known of it, he never would in such
case have appeared as a witness in favour of
his wite.
•That is to say, is interwoven with and
necessarily arises from, the particular cir-
cumstances of their relative situation
from the property of each other, which
occasions their testimony in favour of each
other to be, in a manner, testimony in favour
of themselves, and consequently liable to
suspicion.— It is otherwise with respect to
the testimony of a creditor in favour of his
indigent debtor, because he has no power
over the property of the debtor, whereas a
husband and wife have guch power from
usage and custom.
The testimony of a master cannot be ad-
mitted in favour of his slave.— Tub testimony
of a master in favour of his slave is not
admissib'e ; because of the tradition above
quoted ; and also because, if the slave be
not indebted to any person, such testimony
is in every respect in favour o himself ; — or
if, on the other hand, h^ be indebted, -till
the testimony of the master is in some respect
in favour of himself, as the matter remains
in suspense ; for if the master should choose-
to pay the de >ts, the testimony would be
completely relative to himself, whereas it
woulJ not be so in any degree in case h
should permit the slave to be sold in liquida-
tion of the debt ; — and as it is not known
which mode he may follow, the testimony is
therefore considered to be in some respect
relative to himself. — It is to be observed that
the evidence of a master in favour of his
iMokatib is not admissible ; for the reason
here stated
Nor of one partner in favour of another
(relative to their joint concern).— THE testi-
mony of one partner in favour of another,
in a matter relative to their joint property,
is not admissible ; because it is in some
degree in favour of himself. — The testimony,
however, of partners, in favour of each
other, in matters not relating to their joint
property, is admissible, because in it there is
no room for suspicion.
Testimony in favour of an uncle or brother
is admitted. — TESTIMONY in favour of a
brother or an uncle is admissible, because
the property and the immunities of these
classes of relations arc separate, and each
has no power over that of the other.
The testimony is not admissible of public
mourners or singers — THE testimony of
women that lament or sing is not admissible,
because they are guilty ot forbidden actions,
inasmuch as the Prophet has prohibited these
two species of noise. — (It is to be observed
that this case alludes to a woman who
laments for the adversity of others, not for
her own, and who hires herself out for that
purpose,)
Or of common drunkards ; or of falconer st
&c> — THE testimony of a person who is
continually intoxicated is inadmissible, be-
cause of his commission of a prohibited act.
— In the same manner, also, the testimony
of a person who amuses him self with birds,
such as pigeone or hawks, is inadmissible ;
because such amusement engenders forget-
fulness ; and also because in the practice of
it, he sees the nudities of strange women, he
having occasion to sit on the top of his house
362
EVIDENCE
[VOL. II.
to fly these birds. — In some copies, instead
of the amusement of Teyoor, or birds, that
of Tamboor.* or musical instruments, is
written, which alludes to public singers ;
and the testimony of a public singers is not
admissible, because he is the occasion of
assembling a number of people to commit a
prohibited action f
Or of atrocious criminals. — THE testimony
of a person who has committed a great crime,
such as induces punishment, is not admis-
sible, because in consequence of such crime
he is* unjust.
Or of immodest person.— THE testimony
of a person who goes naked into the public
bath is inadmissible, because of his com-
mitting a prohibited action, in the exposwe
of his nakedness.
Or of usurers or gamesters.— THE testi-
mony of a person who receives usury is
inadmissible ;— and so, also, of one who plays
for a stake at dice or chess,— because gaming
in that manner is ranked in the number of
great crime ; — and in the same manner,
also, the evidence of a person who omits his
prayers, from an attention to these games, is
not admissible — It is to be observed, how
ever, that simple playing at chess without a
stake is not destructive of credit, since such
play does not induce a want of integrity
because all our Imams are not agreed in its
illegality , Malik and Shafei bavin- declared
it to be lawful —It is recorded in the Mab-
soot, that the evidence of an usurer is in-
admissible only in case of his being so in a
notorious degree ; because mankind often
make invalid contracts ; and these are, in
some degree, usurious
Or of ptr ons guilty of indecorum.— THE
evidence of a person guilty of base and low
actions, such as making water or eating his
victuals on the high road, is not admissible ;
because where a man is not restrained, by a
sense of shame, from such actions as these,
he exposes himself to a suspicion that he
will not refrain from falsehood.
Or o/ free- thinkers, if they avow their senti-
ments — THE evidence of a person who openly
in veighs against the companions of the
Prophet and their disciples is not admissible,
because of his apparent want of integrity.—
It is otherwise, however, where a person
conceals his sentiments in regard to them,
because in such case the want of integrity
is not apparent.
The evidence of the sect of Hawa, and
other heretics, admissible, but not that of the
tribe oj Khetabia.— THE evidence of the sect
•In the Arabic and Persian, the words
Teyoor and Tamboor are written exactly
similar ; and as they can only be distinguished
from each other by the proper position of the
diacritical points, they are therefore very
liable to be confounded by the frequent
omission of these points.
fNamely, listening to music.
of Hawa* (that s, such as are not SoDnis) is
admissible ; excepting, however, the tribe of
Kherabia, whose evidence is inadmissible,
for reasons that will be hereafter explained.
— Shafei maintains that the evidence of no
tribe whatever of the sect of Hawa is ad-
missible, because the heterodox tenets they
profess argue the highest degree of depravity.
— Our doctors, on the other hand, argue that
although their tenets be in reality wrong,
yet their adherence to them implies probity,
since they have been led to embrace them
from an opinion of their being right ; and
there is, moreover, reason to think that they
will abstain from falsehood, because it is
prohibited in every religion. Hence the
case is the same as if a person should eat
of an animal which had not been slain
according to the prescribed form of Zabbah,
because of its being lawful amongst his
sect. It is otherwise where the baseness
proceeds from the actions, not from thf
belief.— With respect to the sect of Khetabia,
it is to be observed that they are in a high de-
gree heretics ; and amonpst them it is lawful
to bear positive testimony to a circumstance
on the grounds of another having sworn it
to th°m. Some have said that it is an
incumbent duty upon that sect to give evi-
dence in favour ot each other, whence their
testimony is not free from suspicion
Zimmees may testify concerning each other
— THE testimony of Zimmees with respect
to each other is admissible, notwithstanding
they be of different religions. — Malik and
Shafei have said that their evidence is
absolutely inadmissible, because, as infidels
are unjust, f it is requisite to be slow in
believing any thing they may advance, GOD
having said (in the KORAN). WHEN AN
UNJUST PERSON TELLS YOU ANY THING. BE
SLOW IN BELIEVING HIM '," — whence it is
that the evidence of an infidel is not admitted
concerning a Mussulman ; and consequently,
that an infidel stands (in this particular)
in the same predicament with an apostate. —
The arguments of our doctors upon this
point are twofold — FIRST, it is related of the
Prophet, that he permitted and held lawful
the testimony of some Christians concerning
others of their sect. — SECONDLY, an infidel
having power over himself, and his minor
children, is on that account qualified to be
a witness with regard to his own sect ; and
the depravity which proceeds from his faith
is not destructive of this qualification, be-
cause he is supposed to abstain from every
thing prohibited in his own religion, and
falsehood is prohibited in every religion.
It is otherwise with respect to an apostate,
•Anglice, the air ; a derisive appellation
given by the Soonis to the Shiyas. — Hawa,
also, is used to express the sensual passions,
whence the term Ahil Hawa signifies sen-
sualists, or epicturcans.
fArab. Fasik ; meaning, in this place,
degenerate or depraved.
BOOK XXI.-CHAP. II.]
EVIDENCE
363
as he possesses no power, either over his own
person, or over that of another ; and it is
also otherwise with respect to a Zimmee in
relation to a Mussulman because a Zimmee
has no power over the person of a Mussul
man — Besides, a Zimmee may be suspected
of inventing falsehoods against a Mussulman
from the hatred he bears to him m accou t
of the superiority of the Mussu'mans over
him
OBJECTION.— In ihe sati; man ur as there
subsists an enemity between Mu^ulmms and
Z mmees, so also is there an enmity between
the followers of other religions, sjci .is the
lews the Christians, and the \lagians : it
would follow, therefore, that amongst these
thi'. testimony of those of one religion cannot
l>c admitted with relation to others of a
different religion ; whereas it hath been
declared admissible,
REPLY, — Although the religions of these
be different, yet none of them being under
subjection to an >ther, so as to engender
reciprocal hatred ; there is no cause to suspect
that they will invent falsehoods against each
other.
A Moostamin cannot testify concerning o.
Zimmee ; but a Zimmee may testify con-
cerning a Moottamin. — THE testimony of an
infidel Moostamin with relation to a Zimmee
is not admissible, bjcasue he has no power
over the person of a Zimmee, as t e latter
M a fixed resident in the Mussulman terri-
tory. The evidence of a Zimmee, h >w *ver,
is admissible with respect to an infidel
Moostamin, in the sime manner as the
evidence of Mussul nans with relation to
them is valid.
And Moostamins may testify concerning
each other, being of the same* country — THE
testimony of one Moostamin is admissible
with respect to another Moostamin, provided
he be of the same country If, however,
they be of different countries (such as a
native of Russia and of Turkey) their testi
monies with respect to each other are not
admissible ; because this difference precludes
the operation of their power over each other ;
whence it is that they cannot inherit of each
other.
The testimony is admissible, of any one
whose virtues preponderate —THE testimony
of him whose virtues exceed his vices and
who is not guilty of great crimes, is admis-
sible, notwithstanding he may occasionally
be guilty of venial crimes.— What is here
advanced is an explanation of the degree of
integrity to which regard is paid in bearing
evidence : and this explanation is approved ;
for innocence with respect to great crimes,
and a preponderance of virtue over vice,
must necessarily be deemed sufficient, on this
principle, that if any occasional commission
of smaller crimes were destructive of testi-
mony, the door of evidence would be shut,
whilst the preservation of the rights of
mankind requires that it should be kept
open.
And of such as remain uncirtumcised from
any justifiable cause. — THE testimony of an
Acklif (that is, of one who has omitted
circumcision on account of old age, or for
some other sufficient reason) is admissible,
because the omission of this ceremony is
not destructive of justice ; —excepting where
it arises from a contempt of religion, or of
the authority of the oral law by which it is
enjoined, tor in that case integrity no longer
remains
Or o/ an eunuch. — THE testimony of an
eunuch is a lmu»ible, becau -e O»nar accepted
the testunmy of Alkia, who was an eunuch;
anJ also, b*came hi his bien deprived of
one of his members by violence, and there-
fore stands m the sa n • predicament with
one who has been mutila ed
Or of a bastard, — THE testimony of
bastard is valid, because he is innocent with
respect to the immorality of his parents.
Imam Malik rrumtuns that the testimony
of a bastard is not to be admitted with
respect to whoredom, as it may naturally be
supposed he wishes as many others as possible
reduced to the same level with himself, and
his testimony in a matter of this kind is
therefore liable to suspicion.— Our doctors,
hovever, argue that the present question
relates nerely to the point of integrity ; and
if a bastarJ be a just man, there is no reason
to suspect him of such a wish.
Or of an hernaphrodite.—THE testimony
of a hermaphrodite is admissible, because
such a parson u either a man or a woman,
and the evidence of both is admissible
Or of a viceroy.— THE testimony of a
governor on the part of a sultan is admis-
sible, according to a majority of the Haneefite
doctors, provided he do not enforce oppres-
sion ; but if he act oppressively his testimony
is not admissible Some have said that in the
iatter case also his testimony is admissible,
provided he be himself a man of generosity
and character, and be not guilty of boasting
and vain talk ; because it is in such case
natural to suppoae that a regard for his
reputation will prevent his as«ertng a false-
hood ; and the dignity of his character will
deter any one from offering him a bribe
Two brothers attesting their father's ap-
pointment of an executor must be credited, if
the exsnutor verify their testimony ; and the
same of the attestation vf two l-gatees. two
debtors or creditors, *>r two executors, to the
sa<ne effect.— WHERE two brothers attest
that their father had appointed a particular
person to be his executor, if that person also
claim the same, their testimony is valid,
upon a favourable construction. — but not if
he deny the appointment.— Analogy would
suggest that their testimony is not valid
in either case (and a case where two lega-
tees attest that the testator had appointed
a particular person his executor,- or where
two debtors or creditors of the deceased
essert the same,— or where two executors
attest the junction of a third person with
them in the executorship,— is subject to th
same analogy) :— because their evidence is
364
EVIDENCE
[VOL. II
in some degree advantageous to the witneses
themselves, inasmuch as the advantage to
be derived from it results to them also The
reason for a more favourable construction in
this particular is that as it is the duty of
the Kazee to appoint an executor where it is
required, and where the death of tha oerson
is notorious, the evidence in question is ad-
missible, inasmuch as it exempts the Kazee
from this trouble, and not because it estab-
lishes the proof of anything. —It is therefore
a substitute for the cast of a die, which saves
the trouble of election
OBJECTION.— Where there are two execu-
tors, there is no occasion for the Ka zee's
appointment of a third, and therefore
theappointment of a third, upo.\ such a ground,
is unwarrantable,
REPLY. — The two executors having ac-
knowledged that the deceased had joined a
third person with them, the Kazee is there
fore required to confirm him, since, in con-
sequence of such acknowledgment they can-
not act without him.
IT is to be observed that where the debtors
of the deceased attest the executorship of a
particular person, their evidence is admis-
sible, whether the death of the other be
notorious or not. because such evidence is
an acknowledgment affecting themselves ;
and the death of the creditor is therefore
established with respect to them, because of
their acknowledgment.
Attestation to a person's appointment of an
agent is not to be credited. — IF two brothers
bear testimony that their absent father had
appointed Zeyd an agent for the receipt of
debts due to him at Koofa, their evidence is
inadmissible, whether Zevd claim the said
agency or not ;— for the Kazee has no power
of himself to appoint an agent in behalf of
an absentee ; and the evidence is not in this
instance sufficient to warrant it, since it is
liable to suspicion.
A defendant's impeachment of the integrity
of witnesses is not crffdited, unless he state
their commission of sorre specific crime — IF
a defendant reproach a witness with a thing
which would impeach his legal integrity,
but which does not involve any of the rights
of the spiritual or temporal LAW, and pro-
duce evidence in supports of his assertion,
the Kazee must not hear them, nor pass a
decree of the injustice of the witnesses ;
because this injustice is a thing of a nature
which comes not within the junsidiction of
the Kazee, inasmuch as it is not permanent,
being removable by repentance. —Besides,
the evidence adduced in this case tends to
lay open faults .••—now the concealment of
faults is incumbent, and the manifestation
of them prohibited : as, therefore, a witness,
in giving evidence or this effect, is himself
•By faults is here understood veniel tres-
passes, such as might destroy the legal
integrity of a witness, but which do not
amount to crimes,
guilty of irregularity, his testimony cannot
be heard : for the manifestation of faults is
admitted only where it tends to maintain
the rights of others ; and that is only in
such cases as fall vithin the jurisdiction of
the Kazee ;— but the case in question is not
of that nature ; and therefore the evidence
cannot be admitted
Or adduce evidence to the plaintiff's ac-
knowledgment of their irregularity. — IF,
however, witnesses were to give evidence
that the plaintiff had himself acknowledged
the irregularity of the vitness, the evidence
would in that case be valid : because acknow-
ledgment is a thing w lich fills w thin the
jurisdiction of the Kazce.
He is not alloued to ad luce evidence fo
thei- being hired by the plaintiff — IF a de-
fendant brine witnesses to prove that the
plaintiff had hired his witnesses for ten
dirms (for instance), such evidence must not
be admitted : because, although it tend to
prove something more than a mere irregu-
larity, yet the defendant not being a regular
adversary of the plantiff in regard to this
matter, has no sight to establish it by evi-
dence, since, with respect to this point, he is
as it were a stranger.
Unl*ss his own property be involved. — IF,
however, the defendant be a regular adver-
sary (as if, for instance, he should assert
that the plaintiff had hired his witnesses to
give evidence for ten dirms from property
which he [the defendant] had put in his
hands). — in that case the evidence he pro-
duces in support of his allegation must be
admitted : because the defendant, is in this
instance a regular adversary of the plaintiff
in a matter of propertv ; and the proof in
regard to the property necessarily involves
the proof of the reproach,— In the same
manner also the evidence adduced by the
defendant is admitted where he asserts that
"he had compounded with the witnesses for
a certain sum of monev that they should
withhold their testimony in support of such
unfounded claim,— and that, having accord-
ingly paid the stipulated sum, they had
nevertheless given their evidence, and he
therefore prefers a claim for the sum paid fo
them ; " — for here the proof with respect to
the claim would also establish the proof of
the reproach. Lawvers have observed that
as the testimony of witnesses is admitted
with respect to anv thing that falls within
the jurisdiction of the Kazee, it follows that
if the defendant bring witnesses to prove
that the witness of the plaintiff is a slave,
or that he has been punished for slander, or
that he is a drunkard, or a slanderer, or a
partner of the plaintiff, — in all these cases
the evidence so adduced must be admitted.
A witness's immediate acknowledgment of
mis-statement or omissiont from apprehension,
does not destroy his credit. — IF a person givs
evidence, and before moving from the place
or, the Kazee passing a decree upon it, de-
clare that "he had given a part of his
evidence under the infl'ience of apprehen-
BOOK XXL— CHAP. III.]
EVIDENCE
335
sion," still, if he be a person of character,*
the deposed matter to which he adheres must
be credited. — The term apprehension,! as
here used, implies that a fault has been com-
mitted, either by withholding part of th.v
evidence which it was incumbent to have
mentioned, or by reciting, from forgetfulness,
something that was false —The reason of
admitting the evidence, in this case, is be-
cause the apprehension probably arose from
the awe excited by the assembly of the
Kafcee ; which is excused provided the per-
son be just, and that he rectify his error in
time. — It is otherwise where a person sepa-
rates from the assembly of the Kazee, and
afterwards returns and says. "I have omitted
part of my evidence from apprehension ;"
for in that case his evidence would not be
admitted ; because there is reason to suspect
a collusion with the plaintiff which requires
that caution be used : and also, because al-
though any addition or diminution, after the
delivery of the evidence, be accepted, and
either added to. or deducted from, the origi-
nal evidence, provided they be made in the
same meeting, still this is net allowed in
case of their being made at a different
meeting. The same rule also holds witn
regard to the mistakes of a witness in ex-
plaining the boundaries of a house ; — as if
he should say (for instance) the east instead
of the west ; or in explaining genealogy, as
if he should say (for instance) "Mohammed,
the son of AHMID," instead of "the son of
ALEE " — It is to be observed that the expo
sition of the law, in this case applies only
to the addition, by the witness, of some cir-
cumstance which may be in its nature doubt-
ful ; for if it should be in no respect doubtful,
then he may at any time afterwards, whether
at the same meeting or not, lawfully add it to
his evidence. — Thus if a witness omit the
use of the word Shahadit, or the like, and
afterwards declare this omission, it is in that
case admitted, whe her it be at the same
meeting or not,— provided he be a just man.
— It has been related, as an opinion of
Haneefa an < Aboo Yoosaf, that whatever
addition or diminution a witness may make
after the delivery of his evidence, shall in
every case be admitted, although it be at a
different meeting,— provided the witness be
a just man. But the first doctrine is the most
authentic, and decrees pass accordingly.
CHAPTER III.
OF THE DISAGREEMENT OP WITNESSES IN
THEIR TESTIMONY,
Evidence repugnant to the claim cannot be
admitted.— WHERE the evidence adduced by
*Arab Adil : literally, a just person (in
opposition to Fasik).
fArab Tawaham
a claimant is conformable to the claim, it it
worthy of credit ; but not where it is repug-
nant to it ; because, in matters concerning
the rights of the individual, the priority of
the claim is requisite to the admission of
evidence ; and this exists in the former in-
stance, but not in the latter, since in the
former the object of evidence (namely, a
verification of the claim) is answered, —
whereas in the latter the evidence tends
to a falsification of it, anJ it is therefore
the same as if no evidence it all were pro-
duced *
The witnesses must perfectly agree in their
testimony— THE concurrence of the wit-
n'-sses, in words and meaning, is requisite,
according to Haneefa.— If, therefore, one
witness bear testimony to one thousand
dirms beine du.», and the other to two thou-
sand, no credit is to be given to either .—The
two Hisciples are of opinion that the evidence
is to be credited to the amount of one thou-
sand dirms : and a similar disagreement also
subsists in a case where one witness attests
one divorce, and the other two or three
divorces.— The arguments of the two dis-
ciples are that the witnesses agree in the
smallest amount (such as in one thousand
dirms, or in one divorce) : and one of them,
besides his agreement in this amount, attests
an additional quantity —Their evidence,
therefore, must be admitted in the degree
in which they conrur ; and the testimony of
one, so far as it relates to the excess only,
must be rejected. — The reasoning of Haneefa
is that the witnesses differ in words, and
consequently in meaning, since meaning is
extracted from words. Thus two thousand
(for instance) can never be construed to mean
one thousand, as the terms are essentially
different.— -In the case in question, therefore,
the one thousand, and the two thousand,
respectively; are attested by only one witness ;
and the case is consequently the same as if
their testimony had related to different
articles,— as if one were to attest dirms and
the other deenars, for instance.
The witnesses may be credited to the smal-
lest amount in which they agree both in words
and meaning.— IF a person claim a debt of one
thousand five hundred dirms, and one of his
witnesses bear testimony to one thousand,
and the other to one thousand five hundred,
in that case the testimony must be credited in
the a.nount of one thousand dirms ;f for the
• To exemplify this case,— suppose a person
were to claim the right of property in a house,
on the plea of his having purchased it ; and
his witness attest the right of property from
its having been given to him ;— in that case
the evidence so given would be rejected.
fThe different between this and the pre-
ceding case turns entirely on the terms in
which the testimony is delivered ; for in the
case here considered the witness, m mention-
ing one thousand five hundred, mentions the
term one thousand,- .'witteri so far come; de*
366
EVIDENCE
II.
concur in that amount, both n
w *rd* a-»d meaning, as one thousand h
mentioned by both, and five hundred is HI
add'ttonal part of the speech, which add
force to the former part, instea I of destroy-
ing it — Analogous to this is one divorce anc
one divorce and an half; or one hun^rec
dirms and ore hundred and fifty dirms ; th*t
is to say, in both these cases the evidence is
admitted in the least degree, namely, in the
degree of one divorce, and to the amount of
one hundred dirms. —It would be otherwise
if one witness should attest ten dirms, and
the other fifteen ; because this is similar to
the attestation of one thousand and two
thousand, the effect of which has he^n before
stated.
The evidence of a witness who attests a
larger sum than the claim amounts to is null.
— IN a case where one witness attests one
thousand dirms, and the 6ther one thousand
five hundred, and the claimant expressly
declares that only one thousand dirms is due
to him, the testimony for one thousand live
hundred is null, as being falsified by the
claimant.* The effect is also the same where
the claimant alleges one thousand dirms, and
one of the witnesses attests one thous >nd,
and the other one thousand five hundred ;
for here also the claimant falsifies the testi
rnonyofone of his witnesses, inasmuch as
his claim is different from it. A conformity,
therefore, between the claim and the evidence
is indispensably necessary : and hence, if the
claimant should say, "my original claim
was one thousand five hundred dirms, bul I
received five hundred/' or "I exempted the
debtor from five hundred ;" in that case each
of the above-mentioned testimonies would
be ct edited, because of their co fortuity with
the claim.
Evidence to a debt is not annulled by a
-subsequent declaration of part of the debt
having been discharged — IF two persons give
evidence to a debt of one thousand dirms,
and one of them afterwards declare that the
debtor had paid five hundred dirms of it,
still the evidence of one thousand dirms
being due must be credited, and thai of the
five hundred having been paid must be re-
jected. The reason of this is, that both wit-
nesses agree in the debt of one thousand
dirms, whereas one witness only attests the
payment of five hundred dirms ; and as two
witnesses are requisite to establish proof, the
testimony in the first instance is therefore
admitted as proof ; and the additional decla-
ration (of one thousand dirms having been
paid) is rejected —It is related as an opinion
of Aboo Yoosaf that in this case the claimant
with the testimony of the other witnesses ; —
whereas, in the former instance, the witnesses
coincide only in the term thousand, which is
not perfectly definite.
•Consequently the claimant must pro-
duce another witness, as two are required to
establish his claim
is entitled only to five hundred dirms, be-
cause the sum of the testimony of the witness
who attests the payment of five hundred
dirms is, that the debt in fact amounts only
to five hundred. The above explanation,
however, is a full refutation of this opinion.
It is to be observed that when the witness
is informed of aiy j artial discharge of the
debt (as in the case, for instance, of five
hundred out of the thousand), he must not
bear testimony to the debt of one thousand
until the creditor make an acknowledgment
of tne receipt of five hundred : for otherwise
he would be considered as aiding the injustice
of the creditors. In the Jama Sagheer it is
related, that if two persons attest a debt of
one thousand dirms due by OmartoZeyd,
and one of them afterwards bear testimony
to Omar having paid five hundred of it, anli.
the claimant deny the same, — in that case
their evidence of the debt, in which they
both agree, must be credited ; and the single
testimony of one, with regard to the pay-
ment, must be rejected. Tahavee reports it
as an opinion of our doctors, that the evi-
dence to the debt is not to be credited (and
Ziffer has adopted this opinion) ; because
the claimant contradicts tha testimony of the
payment. To this, however, it is answered,
that although the claimant do contradict
this latter testimony, yet he does not con-
tradict the first evidence, which is established
in its validity by the concurrence of two.
The evidence of witnesses who agree with
respect to fact and time, but differ with re-
spect to place, must be rejected. — IF two per-
sons bear testimony that a certain person
had killed Zeyd, on the festival of the sacri-
fice, at Mecca : and two others bear testimony
that the said person had killed Zeyd, on the
same day. at Koofa ; in such case, if all these
witnesses be assembled at the same time, in
the presence of the Kazee, the whole of their
testimonies must be rejected ; because, of the
evidence of the two parties, it is undoubtedly
certain that that of one of them must be
false, and there is no criterion to ascertain
to which the preference be longs. —If, on the
contrary, the evidence of one of these parties
precede that of the other, and the Kazee in
consequence pass sentence, and afterward
two others exhibit evidence of a different
nature, in that case the Kazee must not
admit the evidence of the latter, because the
first evidence, in virtue of the issue of the
decree consequent upon it, acquires a supe-
riority over the latter, which prevents its
annulm nt.
Evidence to the theft of an animal is not
annulled by a difference between the witnesses
with respect to the colour, but it is so by a
dfference with respect to the sex.-'It two
persons attest the theft of a cow, but differ
n regard to the colour of it, their evidence
s nevertheless valid, and the hand of the
hief must in consequence be cut off. If, on
he contrary, one of the witnesses declare
he animal to be a cow, and the other allege
hat it is a bull, their evidence, in such case.
BOOK XXI,— CHAP. III.]
EVIDENCE.
367
it not ad nissible, and the hand <tf the thief
must not be cut off.— This is the doctrine of
Haneefa — The two disciples maintain that
the thief is not to suffer mutila ion in either
case. Some have said that this disagreement
proceeds on the supposition of the attested
colours being in some degree similar, such as
red and black, and not where they differ
completely, such as black and white. Others
again have said that it subsists in all cases
where the witnesses differ with respect to the
colour. The reasoning of the two disciples
is, that the theft of a black cow is different
from that of a white cow ; in other words,
they are two distinct animals ; and hence the
due quantity of evidence (namely, that of
two witnesses) does not appear with respect
to either allegation of theft — It is therefore
the same as if two persons were to testify
that a certain person had usurped the cow of
such a person, but to disagree with respect
to the colour of the cow ;— in which case the
evidence of both would be rejected ; and so
also in the present instance, a fortiori, be
cause the penalty annexed to theft (namely,
amputation) is of a most grievous nature
Hence a difference of the witnesses with re-
spect to the colour is the same as a difference
with respect to the gender —The argument
of Haneefa is, that in a case of differenae
between the witnesses concerning the colour
of the animal, it is possible to reconcile the
contradiction by supposing the Witnesses to
have viewed the cow from a distance, and
in the night time, since thefts are most
commonly perpetrated at that reason ;— and
colours are of a dcceptious nature ; -cattle,
moreover, are often pye-balled ; and it is
therefore possible that the cow may be black
on one side, which Jwas seen by one of the
.vitncsses, and white on the other side, which
was seen by the other witness.— It is other-
wise in a case of usurpation, since that most
commonly happens in the day-time, and
consequently the fact is most probably seen
in the light, and near at hand. It is also
otherwise with respect to the sex of the
animal, since two sexes cannot unite in the
same creature, Besides, a knowledge of the
sex requires a close inspection, and hence the
case does not admit of uncertainty.
Evidence to prove a contract is annulled
ly any difference with respect to the terms of
the contract — IF one person attest that Zeyd
had purchased a slave for one thousand
dirms, and another that he had purchased
i e said slave for fifteen hundred dirms, in
that case the evidence of both is null : be-
cause the object of the evidence is to estab-
lish a cause of property, namely, the con-
tract of sale : but the mention of two prices
necessarily implies the existence of two con-
tracts; and the proof of either of these is
defective, as there is only one witness to
each Th s case proceeds on the supposition
of the buyer being the plaintiff; but the
effect is the same in case of the claim having
been made by the seller ;— and it matters
not whether, of the two sums attested, the
plaintiff claim the largest or the smallest;
because the proof is defective on either sup-
position, for the reason already explained. —
The same rule also holds with respect to a
contract of Kitabat : that is, where a Mokatib
and his master disagree with respect to the
amount of the ransom or consideration of
Kitabat, and the two witnesses likewise dis-
agree in their testimony, the evidence, in
such case, is null, since the evidence, in
(namely, the establishment of the contract of
Kitabat) is defective, for the reasons already
explained ; —and this, whether the master or
the slave be the plaintiff If is also the
same with respect to Khoola, manumission
for a compensation, and composition for wil-
ful murder, provided the claim be preferred
by the wife, the slave, or the murderer : —
because in all these cases the object of tht
evidence is the same (name y, the establish-
ment of the existence of a contract), and is
defeated by any disagreement of the wit-
nesses.— But if, in any of' these cases, the
claim be preferred by the opposite party, it
then becomes equivalent to a case of debt,
and the law takes place accordingly. — Thus,
if the claim be for one thousand five hundred
dirms, and one of the witnesses declare it to
be one thousand, and the other one thousand
five hundred, in that case, according to all
our doctors, a decree must be given for one
thousand dirms.— If, on the contrary, the
claim be for two thousand dirms, and one
witness attest to one thousand, and the other
two thousand, in that case nothing can be
decreed, according to Haneefa ; whereas,
according to t e two disciples, one thousand
must be decreed.— The principle on which
these cases resemble debt is, that the pardon
for murder, the freedom of a slave, or the
divorce of a wife, is established by the
acknowledgment of the person to whom each
of these rights appertain. — Hence, in such
case, his claim of debt only remains, and
there is no occasion for the proof of the con-
tract,— In the case of a pledge, if one witness
attest that it was pawned for one thousand
dirms, and the other that it was pawned for
one thousand five hundred, and the claim be
preferre by the] pawner, the evidence is in
that case inadmissible; because the pawner
has no advantage in preferring such a claim,
since he cann t resume his pawn until he
pay the debt opposed to it. — His claim,
then fore, is not regarded; and such being the
case, the evidence he adduces is, as it were,
evidence without a claim : and evidence
without a claim is inadmissible. — If, on the
contrary; the claim be preferred by the
pawnholder, it is the same as a claim for
debt. — In a case of hire, if one witness tes-
tify to one thousand dirms, and the other to
one thousand five hundred, then, provided
this difference happen at the beginning of
the term of hire, it is analogous to a similar
difference concerning a sale ; but if it hap.
pen after the expitation of the term, and
the claim be preferred by the hirer, it is a
claim of debt.
368
EVIDENCE
[VOL. II .
Except it regard a woman's d wer wht,n
she is entitled to the smallest sum testified* —
IN a case of marriage, if one of two witnesses
testify to a dower of one thousand dirms, and
the other to a dower of fifteen hundred, the
dower is established in the amount of one
thousand dirms, according to Haneefa,
whether the claim be pieferred by the
husband or wife, and whether it be for the
smallest or greatest of the attested sums,
This is according to a favourable construe
tion. The two disciples, arguing from ai a-
logy maintain that the evidence is totally
inadmissible. — (It, is however, recorded in
the Amalee, that the o -union of A boo Yoosaf
in this instance, arcords with that of
Haneefa.) — The reasoning of the two dis-
ciples, in support of their opinion, is that
the disagreement of the witnesses with re-
gard to the amount of the portion is in fact
a disagreement with regard to the marriage
contract, since the object of both is the
establishment of a da use, namely, the said
contract ; — the disagreement in this instance,
therefore, is analogous to a similar disagree-
ment with regard to sale. — The reason for a
more favourable construction of the LAW in
this particular, as adopted by Haneefa, if
that property, in the case of marriage, is
merely a subordinate point, the original
object of it being to legalize generation, to
unite the sexes, and to endow the man with
a right in the woman's person. Now as
there is no d fference whatever upon these
points, they are accordingly established in
the first instance ; and if any disagreement
then occur concerning the subordinate or
dependant point the smallest sum attested
is decreed, since to that amount both wit-
nesses agree.— What is here advanced, that
the case is the same "whether the claim be
for the smallest or for the greatest attested
sum/' is approved. — Some of the learned
have said, that the difference of opinion
between Haneefa and the two disciples pro-
ceeds only en the supposition of the claim
having been preferred by the woman : for
that, in case of the claim being made by the
husband, they art all agreed in regard to the
madmissibility of the evidence ; since his
object can only be the establishment of the
contract, whilst the object of the woman is
the property.— Others ag^in have said that
this difference of opinion obtains in either
case; and this is approved.
CHAPTER IV.
OF EVIDENCE RELATIVE TO INHERITANCE.
Evidence must be adduced to prove the
death of^the inheritee and the right of the
heirs, before inheritance can take effect —
IT is a rule, if an inheritee's* right
of property in any thing {be proven, still a
* Meaning, the person from whom inheri-
tance is derived, The translator is aware
decree cannot pass in favour of the heirs,
until proof be adduced of the death of the
inheritee, and of their right of heritage, —
This rule obtains with Haneefa and Moham-
med. Aboo Yoosaf maintains that the thing
must be immediately decreed to the heir ;
for he alleges that the property of the heir
is, in fact, the property of the inheritee, a< d
consequenty that evidence to the inheritee's
right of property in any thing is, in fact,
evidence to his heir's right of property in
that thing. — Haneefa and Mohammed, on
the contrary, allege that the right of the
heir is inchoate and extant de noyo, with
respect to all the rules to which the inherited
property is subject (whence it is that a
course of abstinence is enjoined upon an
heir, with regard to an inherited female
slave, — and likewise, that whatever a poor
inheritee may have received by way of
charity is lawful to his rich heir) ; and the
right of an heir being inchoate and extant
de novo, it is indispensable, in such case,
that the witnesses bear testimony to the
shifting of the right from the inheritee to
the heir, — in other words, that they attest
the inheritee to have died, and to have left
the article in question as an inheritance to
his heirs.
It suffices that the witnesses attest either
the property »r possession of the inheritee at
the time of /us decease — THEY deem it
sufficient, however, m order to prove the
shifting of the right of property, that the
witnesses attest that "the thing in question
was the property of the inheritee at the
Period of his death ;" for then the shifting
is established from necessity ; — and in the
same manner, it suffices if they attest that
"it was in the keeping and possession of the
inheritee at the time of his death;" for
although the possession of an article may
have been in virtue of a deposit, or of usur-
pation, yet the pos essi on at death, in either
case, is in fact a possession in virtue of the
right, because of the obligation of responsi-
bility which then takes place:— in a case of
usurpation evidently ; and also in a case of
deposit,* because of the death of the trustee
without any explanation ; — in other words,
if a trustee should die, without explaining
that a particular thing in his possession is
the deposit of a particular person, it occa-
that this term is not sanctioned by authority.
Anecestor being the phrase generally used in
our 1 iw-books. — The nature of the Mussul-
man laws cf inheritance, however, renders
it necessary to adopt some term of more
general import, aince, according to these,
inheritance may either ascened or descend. —
The translator, therefore, has adopted this
term, both in order to avoid the inconve-
nience of a perpetual pariphrasis, and also
because it literally expresses the sense of
the Arabic term Mawris. signifying "in-
herited from."
* See Deposits.
BOOK XXI.— CHAP. IV.]
EVIDENCE
369
sions responsibility, because the trustee, in
dying without explaining the case, was most
certainly guilty of a want of care of the de-
posit ; and a want of care of a deposit is a
transgression with respect to the deposit,
which induces responsibility. — Evidence,
therefore, of a thing being in the possession
of a certain person at his death, is equiva-
lent to evidence of its being his property.
An heir may recover an article in posses-
sion of another by proving it to have been
the property of his inheritee, or a loan or
deposit from him.— HAVING thus explained
the tenets of each of four doctors upon this
suSject it follows that if witnesses were to
give evidence that a particular house was in
th possession of a certain mm at his death,
the evidence so given must be admitted
with respect to the claimant being the heir
of the deceased. In the same manner also
the testimony of witnesses must be admitted,
where a person adduces evidence t6 prove
that a particular house, in the possession of
a certain person, was the property of his
father, and that his father had lent it, or
had delivered it in deposit to the person then
possessing it. In this case, therefore, the
said person is entitled to take the house
from the present occup er, without being re-
quired to prove, by witnesses, that his father
had died, and that the said house had been
left to him inheritance. — This ; according
to the tenets of Aboo Yoosaf, is evident :—
and so also according to the tenets of
Haneefa and Mohammed ; because, in the
case in question, it has been shown, by
the testimony of witnesses, that the father
was in possession at the time of his death,
inasmuch as the possession of a borrower
or trustee is equivalent to his own pos-
session : and on this account there is no
necessity for proving the shifting cf the
property to the heir, since that is conse-
quence of the proof of the possession, as Has
been already explained. — It is to be observed
that the law is the same where, under these
circumstances, the claimant asserts the pos-
session of the other to have been in virtue
of a lease : because the possession of a lessee
is equivalent to the possession of the lessor.
The right to an article is not established by
evidence to the former possession of it. — IF
a person claim a right of property to a house
in the possession of another, and the testi-
mony of the witnesses produced by him
should run in this manner, "we testify that
the said house was in the possession of the
claimant one month ago." — such evidence
must not be admitted.— This is the doctrine
of the Zahir Rawayet. It is related as an opi-
nion of Aboo Yopsaf that the evidence, in this
case, is a admissible ; because possession is an
object in the same manner as property ; and
as the testimony of the witnesses would
have been accepted, in case they had said
that the house in question was the property
of the claimant one month ago, it follows
that it must be admitted in this case also
— Besides, if the witnesses had deposed tha
the other had taken the house from the hands
or possession of the claimant, their evidence
would have been admitted, and the claimant
would, in consequence, have been put in
possession of the house. The doctrine of .
;he Zahir Rawayat, in this particular, has
:>een adopted by Haneefa and Mohammed ;
and the arguments in support of it are two-
bid. — FIRST, the seisin of the present pos-
sessor is actually seen with the eye ; whereas
:hat of the claimant, which formerly existed,
s only heard from the tongue of the wit-
neesses ; and knowledge from hearsay can
never be put in competition with that from
actual sight.— SECONDLY, the evidence, in
his case, relates to a matter of uncertainty ;
since the former seisin of the claimant, not
3eing definitely known, admits of three
uppositions, as it may have existed in
virtue either of right of property, of de
posit, or of usurpation ; and where the
point is of so uncertain a nature, it is im-
possible to pass a decree upon the possession.
It is otherwise where the witness attest the
right of property, as that admits not of
various suppositions ; — or, where they attest
that the house had been taken from the
claimant ; because this is a matter of cer-
tainty, of which the law is known, namely,
the obligation of restitution, or of replacing
the thing, as it formely stood, in the pos-
session of the claimant.
Unless the defendant acknowledge such
former possession. — IF the possessors of the
house should himself acknowledge the for-
mer possession of the claimant, in that case
a decree must pass for restoring the claimant
to his possession ; for the uncertainty with
regard to the subject of an acknowledgment
is no bar to the validity of the acknowledg-
ment itself.
Or two witnesses attest his having made
such acknowledgment — IF two persons attest
the acknowledgment of the defendant, that
•'the thing in his possession had formerly
been in the possession of the claimant." the
article in question must in that case be re-
stored to the claimant ; because, although the
subject of the acknowledgment be a matter
involved in uncertainty, yet the evidence
here relates, not to it, but to the acknow-
ledgment itself, which is a matter of cer-
tainty ; — and the uncertainty in the subject of
it is no bar to the decree of the Kazee since
he may afterwards desire the acknowledger
to explain the nature of the uncertaintly.
CHAPTER V.
OF THE ATTESTATION OF EVIDENCE
Attestation of evidence is admitted in all
matters nof liable to be affected by doubt. —
An attestation of evidence is admissible in
all such rights as do not drop in consequence
of a doubt ; because there is a necessity for
this, since u may happen that a witness,
from various causes (such as sickness), may
not be able to give his evidence in pereon ;
370
EVIDENCE
[VOL. II.
whence, if an att*s*at on of his evidence
were not admissible, the rights of mankind
would oftei be destroyed. There is, row
ever, a degree of doubt attending it : bt-
cause the sejo-idary Ant icss in such ra^e, i
merely a substitute for the p-irmry witnes; ;
— and if there be many gradations between
him and the primary, the suspicion of f»ils
hood b*comes suil strong :r. -Th^ie is, mo n
over, a possibility of avoiding this exp^
dient, by desiring the party to produc •.
independent of the witness whose attend-in «-•
is impracticable, some other who is aLo
a primary witness — An attestation of evi
dence, therefore, is never admitted wher^ ii
tends to establish a matter which is r^peiL-.i
by the exist nee of a doubt, such as pjnbh
ment or retaliation
The attestation of the same two witnesses
suffices to prove the evidence of two*— Tim
attestation of two men with regard to th -
evidence of two others is valid. Shafei
maintains that the evidence of four men i*
necessary to authenticate that of two men ;
because, in his opinion, two secondary wit-
nesses are equivalent to one principal, in the
same manner as two womea are equivalent
to one man. The arguments of our doctors
in support of their doc»rine upon this point
are twofold : — FIRST, Alee has declared that
an attestation of the evidence of one man is
not admissible unless attested by two —
SECONDLY, the stating the evidence of a
principal or original witness is included in
the number of rights. If, therefore, two
men testify to the evidence of a principal
witness, and afterwards testify to the evi
dence of another principal witness, both
evidences are valid . nor is it required that
the evidence of each principal witness should
be testified by two separate secondary wit-
nesses.
But the evidence of each mu-t be attested
by the two respectively THB attestation of
one person to the evidence of one witness is
not admissible, because of the opinion of
Alee, as before quoted. — Malik admits the
attestation of one person to the evidence of
one witness — The precept of Alee, however,
is in proof against him — Besides, th* evi-
dence of one principal witness is included
amongst the number of rights, and thsre-
fore requires to be proved by two witnesses.
The attestation must be at the desire of the
primary witness, who must state the terms of
his testimony to the attesting witness. — IT is
requisite that the principal witnees desire
the secondary to bear testimony to his evi-
dence, after the following manner — "Bear
testimony to my evidence, which is, that A.
the son of B, has made an acknowledgment
before me to a particular effect, and has
desired me to attest the said acknowledg-
ment."— The reason of this is that the se-
condary witness is a ceputy of the principal,
and it is therefore necessary that he appoint
him his agent, and desire him to bear evi
dence in the manner above related. — It is
also requisite that the principal give his
evidence to the secondary, in the same
manner as he would have done in the as-
sembly of th^ Kazee, in order that he [the
secondary] may report the same: literally, in
that assembly — It is to be observed, how-
ever, that if the principal should not men-
tion that "A, the son of B. had called him
10 witness his acknowledgment," still his
attestation is valid ; because whoever hears
another make an acknowledgment may law-
fully give evidence of the same, although
the acknowledger should not have desired
him to bear testimony
Form of an attestation* — IT is requisite
that a secondary witness del.ver his testi-
mony in the fo.iowiig manner: — "Zeyd has
called upon me to attest his evide ce that
Omar has made an acknowledgment before
him to a particu'ar effect, and that he had
desired him to bear testim my to h's evidence
of the said acknowledgtn.-nt." - All this is
required, because it is necessary that a
secondary witness recite the substance of
the evidence of the principal, and specify
that he had called upon him to bear testi-
mony to it
A person cannot attest the attestation of
another , unl jss that other desire him so to ao.
— IF Omar hear Z yd assert that a particular
person had desired hi-n to bear testimony to
some circumstance, it is not in that case
lawful for Omar to attest the said evidence
of Zeyd, unless Zeycl should have particularly
called upon him to attt st the same ; because,
in the attestation of evidence, that of having
£een called upcn to attest it is a necessary
condition. This U according to all our
doctors : —according to Mohammed, because,
in his opinion; the decree of the Kazee passes
on the strength of both evidences ; that is,
of the principal and the secondary ; and also
because both of them are liable, in an equal
degree, to the penalty in case of a recession
from their evidence : -and according to
Haneefa and Aboo Yo^saf because, in their
op nion, a repetition of the evidence of the
principal witness before the Kazee is neces-
sary for the establishment of proof ; and
therefore the circumstance which establishes
the proof ought to be explained.
Attestation is admitted only in case of the
death, absence (at a distant place), or sickness
of the primaiy witness.— THE attestation of
evidence is not admissible excepting where
the principal witi.ess have died, or have
departed to a distance of three days journey
or upwards, or are so sick as to be unable to
attend at the assembly of the Kazee. — The
reason of this is that the attestation of evi-
dence is admissible only from necessity ; and
this necessity exists only where the principal
witnesses are unable to give their testimony
personally, which inability exists in all these
cases.— It is to be observed, that, in case of
the absence of the principal witnesses, the
distance must be estimated by the time re-
quisite to travel it ; because the incapability
of appearing to give evidence is founded on
the distance, which the LAW estimates from
BOOK XVI.-CHAP, V,]
EVIDENCE.
371
the length of time. It is related, as an j
opinion of Aboo Yoosaf, that if the absent
person be at a place so situated as that,
having occasion to appear in the assembly
of the Kazee in the morning, he could not
return to his family that day, in that case it
is lawful to accept, for the preservation of
the rights of mankind, an attestation of his
evidence. Lawyers, however, remark that
the iormer doctrine is the most authentic,
as in this latter case there is no great incon-
veniency ; and Aboo Leys has also given this
exposition upon the point.
The attesting witnesses may appear as
pur gators on behalf of the primary wit-
nesses.— THE justification of the original
witnesses by the secondary is admitted,
because they are capable of being purgators
— In the same manner also, the justification
of one witness by another witness is valid,
for the like reason ; ano also because the
effect of it is advantageous to him, since the
Kazee will -n consequence of it pass a decree
It is likewise to be observed, that this degree
ot advantage does not subject a just man to
any degree of suspicion : in the same manner
as he lies not under any suspicion from the
cL'hv ery ot his own evidence. A just man
indeed cannot possibly lie under suspicion
from his justification of another witness,
because his testimony is credible in itself,
although that of the other be rejected.
But their not doing so does not affect the
evidence which they attest.— IF secondary
witnesses remain s lent with respect to the
justification of the principal witnesses, it is
valid ; that is to say, the testimony of the
pri .tit al wi es.es, as recited by them, must
be adm tted ; and the Kazee must scrutinize
into their characters from others. This is
according to Aboo Yoosaf. Mohammed has
said that in this case the original evidence,
as recited by the secondary witnesses, musi
not be admitted ; because the validity ol
evidence is founded entirely on the probity
of the witnesses ; and it consequently follows
that unLss the secondary witnesses explain
the probitv of the principals, their testimony
repeated by them cannot be received as valid
evidence. The reasoning of Aboo Yoosaf is.
that the business of secondary witnesses is
merely to recite the evidence of the prin-
cipals, and not to exhibit a justification ol
them, since it may often happen that they
are ignorant of the probity of the princpals.
Besides, after they have recited their evi-
dence, it is the business of the Kazee to
examine into their probity, in the same
manner as if they were actually present
The denial of the primary witnesses annuls
the attestation. — IF the principals deny the
evidence recited on their part by the ccond-
aries, the evidence of the secondaries must
not be admitted, became of the want of
proof, from the contradiction which subsists
between them and the principals.
// the attesting mi tn esses have not a clear
personal knowledge of the defendant, the
identity must be proved by other witneses.—
If two men bear testimony to the evidence
of two others, to this effect, that "a certain
woman, the daughter of a native of Samar-
cand, has made an acknowledgment of one
thousand dirms in favour of Zeyd," — and
these secondary witnesses further declare,
that the principals had informed them, that
they knew the person of the woman,— and
the plaintiff produce a woman, and the se-
condary witnesses declare that ''they do not
know whether she is the woman in question
or not," — in that case the plaintiff must be
desired to produce two witnesses to testify
the woman's identity ; for here the evidence
of the witnesses tends to prove the claim
upon an ur certain person, whereas the plain-
tiff claims his right from a person specific
and present ; and hence a doubt arises, to
remove which it is requisite to ascertain the
person.
And so also, with respect to the limits of the
claim. — ANALOGOUS to this is a case where
two witnesses be r testimony the two evidence
of two others, that " a certain person sold a
pi**ce of ground circumscribe 1 by particular
boundaries, and the price is due by the pur-
chaser ; " — for here it is requisite to produce
two other witness s to attest that the said
ground, circumscribed by the said boundaries,
had been delivered over to the purchaser,
who is the defendant ; — and in the same
manner also, it is requisite to produce two
other witnesses, in case the defendant deny
that the b. undaries of the ground he had
purchased are the same with those described
in the evidence of the witnesses ; to the end
that these additional witnesses may bear
evidence that those boundaries were the
same with those of the ground ir« the pos-
eision of the purchaser.
The identity of a person affected by *
Kazee's Utter must be proved.— THE law is
exactly the same with regard to the letters
of one Kazee to another : — as where one
Kazee writes to another, th.u 'two wit-
nesses have given evidence that a nebt of
one thousand dirms is due to a certain per-
son; the son of a certain person, of a certain
family, by the daughter of a certain person
of a certain family, and that he must pass
a decree for the said daughter's payment of
the said sum ;" for here, if the plaintiff,
after delivering the letter to the Ka/.ee to
whom it is addressed, produce a woman, the
Kazee, before he passes the decree must,
desire him to bring two witnesses to attest
that she is the same woman as described in
the lette of the other Kazee,— It is to be
observed that if, in either of these cases
(namely, attestation of evidence, or of the
letters of one Kazee lo another), in the sp-
cification of the family of the woman, the
witnesses make use of the term Tameemia,
it is not valid ; it being necessary to specify
, some nearer and more particular branch to
i which the woman is related, in order that
a particular knowledge may be acquired,
which cannot be done in case of the specifi-
cation of so general a branch a* trvt of
372
EVIDENCE.
[VOL. II.
Tameen, whose descendants .re mnum ra-
ble.— It is the opinicn of some <1 M the \ < re
Farghania implies a general and Au?cl andia
a particular family —Some, al o, thiik that
the words Samarcandia or Bokhana ;<jc
general ; and some have said that the ref- -
rence to a small lane is particular, and to a
strtet or city general.— It is to he observed
that, according to the Zahir Rawayet, the
opinion of Haneefa and Mohammed (in oppo-
sition to that of Aboo Yoosaf) is that descrip-
tion is rendered complete hy the specification
of the grandfather ; but that the ipecifica-
tion of the particular family (which is termed
Fakhiz*) is equivalent .to the mention of the
grandfather ; since it is the name of a dis-
tant progenitor, which is equivalent to a
nearer one,
Section.
A f Ise witness must be stigmatized —
HANEEFA is of opinion that a false witness
must be stigmatized,! but not chastized
with blows. The two disciples are of
opinion that he must be scourged and
confined ; and this is also the opinion of
Shafei. The arguments of the two discipUs
upon this point are twofold. — FIRST, it is
related of Omar, that he caused a false
witness to be scourged with forty stripes, and
to have his face blackei.cd with the soot of a
pot, SECONDLY, false testimony is a great
crime, of which the evil results to others
and as no stated punishment has been
ordained for it in the LAW, it must therefore
be punished by Tazeer, or discretionary
correction. The arguments of Haneela are
also twofold —FiRST, Shirreth stigmatized
a false witness, but did not scourge him,
SECONDLY, prevention of the crime in future
mty b« effected by stigmatizing, and it
ought therefore to be adopted as sufficient ;
for were beating or scourging enjoined in
such cases, it might operate to the conceal-
ment of the crime, and the consequent de-
struction of the rights of others ; — in other
words, as being a grievous punishment, the
fear of it might deter false witnesses from a
confession of their falsehood. With regard
to the relation concerning Omar, it evidently
alludes to the inflicti- n of punishment on a
criminal, as appears by the number of
sir pes (namely forty), and the blackening
of the countenance.
Mode of stigmatizing a false witness. —
THE mode of stigmatising a false witness, as
* To understand the whole of this passage,
it is proper to remark that of tribes among
the Arabians there are six degrees, I. Shooab,
Ii. Kabeela, III Fazeela, IV Omara, V.
liatn, VI. Fakhiz ;— in which last are in-
eiuded the nearest kindred. (Richardson's
Dictionary.)
f Arab, YewhashirOjfrqm tash-hecr, which
literally signifies exposing in public ; a mode
of punishment somewnat similar to the
stock or pillory.
prescribed by Shirreeh, is this.— If the
witness be a sojourner in any pv blic street
or market-place, let him be rent to that
street or market-place ; or, if otherwise, let
him be sent to his own tribe or kindred,
after the evening prayers (as they are gene-
rally assembled in greater numbers at that
time than any other) ; — and let the sticma-
tize inform the people that "K^zce Shir-
reeh salutes them, and informs them, that
he has detected this person in giving false
evidence ; that they must therefore beware
of him themselves, and likewise desire
others to beware of him." Shimsal Ayma
has said that a false witness ought also to be
stigmatized, according to the two disciples;
and that the degree of correction and im-
prisonment ought (according to them) to be
left to the discretion of the Kazee —(The
nature of discretionary correction has been
already explained under the head of Punish-
ments) It is related in the Jama Sagheer
that if two witnesses confess that they have
given false evidence, they must not be
scourged. The two disciples maintain that
they are to be scourged at the discretion of
the Kazee.
BOOK XXII.
OF RETKACTION OF EVIDENCE.
Evidence retracted before a decree is void,
— IF witnesses retract their testimony prior
to the Kazee passing any decree, it becomes
void (that is to say, the Kazee must not pass
any decree vipon it) ; for the right of the
claimant c^nfiot be established but by the
decree of thfe Kazee ; and the Kazee cannot
pass a decree upon contradictory testimony a
and in this case the witnesses are not liable
to make atonement, since they have not oc-
casioned any injury to either of the parties.
But not if retiactid after a decree has
passed — IF on the contrary, the Kazee pass
a decree, and the witnesses afterwards retract
their testimony, the decree is not thereby
rendered void ; because, although the first
allegation on which the decree passed be
contradicted by the latter, and although the
first and the last in point of credit stand upon
an equal ftoting. yet the first, because of the
sentence of the Kazte having parsed in con-
formity to it, acquires a superiority which
prevents its annulment. — In this case, how-
ever, the witnesses are bound to atone for
the injury they may have occasioned by their
false testimony ; for they themselves acknow-
ledge a thing which is the cause of responsi-
bility ; and contradiction is no bar to the
validity of acknowledgment, as shall be
hereafter explained,
The retraction must be made in open court.
— THE retraction of evidence is not valid,
unless it be made in the presence of the
Kazee : because, being a destruction of evi-
BOOK XXII.]
RETRACTATION OF EVIDENCE
373
dence, it must consequently be restricted to
that place which is particularly appointed
for the reception of evi dene •,— namely, the
assembly of the Kazee (that is to say, of any
Kazee whatever). Besides, retractation of false
evidence resembles repentance of a crime* ;
and repentance of a crime, if committed pri-
vately, must be performed privately, and if
committed openly, must be performed openly.
— As, therefore, retractation of evidence is not
valid, unless made in the assembly of the
Kazee, it follows that if the defendant should
ever that the witnesses had retracted their
testimony somewhere out of the assembly of
the Kazee, and should either require that an
oath to this effect be administered to them in
the assembly of the Kazee, or offer to pro-
duce witnesses there to prove his assertion,
yet neither would the oath be a ministered
to those witnesses, nor would the evidence he
offers to produce be accepted, since the plea
on which he proceeds (namely, an invalid
retractation) is of no effect. If, on the con-
trary, his plea be of an effecutal nature (as
if he should assert that the witnesses had re-
tracte- their testimony before a certain
Kazee, who had in consequence passed a
decree for their making reparation), the evi-
dence he offers must be admitted, because he
in this instance grounds his plea upon a valid
retractation.
Witnesses retracting their testimony after
a decree has passed must make a compensa-
tion to the suffering party. — IF two wit-
nesses bear testimony that a particular sum
is due by a certain person to another, and
the Kazee accor ingly pass a decree for the
payment of it, and the witness afterwards
retract their evidence th:y are in that case
responsible to that person for the sum de-
creed against him ; for whoever, by a trans-
gression, performs an act destructive of
another's property, becomes respjnsible for
the same (in the same manner as the digger
of a well on the high road) ;*— a d in this case
the witnesses have been guilty of a transgres-
sion in giving false evidence, which occasioned
the loss of the defendant's property. Shafei
maintains that they are not responsible ; for
they, in fact, only produce the cause of the
destruction, and that is not regarded where
those are present who actually worked the
destruction, namely (in the present instance)
the Kazee and the plaintiff. In reply to this,
our doctors argue that to impose the respon-
sibility, in the case in question, upon the
actual operator of the destruction (namely,
the Kazee) is impracticable ; because, in
passing the decree, he acted as it were from
necessity ; and also, because, if a Kazee were
thus liable to responsibility, on one would
•If a person dig a well in the high road
(where no person is entitled to dig a well,
and which is of course a transgression) he is
liable to a fine for any accident which may
happen by people falling into it, &c. This
is fully explained in treating of Fines.
accept the office of Kazee, from an apprehen-
sion of being subject to such penalties. — In
the same manner also, it is impracticable to
exact the compensation from the plaintiff,
because the decree of the Kazee takes effect
independent of him. In this case, therefore,
regard is necessarily had to the producer of
the cause.
Provid d the decree had been actually en-
forced against him. — IT is to be observed,
however, that the witnesses do not become
responsible unless the plaintiff obtain pos-
session of the property in question, whether
it be substance or debt ; because the destruc-
tion of it is not established until after the
seisin of the plaintiff; and also because the
defendant is not, until then, subjected to
anything except the mere obligation of debt,
whereas what he is to take from the witnesses
is actual substance ; and it is not lawful to
tak: substance as a compensation tor the
mere obligation of a debt, since compensation
can only be made in a similar, and there is
no similarity between debt and substance.
If one witness thus retract, be atones for a
moitv of the damage. — IF, in the case in
question, only one of the witnesses retract
his evidence, he becomes responsible for a
half of the property : for it is a rule that
where part of the witnesses retract, the right
shall remain established so far as relates to
the remaining witnesses.
And the same of any number who may
retract, where one witness perseveres in his
testimony. — HENCE if three persons give
evidence concerning property, and one of
them afterwards retract his testimony, he is
not subject to any responsibility, because the
whole of the right remains established in
virtue of the two remaining witnesses The
reason of this is that the right of the claimant
is established because of the complete proof,
namely, the testimony of two witnesses. If,
however, another of those three witnesses
afterwards retract his evidence, the two re-
ceding witnesses are in that case responsible
for one-half of the property, since, in virtue
of the existence of one witness, one- half of
the right remains in force.
Cases of retractation where the witnesses
consist of both males and females. — IF one
man and two women give evidence, and one
of the women afterwards retract her testi-
mony, she is liable for one-fourth of the
righ* because in conseqvu nee of the exist-
ing evidence of one man and one woman,
three-fourths of it still remain in force If,
also, both the women retract their testimony,
they are responsible for an half, since in
virtue of the existing testimony of one man
an half of the right remains in force.
IF one man and ten women give evidence,
and eight of the women afterwards retract,
those eight are not liable to any compensa-
tion, since the remaining evidence furnishes
complete proof. If, on the contrary, nine of
the women retract, those nine are responsible
for a fourth, since the remaining evidence oi
one man and one woman establishes three
374
RETRACTATION OF EVIDENCE
VOL. II:
fourths of the right. If, in the case in ques-
tion the whole of the witnesses retract, the
man is in that case responsible for one- sixth
of the right, and the ten woman for five-
sixths, according to Haneefa. Aboo Yoosaf
holds that the man is liable for an half, and
the ten women for an half ; because, although
they greatly exceed in point of number, yet
th?y are in fact only equivalent to one man,
since their evidence is not admissible unless
it be in conjunction with that of a man.
Hmtefa, on the other hand, argues that the
evidence of every two women i > equivalent
to trnt of one man ; because the Prophet, on
account of the weakness of their understand-
ing, has ordained that the evidence of two
women shall be equivalent to that of one man
Hence, in the case in q icstion, it is the same
as if six men had given evidence and had
afterwards retracted it. —If the ten wonnen
retract, and not the man, they, are respon-
sible for an half of the right, according to all
our doctors, in conformity with the rule be-
tore-mentioned.
IF two men and one woman give evidence
in a matter of property, and all of them
afterwards retract, the whole of the respon-
sibility rests on the two man, and none on
the woman, because one woman is no more
than half of a witness, whence the law
regards not her in this case, inasmuch as no
effect results from the mere part of a cause.
The retraction of evidence to a mar-
riage and proper dower does not subject the
retractors to any responsibility — IF two wit-
nesses give evidenje concerning a woman,
of her being married on a Mihr Misl, or
proper dower,* and afterwards retract their
testimony, they are not bound to make any
compensation ;f and so likewise, if they
testify to any thing short of the proper
dower ; because the advantage to be derived
from the woman's person is not an article of
value where it is lo^t to her by false evidence ;
for compensation, in case of the destruction
of any thing ; implies the return of a similar ;
and there is no similarity between substantial
property and the connubial enjoyment
IF two witnesses give evidence concerning
a man, of his having married a woman on a
proper dower, and afterwards retract ihe
same, still they are not bound to make any
compensation, although by their testimony
they have destroyed the property of that man :
because the destruction in this instance is
attended with an equivalent, inasmuch as
the connubial enjoyment is considered as an
article of value, whenever it becomes the
right of any one ; and destruction attended
with a consideration or equivalent, is the
same, in effect, as no destruction. The
*This case supposes that the woman
claims a stipulated dower, greater than her
proper dower, and that the husband endea-
vours to resist her claim by evidence.
fThat i*. they are not to compensate for
tdhe itTerence.
ground of this is that responsibility is
founded upon similarity Now there is no
similarity between destruction with an ex-
change and destruction without an exchange.
If, therefore, in the case in question, a
compensation were taken from the witnesses,
it would be a destruction of their property
without any thing in return — If, however,
the witnesses were to testify to any amount
beyond the proper dower, and afterwards
retract, they are in that case responsible for
the excess, -as having destroyed that much
without any consideration in return.
l~he retractation of evidence to a sale does
not occasion responsibility, unless the price
had been attested short of the value. — IF two
witnesses bear evidence to a sale for a price
tantamount to, or greater than, the value
of the thing sold, and afterwards retract,
they are no in that case liable to any
compensation ; since destruction attended
with an equivalent is, in effect, no destruc-
tion.— If, on the contrary, they should give
evidence of the sale for a price less than the
value, they are in that case responsible for
the deficiency of value, because, in that
amount, they have occasioned a destruction
without any equivalent. The law here
applies equally to sale with or without an
option to it e seller ; because, in the case of
an option, the cause of right of property is
the original sale, and not the determination
of the option. — The effect, therefore, is
referred to the sale, upon the determination
of the option ; and hence the destruction is
referred to the evidence of the sale.
Witnesses retracting their evidence to
divorce before consummation are liable for
half the dower.- IF two witnesses give
evidence of a man having divorced his wife
prior to consummation, and afterwards retract,
they are in that case responsible for a moiety
of the dower ; because they have established
upon that man a thing which stood within
the possibility of dropping (in other words,
which might perhaps have been altogether
conceited, by the wife' apostatizing from the
faith, ^r admitting the son of her husband to
carnal connexion*) ; — and also, because sepa-
ration prior to the consummation is equiva-
lent to an annulment of the marriage, and
therefore annuls the whole of the dower, as
has been already explained f but afterwards
the half ot the dower is established de novo-
in the manner of a Matat or present, J and
hence the said half is rendered due by the
testimony of the witnesses.
Witnesses retracting their evidence to manu-
umission are liable for the value of the slave.
— IF witnesses attest that a certain person
had emancipated his slave, and afterwards
retract their testimony, they are in that case
responsible to the person in question for the
value of the said slave, because of their
*Vol. I. p. 66.
fVoi. I. p. 52.
JVol. I p. t5.
BOOK XXII.]
RETRACTATION OF EVIDENCE.
375
having destroyed his property in the sjave j
without any equivalent in return. —Thj right
of Wuh, moreover, with respect to the *1 .ve
ivsts with that pers m and with the witnesses;
because as the emancipation of the slave is
not, on account of the responsibility, ascribed
to their testimony, it follows rhat rhj Wiila
i Iocs not go to them
Witnesses retracting in. a case of retalia-
tion dn> liable to a fine, but not tu retaliation.
—IF two witnesses bear evidence against a
person, in a case of retaliation f« r murder,
and then retract their testimony after the
person has been put to death, they are in
that case bound to pay Ueeyat, or fine of
blood, but are not to suffer death by way ot
icU'iation, Shafei maintains that they are
ui suffer death; since they were the efficient
cause of death, inasmuch as the retaliation
was executed on the strength as their
evidence : and they therefore resemble a
Mokrih. or compel ler (in other words, they
compel); the comnv'ssion of murder— nay,
they are still more criminal than a Mokrih,
ma&much as i the avenger of blood in a case
of murder, is aided in bringing the murderer
to justice ; whereas a person under compul-
sion is prohibited, by the LAW, from putting to
death * The reasoning of our doctors is
that the witnesses, in this case, cannot be
considered either as actual perpetrators, or
as instrumental causes of the bloodshed ; for
nothing can be considered as a case except
such a thing as presses upon, and joins to.
the agent ; and the testimony of the witnesses
cannot be considered in this light, since, not-
withstanding they furnish legal groun.ls for
the retaliation, yet pardon and forgiveness
being benevolent acts the probable conse-
quence is that the avenper of blood will par
don the person against whom they bore evi-
dence. It is othi rwis in a case of compul-
sion ; for the person compelled is induced to
execute the murder with a view to save his
own life, which the compeller threatens to
take from him in case of his refusal ; where-
as, in the case in question, there is no com-
pulsion on the avenger of blood to execute the
retaliation : on the contrary, he is at free
liberty either to pardon the other, or to
execute the retaliation : and where a man
acts from free liberty, and not from any
necessity , the cause of his actions cannot be
ascribed to the witnesses ; at least, it must
be allowed that there is a doubt with respect
to their being the cause ; and the existence
of a doubt is preventive of retaliation. The
Dee y at, or fine of blood, however, takes
place : because that is a matter of property,
and, as such, may be established, notwith-
standing any doubt which may happen to
attend it.
Secondary witnesses retracting their attes-
tation are responsible for the damage ; but
•This will be more fully and clearly under
stood by a reference to the article Ikrah, or
Compulsion.
the primary witnesses are not responsible if
y retract or disavow - IF secondary wit-
nesses* retract their evidence, they are
rerponsible ; since the destruction of the
defendant's property if inferred to them,
Because of their giving evidence in the
a sembly of the Kazee, It on the other
':iand the primary witness retract, alleging
:hat they had not authorized the secondary
witnesses to attest their evidence they are
not responsible, since they deny the evidence
which occasioned the des ruction of the pro-
perty cii the defendant In this case, more-
over, the decree oftne Kazee, occasioned by
this testimony i« not rendered null, since the
denial of <ho primary witness*-* is susceptible
of doubt (that is, it may either be fake or
rue) and the decree of the Kazee cannot be
reversed by a dubious circumstance ; in the
•jame manner as it cannot be reversed by
ibe retraction of evidence, after it has passed
on the strength uf that evidence, — It is other-
wise where the primary witnesses make tne
lenial prior to the pa&s ng of a decree ; be-
cause in that case the Kazee would not piss
the decree on the strength of the evidence of
he secondary witnesses —If, however, the
primary wi 'nesses avo-v that they had
authorized the evidence of the secondary
witnesses but that th-y had committed an
error in so doing, they are in that ca^e re-
{•ponsibld for the loss that miy have been
occasioned. — This is according to Mohammed
— The two elders are of opinion that, even in
this case, the primary witnesses do not be-
come responsible ; since the decree of the
Kazee passed upon the evidence of the
secondary witnesses, from the necessity
under which the Kaz»re lies of proceeding on
the proof before him, which in this case is
the evidence of the secondary witnesses. —
The reasoning of Mohammed is that the
secondary wit .esses do only lepeat the evi-
dence of the principals: and heiue it becomes
in effect the same if the principal wi.nesses
were themselves present
Case uf retractation by both primary and
secondary witnesses- -IF both the primary
and the secondary witnesses retract their
evidence, the two Elders are in that case of
opinion that compensation is due only by the
secondary witnesses, because of the decree
having passed on their evidence. Mohammed,
on the contrary, is of opmio , that ihe de-
fendant has the option of taking the com-
pensation either from the principal or the
serondary witnesses ; because (according to
the doctrine of the two disciples) the decree
passed on the evidence of the secondaries, —
or (according to his own doctrine) it passes
on the evidence of the principals: and hence
the defendant has the option of t. king the
compensation from whomsoever of the two
he pleases; — but as originality and depen-
dancy are of different natures, it is not per-
•Meaning witnesses who attest the evi-
dence of other witnesses. (See ^hap. V nf
the preceding book,)
376
AGENCY
[VOL. II.
mitted to unite both the principals and the
secondaries in the payment of the compensa-
tion, that is to say, the defendant cannot
take it from both.
The secondary witnesses asserting the false-
hood error of the primary witnesses is of
no effect. — IF, in the "above case, the secon-
dary witnesses assert that the orimary wit-
nesses had either been guilty of falsehood,
or had committed an error in their evidence,
the Kazee must not attend to this assertion,
because his decree; as having passed and
issued, cannot be affected by any assertion of
theirs, And in this case the secondary wit-
nesses are not liable to any compensation,
since they teey have not retracted their own
evidence, but have merely repeated the
evidence of the principal witnesses, notwith-
standing they had retracted it.
Purga tors receding from their justification
are responsible. — IF purgators recede from
their justification, they Become responsible,
according to Haneefa, — The two disciples are
of opinion that they do not become respon-
sible, because they have merely performed a
generous action in behalf of the witnesses,
and therefore resemble witnesses who bear
evidence to the marriage of a person accused
of whoredom,* and who, in case of retracting
their evidence after the stoning of the person
to whom it related, do not become respon-
sible for the fine of blood. The reasoning
of Haneefa is that justification is the cause
of credit given to witnesses, inasmuch as the
* Literally, "who bear evidence to Ibian,"
(See Vol. I. p. 17).
Kazee proceeds not upon the ^evidence itself,
but upon the justification of it — Hence the
justification is, in effect, the moving cause of
the decree. — It is otherwise with witiesses to
the marriage of a person accused of whore-
dom, because in that instance the circum-
stance of the ac:used being a married person
is particulary essential to induce lapicla-
tion.
Case of retractation in suspended manu-
mission or divorce. — IF two witnesses give
evidence of a Yameen (or susp nsion on a
condition) of divorce or emancipation, and
two other witnesses give evidence that the
condition had taken place, and both parties
afterwards retract their evidence, c6mpensa-
tion is in that case due only by the witnesses
who attested the deed of Yameen, whi« h is
the cause of the damage, and not by tho.^e
who attested the occurrence of the event on
which the divorce or ermncipation was sus-
pended , because the decree of the Kazae
proceeded on the evidence to the deed, and
not on the evidence to the condition. — If
only the witnesses to the occurrence of the
condition retract, there exists in that case
a difference of opinion amongst the Hanee-
fite doctors.— It is to be observed that by
the divorce here mentioned is to be under-
stood divorce before consummation ; for in
a case of divorce subsequent to coosumma-
tion neither party of the witnesses are liable
to make compensation, because the wife's
right to her dower is established by .the con-
summation,*
* See Vol. I, p. 44.
END OP THE SECOND VOLUME.
VOL. III.
BOOK XXIII.
OF AGENCY
Chap. I.— Introductory.
Chap. II. — Of Agency for Purchase and
Sale.
Chap III. — Of the Appointment of
Agents for Litigation, and for Seisin.
Chap. IV, — Of the Dismission of Agents.
CHAPTER I.
A person may lawfully appoint another his
Agent , to act on his behalf, in contracts. — IT
is lawful for a person to appoint another his
agent, for the settlement in his behalf of
every contract which he he might have law-
fully concluded himself, such as as sale, mar-
riage, and so forth ; because, as an individual
is sometimes prevented from acting in his
own person, in consequence of accidental
circumstances (such as sickness, or the like),
he ic therefore admitted, of necessity, to
appoint another his agent, in order that that
person may expedite his wants by means of
the powers which he derives from such
appointment. It is, morever, related in
the Nakl Saheeh, that the Prophet appointed
Hakeem-Bin-Khiram his agent for purchase,
in order that he might buy for him a camel
to sacrifice; — and likewise, that he appointed
Amir-Bin-Aum his agent for marriage, that
he might conclude a marriage betwixt his
mother and the Prophet.
BOOK XXIII.— CHAP. I].
AGENCY
377
And for the management of suits, or
criminal prosecutions ; or for the payment
or exaction of all rights except retaliation or
punishment. — IT is lawful for a person to
appoint another his agent for the manage-
ment of a suit relative to any rights what-
ever (even to corporal punishment or
retaliation), for the reasons already alleged ;
and also, because every person is not himself
capable of managing a business of this
nature — It is moreover recorded, in the
Nakl Saheeh, that Alee appointed Akeel his
agent for the management of his suits, and
that when Akeel became old he dismissed
him, and appointed Abdoola Bin-Jafir — In
the same manner, also it is lawful to
appoint an agent for the payment of rights,
or the exaction of them : excepting, however,
in cases of punishment or retaliation, the
appointment of an agent in which (as if an
agent were appointed to exact those in the
absence of his principal) is invalid ; because
punishment or retaliation are remitted in
the existence of a doubt ; and the absence of
the principal creates a doubt ; nav, the for-
giveness of the prosecutor is probable in such
a circumstance, for this reason, that it is
praiseworthy and laudable to pardon : con-
trary to where the witnesses only are absent
[from the execution], as their non -retrac-
tation is most probable : and contrary, also,
to where the prosecutor is present, as in this
case there is no apprehension of his having
forgiven.
OBJECTION. — In case of the presence of the
principal, what necessity exists for the
appointment of an agent?
REPLY. — Even in such case there may be
a necessity for the appointment of an agent ;
because, as every person is not perfectly
acquainted with the mode of exacting those
rights, it follows that if the principal were
debarred from the appointment of an agent,
the door of exaction might be altogether
closed.
WHAT is here advanced is according to
Haneefa, — Aboo Yoosaf alleges that agency
for the establishment of corporal punish-
ment or retaliation* (as if the agent should
produce the witnesses) is not lawful, — The
opinion of Moha med coincides with that oJ
Haneefa. — Some, however, maintain that he
agrees with Aboo Yoosaf —Others, again,
say that this disagreement subsists only in
case of the absence of the constituent, and
not in case of his presence : for, in this case,
the agency is legal according to all ; because
the words of an agent in the presence of his
constituent refer entirely to the latter. — The
argument of Aboo Yoosaf upon this point is
that the appointment of an agent is the crea-
tion of a deputy, in which there is always
room for doubt respecting the deputation
and as, in criminal prosecutions, every doubt
must be avoided, it follows that the appoint
*In other words, for conducting a crimina
p rosecution.
ment of an agent for prosecution is invalid,
n the same manner as for the exaction of
unishment ; and that it cannot be admitted ;
n the same, manner as evidence to evidence,
especting the prosecution, is not admitted. —
The argument of Haneefa is that prosecu-
ion is merely a condition of the exaction of
he right ; because the necessity of the
mnishment is founded, not upon the pro-
ecution, but upon the criminality, which is
endered manifest by the evidence of the
witnesses : and hence agency is admitted in
his case, in the same manner as in that of
other rights A similar disagreement sub-
ists with respect to the case of a man against
whom an action inducing corporal punish-
ment or retaliation lies, and who appoints an
agent for the management or his defence.
A person under accusation may employ an
agent to conduct his defence, — THE doctrine
of Haneefa, however, is preferred in this
instance, because the agent may make replies
and rejoinders ; and the doubt with respect
to deputation (as before mentioned) does not
prevent this. — If, however, the agent should
make a confession, it is not to be admitted
against his constituent, because there exists
a doubt of his having been authorized by his
constituent to make such confession.
An agrnt cannot be appo nt d to manage a
suit unless the constituent be sick, or absent.
— IT is not lawful, according to Haneefa, to
appoint an agent for the management of a
cause, unless with the consent of the adver-
sary, excepting where the constituent is sick
—or distant three day's journey, or
further, from the place.— The two disciples
maintain that such agency is lawful without
the consent of the adversary ; and Shafei is
also of the same opinion. This disagreement
doee not relate to the legal. ty of the agency
itself, but to the necessity which operates
upon the adversary to answer an agent to
whose appointment he has not assented ;
Aboo Haneefa being of opinion that he is
not under such necessity ; and the two dis-
ciples thinking otherwise.— The argument of
the two disciples is that the appointment of
an agent is the act of an individual in regard
to a right purely his own ; and therefore
ought not to depend on the consent of another
in the present instance, any more than in a
case of exacting payment of debt — Haneefa,
on the other hand, argues that the constituent
is himself under the necessity of giving an
answer, and must attend in case the magis-
trate should summon him : now individuals
differ with respect to their capacity of
managing suits ;— If therefore, it were ad-
mitted th*t the appointment of an agent is
absolute with respect to the adversary, this
would be injurious to the adversary ;— hence
the validity of the appointment must be
suspended on his consent :— in the same
manner as where a partnership slave is made
a Mokatib by one of the partners, m which
case it remaif.s with the other partner to
confirm the contract of Kitabit, or to break
it as he pleases ; for, although the act of tn*
S78
AGENCY
[VOL. II.
first proprietor related purely to his own
property, yet as the carrying of it into
execution mu$t have inj-.ired the right of
the other, the validity of it is therefore
suspended on his consert ; and so also in
the case in question.— It is otherwise where
the person is sick or absent, for in this case
his appointment of an agent is valid without
the consent of the adversary, since he cannot
himself be compelled to appear under such
circumstances.
Or about to travel.— It is to be observed
that in the same manner as Haneefa holds
the appointment, in this particular, of an
agent by an absent person to be valid, so
also does he hold the appointment by one
who is immediately about to travel.
A woman may appoint an agent for liti-
gation in all cases. — A WOMAN who remains
in privacy, and is not accustomed to go to
the court of the Kazee, ought (according to
Aboo Bekir) to appoint an agent for the
management of her cause ; and acquiescence
is incumbent on her adversary — This doc-
trine has been adopted by our modern
lawyers ; and decrees are passed accord-
ingly*
Agency to be valid, must proceeed from
a competent constituent— - THE validity of
agency, in any business, rests upon two
conditions : — FIRST, that the constituent be
himself legally empowered to perform the
business for the execution of which he has
appointed another (for, as the agent derives
his competency from the constituent, it is
necessary that the constituent should him-
self be competent, before he confer the
capacity on another)
And must be vested in a person of un-
derstanding.— SECONDLY, that the agent be
of sound understanding, in such a degree as
may enable him to kno.v and execute the
business to which he has been appointed. —
If, therefore, a person appoint a child or an
idiot his agent, it is invalid; whereas, if a
freeman, who is adult and of sound judg-
ment, appoint his fellow* his agent,— or, if
a privleged slave appoint his fellow his
agent, it is valid.
A Mahjoor slave, or an infant (capable oj
understanding) may be appointed an Agent —
IF a person appoint an infant who under-
stands purchase and sale, or a Mahjoor (or
inhibited) slave, to be his agent, it is in
either case valid. The rights of the contract,
however, do not appertain to them but to
their constituent. — The reason of the vali-
dity of the appointment is that the infant
is capable of explanation ; and therefore
his act is held to be valid, when done with
the permission of his guardian ; — and the
slave it capable of acting, and is the master
of his actions when they relate to himself,
though not if they relate to his master ; but
agency for another does not relate to his
•Meaning, one who resembles him in
th se points.
master the appointment of t^e infant or
slave, therefore, is valid.
But the obligations they enter into an not
binding upon them, but upon their consti-
tuent.— They are neither of them, however,
capable of performing the obligations of the
contract : —the infant, because of his want
of competency ; and the slave, because it
would interfere with the rights of the
master ; — the performance of the contract,
therefore, rests with the constituent. — It is
related as an opinion of Aboo Yoosaf, that
if an infant, or a slave, as above described,
should make a sale, and the purchaser, beimj
ignorant of their situation, should after-
wards be informed of it, in that case it is
in his option to annul the con tract, —be-
cause having concluded the bargain on a
supposition that they were competent to fulfil
the rights of it, and being afterwards in-
formed that the rights of the contract did
not rest with them, he becomes of conse-
quence entitled to annul it in the same
manner as if he discovered a defect in
the subject of it.
Contracts concluded by agents are either
such as the agent refers to himself —THE
contracts concluded by agents are of two
kinds .-—FIRST, such as the agent refers to
himself; and which do not depend, in any
degree, on the constituent ; as in the cases
of sale or hire, which relate to the agent
and not to the constituent. — Shafei main-
tains that the rights of slave appertain to the
constituent; because the rights of a contract
of sale are dependants of the effects of it ;
and as the effect namely, right of property,
appertains to the constituent ; so in the same
manner its dependant also appertains to him ;
an agent for sale, therefore, is the same as
a messenger, or an agent for marriage. - The
arguments of our doctors are that an agent
is the contracting parly, both in reality and
in effect :— in reality, because the contiact
is formed by speech, and the speech of the
agent is authentic because he it a man :
and in effect, because, being himself com-
petent, there is no necessity for the reference
of the rights of the contract to the constitu-
ent ; whereas, if he were merely a messenger,
he would not be exempt from the necessity
of referring the rights of the contract to the
constituent, as is the case with a messenger,
—Now since such is the natureofagency.it
follows that an agent is considered as a
principal in regard to the rights of the con
tract ; and hence Kadooree, in the treatise
which bears his name, says "an agent for
sale delivers the goods and takes possession
of the purchase-money, and is liable to be
sued ^ for any defect in the subject of the
sale ;"— and, on the other hand, "an agent
for purchase receives the goods, and delivers
the price, and may sue the seller for any
defect in the goods ;' '—because all these are
considered as the rights of sale. The con-
stituent, moreover, is the proprietor of the
thing purchased through his agent, abinitio
in the same manner as when a slave accepts
BOOK XXIIL— CHAP IF.]
AGENCY
379
a gift, or catches game, or gathers fire -wood ;
in all which cases the master is proprietor
of the gift, of the game, or of the fire-
wood abinitio ; that is to say, the property
is no* held first to rest in the slave, and
then to shift to him, —This doctrine of the
primary existence of the right of property
in the constituent is approved : — contrary to
Koorokhee, who maintains that, in conse
quence of the purchase, the right of pro
perty rests originally in. the agent, and from
him hhifts to the constituent).
Or to his constituent. — SECONDLY, such as
thd agent reters the performance of to his
constituent, and in which he has an imme-
diate interest ; such as marriage, Khoola ; or
composition for wi ful murder ; in all which
cases, the rights appertain to the constituent
and not to the agent.— Hence no demand
can be made on the husband's agent for the
dower : nor can the wife's agent be required
to deliver over the dower to her husband ;
for in these cases the agent is a mere mes-
senger, and is not exempt from the necessity
of referring the performance to his consti-
tuent : for if the agent, in the case of
marriage : were to refer the performance to
himself, it would become his marriage, and
not that cf the constituent (whence the
necessity for considering him as a mere
messenger). — The reason of this is, that as
none of these contracts are o^ a nature to
aJmit of the agent first acting in them as a
principal, he is therefore obliged to refer
them to the constituent, and to act himself as
a mere messenger. — Manumission for a com-
pensation, contracts of Kitabat, and compo-
sition after denial, are all of the second
class. — With regard to composition after
alccnowledgment, it is of the first class, as
part iking of the nUure of sa e — A i agent
for the delivery of a gift, or of charity, or
for the restitution of a deposit, as being a
mere announcer, is the same as a messenger
The case is also the same with regard to an
agent for the execution of loans or pledges ;
because the effect of these (namely, the
right of property) is established by means
of the seisin of the thing given or bestowed
in charity, and so on : — and as the thing, in
these cases, belonged to the constituent and
shifts to the donee or ths other in conse-
quence of the seisin, the agent, being as it
were a mere stranger to the thing, cannot
be considered as a principal, but must be
regarded merely as an explainer or a mes-
senger.— It is otherwise in sale, because the
effect of sale is established by speech, and
the agent is the speaker. — In the same man-
ner, also, as an agent in the above cases of
executing gifts, &c , is a mere messenger, so
is an agent appointed by the petitioner (or
person to whom the gift, the charity, &c , is
given). The case is the same with respect
to an agent for a contract of co-partnership
or Mozaribat.
An agent cannot hi appointed to receiver a
loan.— WITH respect to an agent for the
receipt of a loan, the appointment is null ;
insomuch that, it a person, in virtue of such
appointment, should receive a loan, and take
possession of it, he ; and not the constituent,
would be the proprietor of it. It it other-
wise with respect to a messenger ; for the
receipt of a Joan by a messenger is lawful,
A debt contracted to on agent cannot be
exacted by his constituent —Ip a constituent,
in the case of having sold goods through his
agent, should demand payment of the price
from the purahaser. the purchaser may law-
fully refuse to comply ; because, with respect
to trie contract or its rights, the constituent
is as a stranger, since the rights of t'ie con-
tract app<-r;ai.i to the contracting party.
But if p.iyiriL'tit be made to the constituent,
it is valid. — IF, however, the purchaser pay
the price to the constituent, it is lawful ; nor
is the agent afterwards entitled to de.n*nd
it from him, since he has paid it to th-^ con-
stituent, to whom it of right belonged : —
but if the agent persist in deman ring it
fro.n him, then let him take it back fro.n
the constitu nt and pay it to the agent, an 1
let the agent give it to the constituent; a
mode in which there is evidently no a Iv 1-1-
tage to any.
And the debtor may (in his payment).
deduct a debt owing him by the constituent
— IT is to be observed that as the right be-
longs to tne constituent, the purchaser may,
in case of the constituent bein4 indebted
to him, deduct the debt fro n the price. If,
however the constituent and agent be both
ndebted to him, he is only entitled to deduct
from the price the debt of the constituent.
Or by the agent (when he alone is indebted
to him) — If, on the other hand, the agent
only bi indebted to him, he is at liberty
(according to HaneeU and Mohammed) to
deduct it from the price ; because the agent
(as they hold) may, if he please exempt
the purchaser entirely from the payment.
In either case, however (that is, whether
the purchaser make a deduction on account
of the debt due by the agent, or whether
the agent exempt him entirely), the agent is
responsible for the whole to his constituent.
CHAPTER II.
OP AGENCY FOR PURCHASE AND SALE.
Section I.
Of Agency for Purchase.
An agent must be properly instructed with
respect to what he is to purchase — WHEN a
person appoints another his a^cnt for pur-
chasing some indefinite thing, it is necessary
thjt he explain the kind and quality of the
thing or the kind and price of it ; in order
that the agent may kn^w the niture of the
act for which he has been appointed, and
thence become capable of executing it.
Except where his powers are general — IF,
however, a person appoint another in abso-
AGENCY
(VOL. III.
lute agjnt, by siying to him, "purchase for
me whatever thing you may judge advisable."
in that case the explanation or tie kind, &c.,
is unnecessary, because the constituent, in
this instance, charges the agent with a dis-
cretionary care of his interest ; and whatever
he may then purchase is considered as in
obedience to his order. — In fact a small degree
of uncertainty in agency (such as an uncer-
tainty of the quality) is of no consequence,
according to a favourable construction of the
law ; because agency is founded on liberal
principles ; and making an explanation of
the quality ari essential would b<; a restraint
upon it.
An agency is invalid whe>e the terms in
which it is expressed have a great degree of
uncertainty with respect to the subject o/it.
— IF the constituent, in the appointment of
his agent, should use a word applicable to a
variety of general kinds, such as animal,— or
a word which serves to express a variety of
meanings, such as Dar,* — in this case the
appointment of agency is invalid, even al-
though the constituent may have specified
the amount of the price ; for articles of each
kind may be purchased for the same price ;
and it is not known which kind the consti-
tuent wishes. — Hence the agency in this case,
on account of the great degree of uncertainty,
becomes impracticable, if, also the word
used be applicable to a variety of species, the
agency is invalid, unless the constituent spe-
cify the price, or define the species, though
he should not mention the goodness or bad-
ness of the quality. If, however, he specify
the price, or define the quality, the agency is
valid, because the specification of the pric
leads to a knowledge of the species ; and the
mention of the species leaves only the uncer-
tainty of the quality, which is considered a
degree of uncertainty s> trifling as not to
prevent the execution of the agency. Thus,
if a person constitute another his agent for
the purchase of "a slave, whether male or
female ;" the agency is invalid, because "a
slave whether male or female/' applies to a
variety of species. If, however he explain
the particular species (such as Turkish, Abys
smia% Indian, or of a mixed decent) the
appointment is valid. — in the same manner,
also, the appointment is valid where the price
only is specified, because in that case (as was
before explained) a small degree only of un-
certainty remains. It is recorded in the
Jama Sagheer, that if a person desire another
to purchase for him cloth, or an animal, t or
a house, the agency is invalid, because of the
great degree of uncertainty ; as the term daba
(for instance) means every animal that moves
on the face of the earth, al though in common
acceptation, it signify either a horse, an ass,
or a mule ; — in the same manner, cloth is a
generic term, applicable to a variety of species
•This word signifies a house, a stake, and
a variety of other meanings.
|Arab. Deba.
/ from the finest silks to the coarsest sheet of
cotton ; and the term house is applied to
things which (with respect to species) are
conspicuously different from each other,
from a variety of causes, such as neigh-
bourhood, the abundance or paucity of
rights and privileges, or the situation in par-
ticular lanes or cities ; from the great uncer-
tainty in all these cases, therefore, the agency
is invalid.
Unless in case of subsequent explanation.
— BUT it becomes valid in case of an explana-
tion of the price of the house, or the species
of the cloth or animal.
A power to pu chase taam [food] is re-
stricted to the purchase of wheat or flour. —
IF a person give another a hundred dirms,
and say to him "buy for me, with these
dirms, food ;" in that case the word food is
construed to mean wheat, or the flour of
wheat, on a favourable construction. — Ana-
logy would suggest the meaning to be any
kind of food whatever ; according to the real
import of the word. — The reason for a more
favourable consi ruction, in this particular,
is that the word taam [foo I], when used in
purchase and sale, means (according to
general custom), wheat and the flour of it ;
and as general custom must be preferred to
mere analogy, the law, for that reaso.i, in all
cases of purchase and pale construes the word
taam [food] to mean wheat, or ihe flour of
it —Some have said that if the constituent,
in this case, give many dirms (ten, for in-
stance), then the word food is construed to
mean wheat : if, on the other hand, he give
a few dirms (three, for instance) it is con-
strued to mean bread made of wheat ; and if
a middle number (such as seven), it is con-
strued to mean the flour of wheat
An agent may return goods purchased by
him to the seller on account of a defect. —
IF an agent, after purchase, discover a defect
in the goods, he may then return them to
the seller ; because the rejection of the sub-
ject of sale on account of a defect is one of
the rights of a contract of sale ; and the
agent, as being one of the contracting par-
ties, is entitled to all the rights of the con-
tract.
But not after having delivered them to his
constituent. — THIS, however, is only where
the agent has not delivered over the goods to
his constituent ; for, after that, he cannot re-
turn it to the seller unless by permission of
the constituent ; because, after delivering the
goods bought to his constituent, his agency
ceases ; and also, because, if he w>re then
permitted to return the goods to the seller
without the consent of the constituent, the
seisin made by the constituent in his own
behalf would be set at nought.
A right of pre-emption may be enforced
against an agent before delivery to his cone
sittuent ; but not afterwards. — (Ir is to be
observed that as, previous to the delivery of
the goods to the constituent, the rights of the
contract rest with the agent, and cease an 1
expire after the delivery, it follows that it" a
BOOK XXIII. -CHAP II ]
AGZNCY
381
person claim his right of Shaffa* in a hou e
purchased by an agent, he has a right to sue
the agent previous to the delivery, of ihe
house to his constituent ; but after the deli-
very no action would lie against the agent.)
Agency in Sir if or Sillim is valid.— IF -
person appoint an agent for executing a con
tract of Sirf or Sillim f it is valid; becaus.
the constituent being himself competent to
these contracts may lawfully (on the prin
ciples already explained) empowe- another
to execute them on his behalf It is to be
observed, however, that ihe Sillim here men-
tioned means a purchase by way of Silli<u
(or advance), and not a sale by that mode ;
because, if a sale of that nature were allowed
by agency, it would necessarily follow that
the agent must himself become liable fora
particular article in lieu of a price which he
has not received — It is likewise to be o >-
served that if, in either of these cases (that
is, either the contract of Sillim or Sirf), the
agent (who is the buyer) be separated from
the seller, — previous 10 his seisin of the goods,
in the case of Sillim,— or, to the mutual
seisin of the article of exchange .n the case
of Sirf ;— the contract becomes null ; because
the ag^nt being a par^y ; his separation from
the other party previous to the seisin is ihe
cause of annulment of both contracts (con-
trary to where the constitu nt is separated
from the seller before the seisin ; because not
being himself a party, his separation is of no
consequence) — Since, therefore, he agent is
a party, it follows that his seisin and deli-
very are valid, although he be one to whom
the rights of a contract cannot appertain
(such as an infant or an inhibited slave;. It
is different with regard to a messenger in a
contract of Sillim or Sirf : for his seisin is
not valid, as his function relates to the con-
tract and not the seisin ; because a messenger
merely delivers the speech of his employer
to another ; and seisin is no way c mnected
with speech. Moreover, a speech delivered
by a messenger refers itself to the dictator of
the message ; a messenger is, therefore, not
considered as a party; a -,d hence his seisin,
as being the seisin of a stranger, is not valid.
An agent, payng for goods which his own
money, is entitled to repayment for his con-
stituent.— IF an agent for purchase pay the
price of the goods from his own property,
and obtain possession of them, he is entitled
to repayment from his constituent, for two
reasons.— FIRST, he stands as a seller, and
the constituent as a purchaser ; because a
virtual exchange is established between
them (whence it is that if an agent and his
constituent disagree, with respect to the
price, an oath is tendered to both, as holds
in all mutual exchanges of property for
A right of neighbourhood, which gives
the neighbour a privilege of pre-emption.—
It is fully treated of under the head of
Shaffa.
tSee Sales.
property ; and the constituent may also
return the thing purchased to the agent, on
account of any defect) : — when, therefore,
the thing purchased is duly delivered to the
constituent by the agent, the agent is entitled
t take from him the price he may have given
for it :— SECOND Y as the rights of the con-
tract appertain to the agent, and as the con-
s' ituent is informed of this, it follows that
he givi-s h s consent to the agent's payment
of the price from his own property. If,
therefore, th^ goods be lost in the hands of
the agent, aid h,: should not previously have
made a detention in his own behalf of those
goods from his constituent, the loss in thdt
case falls upon the constituent, and he be-
comes liable for the price to the agent ; J3e-
cause the seisin of the agent, so long as he
makes no formal detention of the purchase
from his constituent, stands as the seisin of
the constituent ; and therefore he is held to
have been virtually possessed of the goods
whilst the loss took place.
An agent may detain from his constituent
what he purchases, until lie be paid the price.
—AN agent is enti'led to detain from his
constituent any purchase he may have made
on his account, until he be paid the price by
him, according to what was before said, that
the agent stands as the seller, and the con-
stituent as the purchaser. — Ziffer maintains
that the agent is not entitled to detain the
puichase, as the constituent has already
made seisin of it ; because, as the seisin of
the agent is, virtually, the seisin or the co i-
stituent, it is consequently the same as if the
agent had actually delivered them over to
him : the agent's right of detention, there-
fore (in satisfaction of his claim to payment
of the price), ceases, in the same manner as
in cas3 of his actual delivery of them. Our
dociors, on the other hand, argue that the
delivery of the goods to the constituent (on
the principle of the seisin of the agent being
the seisin of the co.istituent) is a matter of
necessity ; but does not imply any consent
on the part of the agent to the relinquish-
ment of his right of detention.— The seisin
of the agent, moreover, is not the actual
seisin of the constituent ; but is rather sus-
pended.— If therefore the agent should not
detain the goods from his cmstituent, his
seisin stands as the seisin of his constituent ;
but if he detain them, his seisin is then con-
sidered as on his own behalf
But i/ the purchase perish in the agent's
hand during such detention, he is responsible.
— IF, in the case before stated, the agent
detain the purchase from his constituent,
and it perish in his hands he is answerable,
according to Aboo Yoosaf, in the same
manner as for a pledge.* — Mohammed is of
opinion that he is answerable in the same
degree as when goods, the subject of a sale,
decay, or lost, in the hands of the seller,
in which case the responsibility is for the
•That is, not at the rate of the estimated
price, but of the actual value.
382
AGENCY
[VOL. Ill
pi ice, not for the value ; — that is, the pur-
chaser is exempted from the payment of the
price ; — and such is also the doctrine of
Haneefa — Ziffer, on the contrary, is of
opinion, that responsibility attaches in the
same degree as in a case of usurpation :*
as the detention has been made without any
right. — The argument of Haneefa and Mo-
hammed is that the agent stands as the
seller of the article in question to the con-
stituent, and detains it from him in order
that he may exact payment for it ; and
consequently that the constituent stands
acquitted of the price on the decay or de-
struction of the article in the hands of the
agent — The reasoning of Aboo Yoos&f, is
that the thing in question, in the hands of
the agent, was not at first a subject of
responsibility, but became so inconsequence
of detention with a view to satisfaction for
the price ; and the same is the actual pro-
perty of a pledge : — contrary to a purchase ;
as that is a subject of responsibility in the
hands of the seller from the first and not
because of detention for the price. A con-
tract of sale, moipover, is cancelled in
consequence of the loss of the subject of it ;
but in the case in question, the original
contract between the agent and seller is not
annulled. — Haneefa and Mohammed, how-
ever, maintain that though the original con-
tract of sale be not annulled, yet the contract
which virtually subsists between the agent
and constituent is annulled, in the same
manner as if the constituent were to return
the goods to the agent on the discoveiyofa
defect.
Case of an agent purchasing, at the rate of
his instruction , a larger quantity of an article
than was specified in the instruction. — IF a
person appoint another his agent for the
purchase of ten ratlsf of flesh for one dirm,
and the agent purchase twenty ratls, for one
dirm, of that kind of flesh which is sold at
the rate of ten ratls for one dirm ; in that
case (according to Haneefa) it is incumbent
on the constituent to take only ten ratls for
half a dirm. The two disciples maintain
that it is incumbent on him to take the
twenty ratls for one dirm. In some copies
of Kadooree it is written that Mohammed
coincides in opinion with Haneefa, and that
his doctrine in the Mabsoot is not incom-
patible with it, he having only observed
there, that "the constituent ought to take
ten ratls for a half dirm." — The argument of
Aboo Yoosaf is that the constituent ordered
the agent to expend his dirm in the purchase
of flesh, under a conception of the price being
at the rate of ten ratls per dirm : when,
therefore, the agent purchased twenty ratls
for the dirm, as he appears to purchase them
on account of his constituent, he is conse-
quently entitled to take the whole ; in the
•That is, at the rate of the full value,
whatever that may be.
fA ratl is about one pound, Troy weight,
same (nann>t as where a person empowers
another to sell his slave for a thousand
dirms, and the agent obtains two thousand ;
in which case the constituent is entitled to
the whole of the sum so obtained. — The
argument of Haneefa is that the constituent
having expressly enjoined the purchase of
ten ratls, it follows that the excess must be
considered as having been purcnased by the
agent on account of himself, — and lor which
he must accordingly pay the price ; — con-
trary to where an agent, being empowered
to sell a slave for a thousand dirms, obtains
two thousand for him ; because, in this case,
the excess being in exchange for the property
of tie constituent, is consequently his right.
— Ifhowcver, the agent, were to purchase
for one dirm tw nty rat is of flesh of that
kind which is sold at the rate of twenty ratls
per dirm, the purchase (in the opinion of all
our doctors) is made by the agent for himself ;
because the object of the constituent was
evidently fat meat, and that object has not
been here obtained.
An agent cannot purchase for himself any
specific article which he is directed to pur-
chase for his constituent — IF a person ap-
point another his agent to purchase for him
som* specific article, in that case the agent
is not entitled to purchase the article for
himself ; because th.s is a breach of the
trust reposed in him by his constituent ;
and also, because it is a dismission of
himself from his appointment, which he
is not (in the opinion of some) empowered
to do, unless in the presence 01 his consti-
tu nt.
Unless he purchase it for something of a
different nature from the price specified —
IF, however, the constituent should have
specified the price of the articL, and the
agent purchase it for a price ot a different
species from that mentioned by the consti-
tuent ; or if the constituent not having
specifieJ the price, the agent purchase the
article, not for dirms, but for something
estimable by weight or measurement of
capacity.
Or through the mediation of another agent.
—OR, lastly, if the agent appoint another
agent, and that second try agent purchase
the article in the absence of the primary
agent ; in all these cases the purchase is
held to have been made on behalf of the
agent himself, and not of his constituent,
because of the deviation from his consti-
tuent's orders — If, on the other hand, the
secondary agent conclude the bargain in the
presence of the primary agent, the purchase
is in that case considered as made for the
constituent, because the wisdom and judg-
ment of the primary agent is held (in con-
sequence of his presence) to have been
exerted : and hence there is no deviation
from the orders of his constituent.
Case of agency in the purchase of an inae-
finite slave. — IF a person appoint another to
purchase for him an indefinite slave, and the
agent accordingly purchase a slave : in tha
BOOK XXIII.— CHAP II]
AGENCY
383
case the s'ave belongs to the agent himself,*
unless he declare, "I intended the pur-
chase for my constituent," — or unless he
make the purchase with the constituent's
property.— The compiler of the Hedaya
remarks that this case may occur in various
shapes.
Which admits of four descriptions —
FIRIT, where the agent refers the contract
to his constituent's money, as if he should
say, "with this thousand dirms (meaning
those of hi« constituent) I have purchased
this slave :" in which case the slave goes to
the constituent. (This is the case which is
meant by the above expression, "or unless
he make the purchase with the constituent's
property ;" for that dees not mean "that he
shall first make the purchase for a thousand
dirmg, generally; and then pay it from the
property of his constituent/') StcoNDLY,
where the agent refers the contract to his
own money ; in which case the slave, for
evident reasons, belongs to the agent him-
self, since he has referred the contract to his
own property. THIRDLY, where the agent
refers to money in general ; in which case
the purchase is made either for himself or
his constituent, as he may have resolved in
his mind at the time ;— because the agent, in
a case of the present description, is at full
liberty either to make the purchase for him-
self, or for his constituent If. therefore,
the agent and constituent disagree (the
agent asserting that he intended in the pur-
chase for himself, and the constituent de-
claring that he intended it for him), then
the payment of the price must determine ;
that is, the slave is adjudged to him from
whose property the price is paid.— If, on the
other hand, it be admitted by both that no
resolution was formed, Mohammed alleges
the slave, in this case, to be the property of
the agent ; because of his being the contract-
ing party, and also, because of the proba-
bility there is that every one acts for himself,
unless where it can be proved to the contrary,
which the case in question does not admit of
— Aboo Yoosaf is also of opinion that the
payment of the price ought to determine the
right to the purchase ; because it serves as
a criterion to determine the action of the
agent, which otherwise admits of two sup-
positions ; and also, because, if the purchase
were to be considered as made on account of
the agent, notwithstanding his having paid
the price from the property of the constituent,
it would follow that the agent is an usurper.
This conclusion of Aboo Yousaf, however
(that the agent would, under these circum-
stances, be an usurper), does not necessarily
follow : on the contrary, he cannot otherwise
be considered than as in the case where the
parties disagree with respect to the inten-
That is, the agent is considered as
having made the purchase on his own
account, and consequently must pay the
price out of his own property.
tion ; which we have already explained. — It
is to be observed that all the several modes
here described apply equally to the appoint-
ment of an agent for the management of a
contract of Sillim.
Case of dispute between the agent and con-
stituent respecting a slave who, after being
purchased >y the agent, dies «n his hands —
a person appoint another to purchase for
a slave for a thousand dirms, and the
agent afterwards inform him that ''he had
accordingly purchased for him a slave for a
:housand dirms, but that the slave had died
n his possession," — and the constituent, on
the other hand, assert that " he had pur-
chased the said slave for himself and not for
;"— in this case the assertion of the con-
stituent, corroborated by an oath, must be
credited — Tnis however, proceeds on a sup-
position that the constituent had not pre-
viously delivered the said thousand dirms to
agent • — for if he shouM have given the
thousand dirms, the declaration of the agent
nust be credited ; because, in the former
nstance, the agent gives information of his
performance of an act which he is not now
:apable of carrying into full execution (sime
ie cannot purchase a slave who is dead),
and his object is to get a thousand dirms
from the constituent, who, on the other hand,
denies his right ; and the word of a defendant
is creditable before that of a plaintiff: and,
in the latter instance, the agent is a trustee,
having the price in his hands as a deposit ;
and his object being to obtain a releasement
from his trust, his assertion is therefore cre-
dited.— If, however the slave be actually
alive at the time of the d.sagreemcnt, the
declaration of the agent must be credited
(according to Haneefa and Mohammed),
whether the constituent have delivered the
price or not ; because the agent gives infor-
mation of his having performed an act which
he is capable at that instant of carrying fully
into execution (since it is in his power to
purchase this slave as he is living), and
hence his word is not liable to suspicion. —
According to Haneefa, indeed, if the con-
stituent should not have delivered the price,
his assertion must be credited, as the agent
is in the case liable to the suspicion of
having fir*>t purchased the slave on account
of himself, and asserting afterwards (on the
discovery of a defect) that he has purchased
him for his constituent. It is otherwise
where he has already received the purchase-
money, because then he is considered as a
trustee of it, and his assertion is credited,
as it tends to procure him a releasement
from his trust : — whereas, in the other case,
he cannot be considered as a trustee, since
the purchase- money is not in his posses-
sion.
In a case of dispute between an agent and
constituent respecting the purchase of a spe-
cific slave, the decla ation of the agent must
be credited. — Ira person desire his agent to
purchase for him a sp. eric slave, and thvv
afterwards disagree during the life-time ^.
384
AGENCY
the slave (the constituent asserting that the
agent had purchased him for himself, and
the agent declaring that he had purch sed
him for his constituent), in this case it is
universally agreed that, whether the con-
stituent may have delivered to him the price
or not, the assertion of the agent must be
credited : because the agent gives informa-
tion of his performance of an act which he
is at that moment capable of carrying fully
into execution ; and also, b cause he is not
in this case liable to any suspicion, since an
agmt for the purchase of a specific thing
cannot purchase that thing for himself in
the absence of his constituent, for the reasons
already explained ; in opposition to the ca^e
of an indefinite thing (according to the doc-
trine of Haneefa, as exhibited above).
An agent, avow ng his commission t cannot
afterwards retract, unless the alleged con-
stituent deny the commission. — IF one person
say to another "sell to me this slave in be-
half of Omar, who is my constituent;" and
the slave be accordingly sold, and the agent
afterwards deny that he had been authorized
to make the put chase by Omar, and Omar
then appear, and assert that he had desired
the said agent to purchase the said slave for
him, — in this case Omar is entitled to take
the slave, because the agent has h mself
acknowledged his agency on his behalf, and
denial after acknowledgment is of no effect
—If, on the other hand, O tiar should deny
his having authorized the purchase, in that
case he is not entitled to take the slave,
because the acknowledgment of the agent is
set aside bv the denial of Omar.— But if,
under these circumstances, the purchaser
should deliver the slave to Omar, it becomes
then a contract of sale, for w'.ich the original
purchaser is responsible, seeing that Omar
has purchased it from him after the mode of
Taata, that is by mutual gift, as when a
person buys a thing for another without his
authority and then delivers the said thing to
that other. — The doctrine of this case shows
that the delivery of a thing according to
sale, suffices to establish a sale by Taata or
mutual gift, even although the giving and
receiving of the price should not have taken
place ; and it also shows that a sale by Taata
in things of great or little value is estab-
lished by the mutual consent of the parties
This is the authentic doctrine in the case of
such sales.
An agent is at liberty, if he choose, to pur-
chase only one of two slaves $pecified. — IF a
person commission another to purchase for
him two specific slaves without mentioning
the price, and the agent purchase one of them,
it is valid : for in this instance the appoint-
ment of agency i* valid, and does riot restrict
the agent to purchase both of the slaves by
one contract, which is often impracticable,
because of the objection of the proprietor to
include them both in one contract. — The
a'jent may therefore lawfully purchase o^e
out of two slaves, unless when he does it by
deceit , as his agency authorizes him only to
[VOL. III.
make a just purchase, which precludes him
from making a deceitful one --The doetrine
in this case is universally agreed to.
IF a person desire another to purchase him
two particular slaves, without mentioning
the price, and the agent purchase one of
these slaves, it is valid ; because the appoint-
ment of the agent, in this instance, is
general (in other words, does not resrrict
the agency to the purchase of both slaves by
one contract) ; and it seldom happens that
two slaves are purchase I by one contract, <»s
a master seldom sells two slaves by one con-
tract
But not if the purchase be at an evident
disadvantage. — IT is lawful for the agent,
therefore, to purchase one of the two
(unless, indeed, the purchase be made at an
evident disadvantage, which would be con-
trary to the end of the appointment).
Nor if the price exceed the rate expressed
in his instructions ; unless the difference be
trifling — IF a person desire another to pur-
chase for him two sp?cific slaves (who are
supposed to be equal value) for one thou-
sand dirms, and the agent purchase one of
these slaves for five hundred dirms or less, it
is valid, according to Haneefa — If, however,
he should purcha>e him for more than five
hundred dirms, the contract is not binding
on his constituent. The reason of this is
that the constituent, having opposed one
thousand dirms to tl<e two slaves, who are
equal in value, did of consequence intend
that the agent should pay five hundred dirm.v
for each. The agent, therefor, in paying five
hundred dirms, conforms exactly to the
orders of his constituent : and although, in
paying less for him, he does deviate from his
orders, yet this being a laudable deviation,
in favour of his employer, is therefore bind-
ing. In purchasing him, on the other hand,
for more than five hundred dirms, whether
the excess be great or small, he is guilty of a
deviation from his orders unfavourable to-
the interests of his employer, and which is
therefore not allowed ; unless, indeed, the
agent purchased the other slave for the sum
remaining to complete the thousand dirms;
before any litigation happen between him and
his constituent, for the former purchase. —
What is here advanced proceeds upon a fa-
vourable construction of the law. Analogy
would suggest that the contract, in this case,
ought not to be binding on the constituent,
because of the deviation from his orders. —
The reason for a more favourable construc-
tion in this particular, is that the purchase
of the two slaves for one thousand dirms
(which is the express object of the constituent)
is here obtained ; and that the limitation of
their prices to five hundred each, in an equal
manner, is only an implied object, since it
requires to be established by reasoning ; and
an express object is always preferred to an
implied one. — The t<yo disciples maintain
that if, in the case in question, the agent
should have purchased one of the two slaves
for more than five hundred dirms, by a con-
BOOK XXIII —CHAP. II. J
AGENCY.
385
tract disadvantageous only in a small degree
(which cannot always be avoided), and the
money remaining suffice for the purchase
of the other slave, it is valid ; because the
agency is absolute (that is to say, is not re-
stricted to the payment of five hundred dirms
for one slave), although it be restricted to
a just and proper contract, which that in
question may be con.idercd, as the disadvan-
tage attending it is not great and obvious. —
It is, however, absolutely necessary that the
sum remaining suffice to purchase the other
slive, in order that the object of the con-
stituent (namely, the purchase of both for one
thousand dirms) be obtained,
An agent may liquidate a debt due from
him to his constituents by the purchase of a
specific article. — IF a person desire another,
who owes h.m one thousand dirms, to pur-
chase with it a specific slave, and the agent
act accordingly, it is lawful ; because a
specification ol the subject of sa'e amounts
to a specification of the seller ; and as a
specification of the seller would have b.»en
lawful (for reasons which will hereafter
appear), so, in the same manner, the specifi-
cation of the subject is also lawful.
But if the article be not specified, and
p eri s/i, afier purchase, in the agent's hands,
the debt is not liquidated. — IF a person desire
another, who is indebted to him one thousand
dirms, to purchase with it an indefinite slave ;
and the debtor accordingly purch ise a slave,
and the slave die before the delivery of him
to the constituent ; in that cas^ the slave is
held to have been the property of the agent
— If, on the other hand, he die after delivery
to the constituent ; he is then held to have
been the property of the constituent. — This
is the doctrine of Hane^fa The two disciples
allege that the property of the constituent
commences on the instant of the agent ob-
taining possession of the slave. — A similar
disagreement subsist with regard to the case
of a creditor appointing his debtor to mak*
a purchase with the debt, either by a contract
oiSillim or Sirf. — The argument of the two
disciples is that dirms and deenars, whether
ready money or debt, are not specific when
opposed to any thing in a contract of ex-
change (whence it is that if a person were
to sell a specific and existing article, in ex-
change for a debt, and both parties agree
that the purchaser does not owe the seller
any thing, yet the contract of sale is not
rendered void) : it is therefore, the same
whether they be a specified or not ;* and con
sequently the contract of the agent is bind-
ing on the constituent, because his seisin is
equivalent to that of his constituent. — The
argument of Ha nee fa is that dirms and
deenars admit of specification in agency
•Trp is to say, it is the same thing
whether the agent, at the time of purchase
declare that "the thousand dirms he pay,,
for the slave are those thousand which he
owes to his constituent/' or not.
(whence it is that if a person restrict his
agent to the purchase of something with one
housand specific dirms, or with a debt, and
he specific dirms be lost in the agent's hands,
or the debt become cancelled, the agency is
null) ; and such being the case, it follows
hat in the appointment of an agent for the
purchase of a slave, or for making a Sillim
contract, the property of a debt is vested in
A person, by another who is not indebted to
lim, without his being appointed an agent
for tha seisin of the said debt, which is un-
awful ; in the same manner a* if a person
should purchase a thing in exchange for a
debt due to him by so.ne other than trie seller
as if ,e should say to ths s^br "I hwe
jjujht this thing frjm you in exchange for
a debt owing to me by a certain person, ani
which you may take for the price") ; in which
case the sale would be invalid ; anJ so also
n the case in question.— In the appointment
of an agent for managing » Sirf sale, on the
other hind, it would follow that the con-
stituent, before possession, commands the
use of a thing of which he is not proprietor
till after possession (for he is not proprietor
of the debt till after the receipt ofit);aad
the application of the thing in question to a
Sirf sale, before the seisin of it, is null ;— m
the same minner a* if a person should say,
'give what you owe me to whomsoever you
please."— It is otherwise if the constituent
specify the seller ; because then the seller is
his agent for the receipt of ths i debt, and
consequently takes possession of the same in
virtue of his agency, and then becomes the
proprietor of it himself. It is otherwise,
also, where a creditor desires his debtor to
bestow the amount of his debt in charity,
because here the creditor destines his property
to GOD, who is a known and determinate
object.— It is to be observed that as, mall
these cases, the agency (according to Haneeta)
is not valid, the purchase make under it is ot
force and binding with respect to the agent
himself, as being the actual purchaser : -if
therefore, the subject of the sale should
decay or be destroyed in his hands, he must
sustain the loss : unless, however, the con-
stituent should previously have received
seisin of it ; because, in that case, it would
become his property, as a sale of the slave
is in this instance established between the
agent and constituent, by a sort of receipro-
Where an agent and constituent disagree
respecting a purchase, a judgment must be
given, according to the value.— I* a,°fr8on
give another one thousand dirms, and desire
him to purchase with it a female slave, and
the agent accordingly purchase a temaie
slave, and the parties then disagree,--tne
constituent asserting that he had P|JrchasC(*
her for five hundred dirms, and the agent
declaring that he had paid one thousand for
herein this case the assertion of the agent
is to be credited provided the value of the
slave be estimated at one thousand dirms ;
because the pric;, ac-ordin^ to hi n, ?J ^
386
AGENCY
[VoL. III.
one thousand dirms, in which exac amoutnt
he is a trustee, he therefore, in this case,
claims a releasement from his charge of
trustee ; whilst, on the other hand, the
constituent claims compensation from him,
which he denies.— If, however, the value
should be estimated only at five hundred
dirms, then the assertion of the constituent
is to be credited, because the agent departed
from his orders in purchasing a female slave
for five hundred dirms, when the constituent
desired one for one thousand dirms ;«and
is therefore responsible.— Supposing (on the
other hand) the constituent not to have paid
the one thousand dirrrs to the agent, and all
the other circumstances of the case to re-
main as above mentioned, then also, if the
value of the female slave be only five hun-
dred dirms, the assertion of the constituent
must be credited, because of the agent's
deviation from his orders : -but if the value
be one thousand dirms, both parties must be
required to make oath (because such is the
law in a dispute about the price in a con-
tract of sale ; and here the constituent and
the agent stand to each other in the relation
of buyer and seller) ; — af er which the con-
tract of sale (which is supposed to exist
between the agent and constituent) is dis-
solved, and the right of property in the
slave becomes vested in the agent.
Or according to the declaration of the
seller. — IF a person desire another to pur-
chase fof him a specific slave, without men-
tioning the price, and the agent accordingly
purchase the said slave, and they then dis-
agree in regard to the price (the agent assert-
ing that he had paid one thousand dirms,
and the constituent asserting that he had
only paid five hundred dirms), in this case,
provided the seller authenticates the decla-
ration of the agent, his assertion, corrobo-
rated by an oath, must be credited.— Some
have said that an oath is not to be exacted
in this instance, since the doubt arising from
the disagreement is removed by the verifi-
cation of the seller : in opposition to the
preceding case, where the seller is supposed
to be absent. — Others, again, have said that
in this case also an oath is requisite. Mo-
hammed alleges that as, after the receipt of
the price, the seller is, as, it were, a stranger
to both the agent and the constituent, — and,
even before the receipt of the price, is in the
relation of a stranger to the constituent,-
his assertion can have no effect in regard
to a disagreement between the constituent
and agent ; and, consequently, that an oath
is reauisite. This is also the opinion of
Aboo Mansoor ; and it is the most authentic
doctrine.
Section //.
Of the Appointment of Agents, by Slates
for the Purpose of purchasing their own
Persons in their own Behalf.*
A slave may employ a person topurcha$e
•That is, with a view to their emancipa-
ion.
his freedom from his master. — IP a slave say
to a person, "purchase me, in behalf of
myself, from my master, for one thousand
dirms"* (at the same time delivering the
one thousand dirms), and the said person
accordingly purchase the slave from his
master, in behalf of the slave, he [the slave]
becomes free ; and the right of Willa remains
with the master, because the sale of the
person of the slave to the slave himself is
here interpreted in its metaphorical sense
(that is, the liberation of the slave), as the
interpretation of it in its literal sjnse (namely,
the exchange of property for property) is
here unattainable : the slave's purchase of
his own person, moreover, is in fact an
agreement on his part to accept his freedom
in exchange for his property : and the agent
stands merely as a messenger, because none
of the rights of the contract rest in him : —
the case is, therefore, the same as if the slave
had purchased his own person : and as
the sale of the slave is, in fact, an emanci-
pation of him on the part of the master,
he is therefore entitled to the right of
Willa. If, however, the agent should not
particularly say and explain to the master
that he purchased the slave on behalf of the
slave, but, on the contrary, simply gay "1
have purchased a particular 8lave of yours,"
In that case the slave becOrn«R
of the purchaser ; because tu*
their literal sense, are use<5 *
exchange of property for prwr*
here practicable, and conse[tv; "*'<* ' «»
in opposition to the fcrSer a! t M°We c
the case, where the lit^ Statprneot of
being practicable, the * L J™?™1^ not
was therefore adopted; Tnd u1 i-6ns?
meaning (namely, an ^rW, 3S r Ilter;l1
for property) is here foiled \^ P™P*r<v
of consequence becomes thp n - Purchaser
slave ; and the one thouwndrT'ICtor-of th*
him by the slave for the our KdlrmVl'Ven £
are the right of the mast °[hl™elf
slave's earnings; and Jhe T hf>1nt?the
pay him another thousand PiF % mu,_8t
price. In short, in the c" 1"™ f°rr the
slave purchasing the said i an-agln.t for a
behalf" it is nfcessary* £ '^YC ln ^'VT
explain the circumstanc! fh?upartlculafly
is/that he express^ sapneCr7fvof.the «« ? that
the slave 'to be^ldf f? H? 'i^X"*?8" Yof
slave ••• for othCrSScCfun beha^f of- the
himself, and not forThe sl^ ^'^l U ^
where a person, who is n V i U 1S othew'se
in the capacity of an ™a ilave' ?
for it is not necessary ?& a
in whose behalf the Olrl hc '
the contract of w£U££Me \8
W°rds' m
"
spe.cifv
material • for if it be'
no!
*In other words, -purchase my FREEDOM
for one thousand DIRMS."
BOOK XXIII -CHAP. II.]
made, the transaction is a sale ; or if it be
micle, it is art emancipation, with a reserva-
tion of the right of Willa ; in which case
the price is not demanded from the agent,
notwithstanding he is the contracting party :
it is, moreover, possible that the master may
not be inclined to the emancipation, but may
assent to the sale merely with a view to the
exchange, in which case, also, explanation is
indispensable.
A slave may act as the agent of another
person in purchasing his own freedom — IP a
person say to a slave, "purchase your own
person on my beha f from your master ;"
and the slave sav to his master, "sell me,
on account of a particular p.-rso i, tor
this qumtity of dirms," an 1 the master
accordingly agree, in this case the slave
becomes the property of the constituent ;
because a slave is capable of becoming an
agent for the purchase of himself, since,
with regard to the property involved in his
person, he himself is as a stranger ; and as
he is property, a contract of sale op*ratep
with respect to him, although the seller
(because of the property being in the hands
of the slave himself) be not entitled to
detain him from the constituent after the
sale, as a sat sfaction for the price : and as
the slave is capable of agency, it follows
that if, in the case in question, he refer the
contract to his constituent consequently
because of its being in conformity to his
orders ; but if, instead of ref.rrmg it to his
constituent, he should refer it to himself, he
then becomes free, because the contract is
in that case an eniincipation, to which the
master agrees.
OBJECTION.— The slave is, in this case, an
agent for the purchase of a specific thing ;
but an agent for the purchase of a specific
thing is not entitled to purchase that thing
for himself.
REPLY.— Although the slave, in this case,
be an agent for the purchase of a specific
thing, yet by purchasing, he in reality per-
forms an act of a different nature from pur-
chase,* and that act is theref re allowed to
be expedited in his behalf.
tt IF, also the slave simply say to his master
sell me, without mentioning the particular
person, he is free : because his speech being
absolute, and admitting of two interpreta-
tions, is not applied in favour of the consti-
tuent, on account of the doubt which exists,
and which consequently determines the
transaction to be a contract in behalf of
himself.
Section III.
Of Agency for rale
An agent for sale cannot sell to his father
or grandfather. —fa agent for purchase or
sale is not permitted, according to Haneefa,
to enter into a contract of purchase or sale
AGENCY 387
with a person whose evidence would not be
admitted in his (the agent's] behalf, such as
his father or grandfather.— The two disciples
allege that if an agent should sell a thing to
any^ person whatever, standing in that rela-
tion to him (except his slave or his Mokatib),
for an equivalent to the value of the subject
of the sale, it is lawful ; because agency is
absolute ; and an agent is not liable to sus-
picion from such a sale, since the property
of those relations is distinct and separate
from his property ; and neither party is
entitled to derive a benefit from the pro-
perty of the other. It is otherwise where
an agent sells a thing to his own slave,
because that, in fact, is a sale to himself, as
the possessions of a slave are the property
of his master ; and the right of a master
extends to the earnings of his Mokatib, and
becomes, in reality, his property in the event
of the Mokatib's inability to discharge his
ransom.— The arguments of Haneefa upon
this point are twofold.— FIRST, and transac-
tion which begets suspicion must be excepted
from agency;— and the act of sale on the
part of the agent, to persons under the above
description, does beget suspicion, since they
are excluded from giving evidence in his
behalf.— SECONDLY, a mutual right of usu-
fruct and advantage subsists between the
agent and such relations, • since each is
entitled to derive an advantage from the
property of the other ; the sale of any thing
to them, therefore, is in manner a sate to
himself -A similar disagreement subsists
with respect to a contract of birr or ot hire,
under these circumstances,
He may it II the article committed to him
at whatever rate, and in return for what-
ever ctmmodity. he thinks /K.-WHO«vsR is
appointed an agent for the sale of anything,
may lawfully (according to Haneefa) sell
that thing, either for a la ige or small price,
or in exchange for any thing else, as well as
f 31 money .-The two disciples maintain that
it is neither lawful to sell the thing at a
areat and obvious disadvantage, nor for any
Thing but money, for the following reasons :
-FIRST, agency, although absolute is yet
restricted to the common customs of man-
kind -because as all transactions (such a
purchase and sale, for instance), are for the
purpose of removing or remedying a want,
they are therefore restricted to the measure
of that want (whence it is that agency for
the ourchase of a stove, or of ice, or of any
anLardesined for sacrifice, is restricted to
period in which those things are wanted);
and the common practice among mankind
U to sell a thing or an "^V^W?
for this value (not in anything else, but) m
money-SECONDLY. sale at a great and evi.
dent disadvantage is partly a sale and parUy
a gift ; in the same manner, also, the sale ot
g(£>ds for other goods (which is termed Beea
•Namely, emancipation.
'Namely, his father and grandfather,
Imbisat.)
(See
AGENCY
[VOL. III.
Mokasa, or barter) is sale in one shape, and
purchise in another shape ; — neither of these,
therefore, can be abs >lutely term d a sale,
The argument of Haneefa is that agency is
absolute, and must therefore be permitted to
operate in an absolu*. manner, provided it
be not subject to suspicion. — The sale, more-
over, of a thing at an evident disadvantage
is a common practice whin there is pressing
occasion for the price ; and, in the same man-
ner, it is also common to sell goods in ex-
change for g )O'ls, when one of the proprie-
tors losee all d?sire for his own goods. — With
respect to the example of the sale of a stove,
or of ice, or of an animal destined for sacri-
fice (as adduced by the two disciples in sup-
port of their opinion), the doctrine regarding
them cannot be admitted, according to the
tenets of Haneefa, since the contrary is re-
lated as an opinion of his upon those subjects.
— Besides, sa'e at an evident disadvantage is,
nevertheless, wholly a sale, and in no respect
a gift ; whence it is that if a person were to
make a vow, saying, "by GOD I will not
•ell such a thing. "and afterwards dispose of
it to an evident loss, he is forsworn.
OBJECTION. — IF sale at an evident disad
vantage be still wholly a sale, it follows that
a father or executor may sell the goods of a
minor at a disadvantage. — How, therefore,
does it happen that they are both debarred
from doing this ?
REPLY. — THE reason is that their power is
founded entirely upon their suppposed regard
for the interest of the minor ; and the trans-
action in question being of a nature which
argues a want of this regard, is consequently
not permitted to them.
IN regard to a sale of goods for goods, it
is either completely a sale, or completely a
purchase ; and cannot be partly a sale, and
partly a purchase, since the properties of sale
exist completely in it, as well as the proper
ties of a purchase.
An agent may purchase a thing ata^yrate
not greatly exceeding th* value. — AN agent
for purchase may lawfully buy a thing for a
price equivalent to its value ; and also for
more than its value, provided the difference
be not very considerable ; but it is not law-
ful for him to purchase it at a rate much be-
yond the value, as this gives room for sus-
picion, since it is possib e that he may have
first purchased it for himself ; and that after-
wards, on perceiving the loss, he had deter-
mined it for his constituent. If, however,
an agent be employed for the purchase of a
specific thing, and purchase it for a price
much beyond its value, lawyers have ob-
served that the bargain is neverthless made
for his constituent ; since an agent for the
purchase of a specific thing, as not being
allowed to purchise that thing for himself,
is not, of consequence, liable to suspicion.
— In the same manner, also, if an agent for
marriage should contract a woman in mar-
riage to his constituent, engaging for a dower
beyond her Mihr Misl or proper dower, it is
lawful, according to Haneefa ; because, in
marriage, as the agent must necessarily refer
the contract to his constituent, he is, there-
fore, not liable to suspicion : — but it is other-
wise with an agent for purchase, as he may,
if he please, settle the contract in an absolute
manner without referring it to his constitu-
ent.— The term evident disadvantage, as here
used, signifies a rate beyond the valuation of
appraisers,— as where, for instance, if several
persons make an appraisemnent of a thing,
none of their appraisements equal the price
given, — Some have said that this term is used
in the exchange of goods for goods, where the
difference is as ten to ten and an half ; anil
in cattle, where it is as ten to eleven ; and in
immoveable property, where it is as ten to
twelve. The reason of these proportions is
that the sale of the first kind is common ; of
the second kind the sale is in a maan between
frequency and rarity ; and of the third, it is
rare : — and the disadvantage increses in
proportion to the rarity of the transaction.
An agent for the sale of a slave may law'
full sell any part or portion of him. — IF a
person, being appointed an agent for the sale
of a slave, should sell the half of him, such
sale is valid, according to Haneefa ; because
the agency is in this instance absolute, and
does not restrict the sale either to one or
more contracts ; and as it would have been
valid, under such circumstances, if he had
sold him wholly fur half of the price, it
follows that it is valid where he sells the half
for half of the price, a fortiori. — The two
disciples allege that the sale of the half of
the slave is not valid, as not being agreeable
to custom, and because it involves the vexa-
tion of participition in the property : — the
sale therefore, is invalid ; unless the sale of
the remainder also be completed previous to
the disagreement of the parties, and their
appeal to the Kazee — in which case it is
valid, since the sale of one half may be
necessary to facilitate the sale of the other
half (as where, for instance, there is no
purchaser for the whole, when it would be
incumbent on the agent to make partial
sales) ; if, therefore, he sell the remaining
half prior to the delivery of the subject of
first half was made with a view to facilitate
the sale of the whole, and is consequently
valid : but if, on the contrary, he should not
sell the remaining half, it is evident that the
partial sale was not adopted as a means of
facilitating the sale of the whole, and is
consequently invalid.— This distinction, ac-
cording to the two disciples, precedes upon a
favourable construction of the law.
An agent for the purchase of a slave may
purchase him either wholly or in shares. — IP
a person be appointed an agent for the pur-
chase of a slave, and purchase one hiJf of
him, the purchase remains suspended (that
is to say, it is binding on the constituent in
case the agent afterwards purchase the other
half) ; because the purchase of a part may
be the means of the purchase of the whole
(as where the sla^e, for instance, has become
BOOK XXIII.— CHAP. II.]
AGENCY
389
the property of a number of persons, by
inheritance, in which case there is a necessity
for the agent purchasing one share from one
heir, another from another, and so forth) ; —
and whero the agent purchases the remainder
of the slave before his constituent rejects the
first purchase, it is evident '.hat the purchased
part merely with a view to facilitate the
purchase of the whole : — the contract of pur-
chase is therefore binding upon the consti-
tuent, and affectual with respect to him. —
This is universally admitted. — According to
Haneefa, there is a difference between this
and the preceding example ; for two reasons
FIRST, in th* purchase of a half of the slave
there exists a suspicion, as it is possible that
the agent may have made the purchase in
his own behalf, and becoming afterwards
sensible of the defect arising from partici-
pated property, may have then determined
it for his employer : a suspicion which does
not exist in the case of the sale of the half,
SECONDLY, the order of a constituent to sell
any thing is an order relative to his own
property, and is consequently valid ; and
such being the case : restriction or latitude
muit be attended to. — The order of a con-
stituent to purchase any thing, on the con-
trary, is an order relative to the property of
another, and is consequently invalid : and
such being the case, restriction or latitude
are not objects of attention.
An agent fo whorr an article of sa'e is
returned, ly a decree of the Kazee in conse-
quence of an original defect, may return it
to his constituent who must receive it back
without any suit. — IF a person desire another
to sell his slave, and the other sell the slave
accordingly, and either take possession of
the price or not, and the purchaser, in con-
scqueuce of a defect of such a nature as
could not have been supervenient (such, for
instance, as an additional finger), return him
upon the agent's hands, by a decree of the
Kazee founded either upon evidence, or on
the refusal of the agent to take an oath, or
on his express acknow'edgment. — in this
case the agent may icturn him to the con
stituent ; because the Kazee, in this instance
has expressly determined the defect to have
had existence during the p ^ss< ssion of the
seller, on which account he decrees the
return ; and hence his decree is not, in fact,
founded on any of the above circumstances,
namely, evidence, refusal to take on oath, or
acknowledgment.
OBJECTION.— What occasion, therefore, for
the exhibition of these proofs ? and why is
any mention made of themTn this case ?
REPLY. — To remove the doubt thus stated,
the author of this work observes, that the
Kazee knows with certainty that a defect ;
such as above described, could not happen
in the course of a month ; but not knowing
when the sale took place, there is therefore a
necessity for these proofs, in order to ascer-
tain the date of the sale, and that the Kazee
may be enabled c'carly to determine that
the said defect had not happened since the
sale, but had existed prior to it — The defect
may also be of such a nature as required the
inspection of woman or physicians ; — but
although the opinion of women or physi-
cians bs sufficient to prevent contention, yet
it is not a sufficient ground for a decree of
restitution : there is, therefore, a necessity
for the proofs aforesaid ; — unless, indeed,
the Kazee himself witness the sale and
perceive the defect, in which case there is no
necessity whatever for those proofs. — The
return to the agent is in fact, a return to
the constituent ; and hence the the agent is
under no necessity of entering a suit against
his constituent to enforce his admission of
the return.
And so also, where the defect is super-
venient ; provided the Kazee' s decrer be not
founded on the agent's acknowledgment. —
THE law is similar where the purchaser
returns the slave to the agent, in virtue of a
decree of the Kazee, founded either on evi-
dence or refusal to take an oath, on account
of a defect of such a niture as may have
taken place subsequent to the sale, because
evidence is absolute proof ; and, as to the
agent, he is under a necessity of declining
to swear, as he had not always the posses-
sion of the slave having received him only
after the appointment of agency, whence it
is possible that he is unacquainted with the
defect ; — when, therefore, the purchaser re-
turns the slave on account of the agent's
refusal to take an oath, the sale affects the
constituent and he must take him back. —
If, on the other hand, the purchaser return
him to the agent, in consequence of a decree
founded on his acknowledgment, the sale is
absolute upon the agent, as acknowledgment
is a weak proof (that is, do^s not affect any
other than the acknowledger) : and the agent
does not act from necessity, in this case, as
he had it in his power either to have
remained silent, or to have, refused taking
an oath.
In which case the constituent is not obliged
to receive it back without a suit. — THE agent,
however, may afterwards litigate the matter
with his constituent, and oblige him to take
back the slave on his establishing proof by
evidence, or on the coi.stituent's refusal to
take on oath.— It is otherwise where the
purchaser returns the slave to the agent, on
his acknowledgment, without a decree, for
in this case he has no grounds for a suit
against the constituent to compel him to
retake the slave ; because this return in a
sale de novo with respect to a th-rd person
who is neither the purchaser not seller ; and
the constituent must be this third person
since none but the agent can be considered
as the seller. — The agent, therefore, in re-
ceiving back the slave from the purchaser to
whom he had sold him, does, as it were,
repurchase him ; and hence he is debarred
from returning him to the constituent, or
litigating the ma ter with him. — A return of
the subject of the sale, on the other hand, in
virtue of a decree of the KAZEE founded on
AGENCY
[VOL. III.
ar4 acknowledgiiie.it of the seller, is ai an-
nulment of h: contract of sale, and not a
sale denovoi became althojgh the autho-
rity of the Kazee be gene a', yet acknow-
ledgment is but widk pro-> —In this case,
therefore, as the contract of sale is annulled,
the agent is entitled to sue the constituent,
in order to co npel hi 11 to receive back, the
slave; but as his acknowledgment is insuffi-
cient proof, the constituent cannot be com-
pelled to receive back the slave without
proof by evidence.*
// the defect be original, the constituent
must receivi back the article from his agent
without litigation, wh ther it be returned by
the purchaser in consequence of his [the
agent's acknowledgment, or not. — IF, on the
other hand, the defect on account of which
the purchaser has returned the slave be of
such a nature as cannot be supervenient
(such as a superfluous fimjer, for instance),
and the return be made to the ag nt in con-
sequence of his acknowledgment of the de-
fect, without, any decree of the Kazee, —
in this case, according to one tradition, the
constituent is obliged, without the necessity
of establishing a suit against him, to receive
back the slave; as the return is of a deter-
minate nature, and therefore the parties did
of themselves what the Kazee would have
done,— According to many traditions, how-
ever, the agent nas here no right to sue the
constituent, in order to make him receive
back the slave, for the reason already stated,
that "the purchaser's returning the article
to the agent, in consequence of his acknow-
ledgment, is a sale de novo, with respect to
others than the parties themsslves ; and the
constituent is not a party."-— In regard to
the assertion contained in the first tradition
that 'the return of the subject of the sale
was a thing of a determinate nature, "it is
not admitted : because the right of the pur-
chaser, at first, was that the subject of the
sale should be in a complete and perfect
state ; and failing of this, his right then
relates to a return of the subject ; and after-
wards it shifts, and relates to a restitution
of the exact quantity of loss he may have
sustained in the price. — In this case, there-
fore, the return of the subject of the sale is
not a thing of a determinate nature.
A constituent must be credited with respect
to his instruction.— IF the constituent and
agent disagree, the one asserting that "he
had ordered the other to sell his slave in ex-
change for ready money, and that he had
nevertheless sold him on credit/'— and the
other, that "he [the constituent] had merely
desired him to sell him, and that he had said
nothing more,"— in this case the assertion of
the constituent must be credited ; because he
is the person from whom the order issued ;
and no argument exists of this order being
absolute, agency being in its original nature
•Meaning, proof to the existence of the
defect.
relative and restricted ; whence it is that if
one person should say to another, ''I have
made you agent with regard to my pro-
perty ; the agent would not be permitted to
do as he pleased with regard to the property,
but would be restricted entirely to the pre-
servation of it. — If, on the other hand, a dis-
agreement similar to that in question should
take place between a manager'* and his prin-
cipal, the assertion of the manager must be
credited ; because Mozaribat is in its origina
nature general and absolute ; whence it is
that if a person should say to another "I
have delivered this property to you by way
of Mozaribat," or, "take this property by
way of Mozaribat," the other might lawfully
perform acts of Mozaribat with that pro-
perty, f — In Mozaribat, therefore, an argu-
ment exists of its being absolute. It would
be otherwise, indeed, if the principal should
declare that he had given the property to be
used by one particular mode of Mozaribat.
and the manager should declare that he had
stipulated another mode ; for in such a
case, the assertion of the principal would be
credited ; because the parties are both agreed,
in this instance, that the Mozaribat was re-
stricted and not absolute : and Mozaribat,
whenever it ceases to be absolute and is
determined to be restricted, resolves itself
into a mere agency. — It is to be observed that
an unrestricted commission to sell anything
may relate either to ready money. — or to
credit, whether for a long or a short period,
according to Haneefa. The two disciples
maintain that the period of credit must be
confined to what is customary. — The princi-
ple on which this proceeds has been already
explained.
An agent for sale is not responsible for
consequences. — IP a person order another to
sell his slave, and the other, having ac-
cordinly sold him, should take a pledge for
the price, which pledge is afterwards lost or
destroyed in his possession, — or, if he should
take security from the purchaser for the pay-
ment of the price, and both the surety and
the purchaser die insolvent, or disappear, so
as to leave it unknown whether they are gone
in neither of these cases is the agent re-
sponsible : for he is the original with respect
to the rights of the contract of sale ; and
seisin of the price is one of these rights , —
and as the taking of security was with a view
to add to his certainty, and the taking of a
pledge was in the nature of a bond to answer
the payment of the price, it follows that he
was competent to these acts. — It is otherwise
with respect to an agent for the receipt of
debt ; for he acts by way of substitution ;
that is to say, the creditor has substituted
him to receive the debt for him, but has not
*Arab, Mozarib — Meaning, an agent for
trade. It is particularly treated of under the
liead of Mozaribat.
fThat is to say, might employ it in trade
according to his own discretion.
BOOK XXHI.-CHAP. II.]
AGENCY
391
appointed him to take security or a pledge in
opposition to the debt ; whereas an agent for
purchase, on the contrary, receives the price
in virtue of his being a principal, and a party
in the contract, and therefore the constituent
cannot prevent him from performing these
acts.
Section IV.
Miscellaneous Cases
Joint agen s cannot act separately without
a mutual concurrence. — IF a person appoint
two agents, it is rot permitted to either of
them to act in any matter relative to their
agency, without the concurrence of the other.
'1 his is the law with respect to all transac-
tions which require thought and judgment
(such as sale, Khoola, and so forth, because
the constituent, in those transactions, may
Lave a confidence in the joint judgment of
both the persons in question, although not
in the single judgment of either of them.
OBJECTION. — Where the price is fixed,
there can be no need for thought and judg-
ment ; and therefore, in that case, the act of
one of the parties ought to be valid ; whereas
it is held to be otherwise.
REPLY.— Al. hough the price be fixed, yet
there may be occasion for judgment to in-
crease it, and also to make a proper choice
of a purchaser.
Except in the rnanujt ment of a suit. — THE
act of one of two agents without the con-
currence of the other is not valid excepting
in some particular cases :— as where, for in-
stance, a person appoints two agents for the
management of his suit, in which case either
of these may lawfully act without the other ;
because their joint action is impracticable,
as it would only create a noise and confusion
in the assembly of the Razee. Their judg-
ment, moreover, is required to the exerted
previous to the assembly of the Kazee : in
uher words, they ought previously to con-
sult with each other, and then one of them
ought to attend the meeting of the Kazee
to manage the replies and interrogations ;
which may be more effectually executed by
one than two, since in the latter case, much
noise and confusion woulJ ensue.
Gratuitous divorce of manumission, the
restoration of a deposit, or the discharge of
a debt. — IN the same manner it is lawful for
one of two agents to act singly in case of
their having been jointly appointed agents
by another to execute a divorce in his behalf
without a oompensa ion ;* — or to emancipate
his slave without a consideration ; — or to
restore a deposit to the owner of it ;— or,
lastly, to discharge a debt due by him. The
reason of this is, that in these cases there is
no necessity for consultation and judgment,
since in ail of them explanation merely is
required ; and the speech of one man, in
this respect, is equal to that of two.— It
•In opposition to Khoola, or divorce for a
compensation.
were otherwise if the constituent had said
to the two agents, "divorce a particular wife
of mine if you please," or "the business of
such a wife is in your hands," — for in this
case it would not be permitted to one of the
two agents to divorce the said wife ; because
the constituent has committed the divorce
to the thought and judgment of both : and
a'so, because he has suspended it upon a cir-
cumstance relative to both. — namely, their
pleasure, — and as he has connected it with a
circumstance relative to both, it becomes
analogous to where a person connects the
divorce with the arrival of two persons at a
particular house ; in which case the execu-
tion of it rjsts on the arrival of both these
p.rsons a*: the said houfe ; and so also, in
the case in question, it depends on the joint
wish of both the agents.
An agent cannot appoint a secondary
agent.— AN agent is not permitted to appoint
another person an agent to execute a com-
miss-on to which he himself was appointed,
as the constituent, in committing the trans ic-
tion to him, did not empjwer him to appoint
an agent for the excution of it.— The
reason of this is that althpguh the con-
stituent be satisfied with the judgment of his
own agent, yet it does not follow that he is
satisfied with the judgment of another per-
son since mankind in this respect are
d-iiercnt
Unless by consent of his constituent ; or,
unless his powers be discretionary.— IT is,
therefore, not lawful for an agent to appoint
an agent, unless with the consent of hts con-
stituent ; or unless the constituent should
have desired the agert to act according to
his wisdom and judgment, — in the first of
which c ses the consent is express; and in
the second, the constituent commits his busi-
ness, in an absolute manner, to the agent's
discretion. — As, in this case, however, the
agency of the secondary agent is valid, he is
the agent of the primary constituent ; and
hence the primary agent has not the power
of dismissing him, nor would his power of
agency cease in case of the death of the
primary agent. The agencies of both, how-
ever, would terminate in thej event of the
death of the constituent. A case which
exemplifies this has been already set forth
in treating of the duties of the KAZEE.
Contracts entered into by d secondary
agent in the presence of the primary are.
however, valid.— if an agent appoint an
agent without the consent of his constituent,
and the secondary agent conclude a contract
of sale in the presence of the primary agent,
the contract is in that case valid, because it
has had the advantage of the wisdom and
judgment of the primary agent, which is the
very object of the constituent.— A disagree,
ment, however, subsists with respect to the
rights of this contract.— Some have said th-
they appertain to the primary agent as thae
constituent has not acquiesced in any other •
undertaking the fulfilment of the contract 5
whilst others maintain that thzy rebate* to
392
AGENCY
[VOL. III.
the secondary agent, as being the actual
framer of the contract. If, on the other
hand, the secondary agent conclude a con-
tract in the absence of the primary agent, it
is not valid, as it has not the advantage of
the wisdom and judgment of the primary
agent.
And they are also valid, although made in
his absence, provided he afterwards consent
to them. — IF, however, the primary agent,
having received information of the contract,
should express his acquiescence in it, it is
then valid : and so also, a contract becomes
valid which, having been concluded by some
other than the agent, afterwards receives his
assent on his hearing of it; since it has thus
the benefit of his judgment.
And the same of a contract engagement in by
any stranger. — IF, also, the primary agent
first fix a price to be observed by the secon-
dary agent, and the secondary agent then
enter into a contract of purchase or sale, such
contract is valid ; because the exertion of
the primary agent's judgment is evidently
required only for the purpose of fixing the
price, which has been already dore
Or that (in a case of purchase or sale) the
constituent had previously fixed the rate. — IT
is otherwise, however, where the constituent
appoints two agents, and fixes the price him-
self ; for, in this case, notwithstanding the
constituent's settlement of the price, the
conclusion of the contrract by one agent,
although at the fixed price, would not be
valid.
Joint agents must act together, although
the constituent have fixed the rate. — BECAUSE
where the constituent appoints two agents,
notwithstanding his having fixed the price,
it is evident that his object is a union of
the judgments of both, in order either to
increase the quantity of the goods (it they be
agents for purchase), or to make a proper
choice of purchasers (in case they be agents
for sale), as was before stated : whereas, if
the constituent should not fix the price him-
self, but resign the management of the con-
tract to one person (being his immediate
agent, and not the agent of his agent), in
that case his object is to obtain the judgment
of the agent in the grand point of the con-
tract, name-ly* the amount of the price
A Mokatib. a slave, or a Zimmee cannot
act on behalf of an in/ant daughter being
a Musslima. — Is a Mokatib, an absolute
slave, or a Zimmee, contract a marriage in
behalf of a minor daughter who is free
and a Musslima, — or ^ make a purchase or
sale in behalf of a minor child under such
description, — it is unlawful (and the same
of every other transaction which they per-
form relative to the property of such a child) ;
as a slave or an infidel are not endowed
with authority, becanse of their slavery and
infidelity ; for as a slave has not the power
to marry in his own behalf, it is evident that
he cannot have that power with respect to
others ; and an infidel, on the other hand,
has no power over Mussulmans ; insomuch
that his evidence with respect to them is not
admitted. — Besides, the power in these cases
(that is, the right of acting with regard to
the property of an infant), is granted with a
view to the infant's advantage, and out of
regard to his interest ; and hence it is
necessary that this power be consigned to a
person competent and affectionate, in order
that the end may be answered : now com-
petency is destroyed by slavery ; and the
existence of affection to a Mussu man is in-
compatible uith infidelity ; a right of action,
therefore, with regard to the property of the
infant in question, cannot be committed to a
slave or an infidel.
And the same of an apostate, or infidel alien
— Haneefa, Aboo Yoosaf and Mohammed,
are of opinion that an apostate who suffers
death on account of his apostacy, and an in-
fidel alien, are with respect to an infant
daughter who is a Musslima, in the same pre-
dicament with a Zimmee (that is to say,
neither of these has a right to perform any
act with regard to her property, such as pur-
chase or sale, or the contracting of her in
marriage with another) ; — because an infidel
alien is endowed with still less power over a
Mussulman than a Zimmee : and with respect
to an apostate, although (in the opinion of
the two discipbs) he possesses power with
regard to his own property, yet his power
over his children, or over their property,
remains suspended upon his repentance and
return to the faith, according to all our
doctors*; because a power of action, with
respect to the property of an infant, is
founded on the infant's advantage, and a
regard for his interest ; and an apostate's
regard for the interest of his child (being a
Mussulman) must entirely depend on his
return to the faith ; now this is a circum-
stance of doubt : if he be put to death in his
apostacy it is then evident that he has no
power of action, and all such acts are conse-
quently null :—• if. on the other hand, he
return to the faith, it becomes the same as if
he had been always a Mussulman, and his
acts of the natur in question are therefore
valid.
CHAPTER III.
OF THE APPOINTMENT OF AGfcNTS FOR LITI-
GATION AND FOR SEISIN. — (KHASGOMAT,
OR LITIGATION, MEANS A COVERSATION
CARRIED ON BETWEEN TWO PERSONS IN
THE WAY OF CONTENTION AND DISAGREE-
MENT.)
Agency for litigation implies and involves
an agency for seisin. — IF a person appoint
another his agent to contend for something
in his behalf, the person so appointed is held,
in the opinion Of all our doctors, to be also
an agent for the seisin of that thing whether
it be debt or substance. — Ziffer alleges that
he cannot be considered as an agent for
BOOK XXIH-CHAP. Ill,] AGENCY.
seisin, since his constituent acquiesces only
in his agency for litigation in his behalf. —
Litigation, moreover, is one concern, and
seisin is another concern ; and the constituent
expresses his acquiescence in the litigation,
but not in the beisin. The argument of our
doctors is that when a person becomes em-
powered with respect to anything, he neces-
sarily becomes empowered with respect to
the completion of that thing ; and the end
and completion of a contention for any thing
is the seisin of that thing.
But decrees are passed on the contrary
principle in the present times. — In the pre-
sent acje decrees pass ar.c >rding to the opinion
of Ziffer ; because of the apparent want of
probity of agents in this a<:e ; and also,
because many men mav be trustworthy in
regard to the management of a cotention,
and not with respect to the seisin of property.
— IT is to be observed that an agent for liti-
gation is analogous to an agent for evacting
the payment of a debt; because he also is
competent to the seisin, inasmuch as the
sebin of a debt is in effect included in the
suing for the pavment of it. The common
acceptation of the word, however, is diffe-
rent, because from Taloza [exacting bv
means of a suit at law] seisin is not generally
understood ; and the common acceptation
must be preferred to the virtual meaninz, —
According to the decrees in this age there,
fore, he is not an aqent for seisin.
IF there be two agents for litigation, they
are in that case required jointly to receive
seisin of the thin? which is the object of con-
tention ; because the constituent has ex-
pressed his acquiescence in the probity of
them both jointly, and not in that of either
of them singly ; an^ as the conjunction of
both, with resoect to seisin; is practicable,
they must therefore take possession together.
—It is otherwise with respect to the mere
litigation, because their joint action is in
that particular impracticable, as has been
already demonstrated.
An aqent empowered to take possession of
a debt tj also an agent for litigation — WHO
EVER is an aejent in behalf of another for the
•eisin of a debt due to him, is also an agent
for litigation in behalf of that person,
according to Haneefa (whence it is that if
the other party bring evidence to prove that
the constituent had received payment of his
debt, or had given the creditor an acquittal,
auch evidence, in the opinion of Haneefa,
would be admitted). — The two disciples
maintiin that the aflfent' in question is not
an agent for litigation (and such also is
-eported, by Hasan, from Haneefa) : because
seisin and litigation are different things ;
and it does not follow that a person, from
being trustworthy with regard to property,
should alto be skilled in the business of liti-
gation. The acquiescence of the constituent
therefore, in the agency for seisin, does not
necessarily involve his acquiescence in the
agency for litigation. — The argument of
Haneefa it that an agent for the seisin of a
393
debt is an agent for the substantiation of
prGperty (that is, he is an agent for the
receipt of a consideration for a debt which is
the right of the creditor, in order that such
consideration may become the property of
the creditor ; because it is impossible to
receive the actual substance of the debt ; and
hence whatever he receives in the discharge
of the debt becomes the property of the cre-
ditor ; and as this is a compensation, or con-
tract of exchange, the agent is consequently
the principal, he being so with respect to all
such rights as a contract of exchange re-
quires) ;— and such being the case, he is of
course the plaintiff, and is entitled to carry
on the suit in the same manner as an agent
for litigating a right of pre-emption, or for
purchase. He most resembles, however, an
agent for litigating a right of pre-emption ;
because an agent for the receipt of a debt,
institutes his suit prior to the seisin of it, in
the same manner as an agent for maintain-
ing aright of pre-emption institutes his suit
prior to his taking the right whereas an
agent for purchase cannot institute a suit,
until he has completed the contract of pur-
chase. ,
A commission to take possession of sub-
stance docs not involve a commission to hti.
gate.— AN agent for the seisin of substance
is not an agent for litigation, according to all
our doctors ; because he is a mere trustee;
and also, because the seisin of substance is
not an exchange t he is, therefore, considered
merely as a messenger.— Hence, if a person
commission another to take possession of his
Have and the person in whose possession the
slave is should prove by witnesses that the
constituent had sold the slave to him, the
Kazee must not decree the sale against the
agent, until the constituent himself appear,
•-This proceeds upon a favourable construc-
tion.—Analogy would suggest that the slave
should be delivered to the agent, because, as
the proof has been exhibited against a per-
son who is not the adversary (since the
atzent is not the adversary), it cannot there-
fore be admitted. The reason for a more
favourable construction; in this particular,
is that the evidence goes to two points;—
FIRST- to prove the sale on the part ot tnt
constituent, and the consequent destruction
of his property ;— SECONDLY, to prove that
the paid agent has no right to make seisin
of the said slave— Now, although the evi-
dence on the first point be not against a
reiular adversary, yet in regard to the
second point it is against a regular adver-
sary (for the agent is the adversary on the
second point):— the evidence, therefore, is
* Arab Ain ;— meaning some actually
cxistant property (such, for instance; as an
aricle borrowed under an arreeat loan), in
opposition to a debt in money, or to an
ardcle compensate by to equal . quantity of
the same article (such as gram, and the
like).
AGENCY
394
admitted with respect to the second point,
but not with respect to the first point ;
whence, if the constituent were himself to
appear, it would be necessary to exhibit the
evidence de novo, to prove that he had sold
the siav, — It is therefore the same as if
evidence had been adduced to prove that the
constituent had dismissed his agent, for that
would be admitted so far as to prevent the
agent from the seisin : and so also in the
case in question. — The effect is the same in
cases of emancipation, divorce, and the like.
— Thus, if a person commission another to
bring his wife from her pressnt place of
residence.— and the agent having arrived at the
place of their residence, the wife should
prove, by witnesses, that her husband had
divorced her, — or thV slave prove, by wit-
nesses, that he or she had been emancipated
such evidence must be admitted, so far as to
prevent the agent from carrying them away
until the constituent s>h ill himself appear, —
but not with respect to the d vorce, or the
emancipation.
An agent fot litigation is empowered to
make concessions on behalf of his constituent.
— IF an agent for litigation make an acknow-
ledgment, before the Kazee, of something
affecting his constituent, such acknowledg-
ment is valid with respect to the constituent.
If, however, he should make the acknow-
ledgment before any other than the Kazee,
it is not valid (according to Haneefa and
Mohammed, arguing on a favourable con-
struction of the law) ;— but the agent, in
consequence of making such acknowledg-
ment before another than the Kazee, is dis-
missed from his appointment ; and therefore,
if he should afterwards claim his agency,
and bring witnesses to prove his acknow-
ledgment, it would not be admitted — Aboo
Yoosaf alleges that an acknowledgment
made before any other than the Kazee is
likewise valid with regard to the constituent.
What is here said proceeds upon a favour-
able construction. — Ziffer and Shafei main-
tain that the acknowledgment is not in
either case valid with respect to the consti-
tuent : and this (which was the first opinion
of Aboo Yoosaf on the subject) is conform-
able to analogy ; because the agent was
directed to litigate ; and by litigation is
understood contention, since this is an essen-
tial property of litigation : now acknow-
ledgment is the reverse of contention ; and
a direction to perform any act cannot extend
to the reverse of that act: on which prin-
ciple it is that (as contention is necessary to
the existence of litigation) an agent for liti-
gation is not competent to the acts of com-
position or exemption ;•— and also, that a
commission of agency is yaid, where the
agent's acknowledgment is expressly ex-
* In other words, of agreeing to a compo-
sition, or giving a discharge, for a debt.
[VOL.III.
cepted from it, for if acknowledgment be
comprehended under litigation, the excep-
tion of it would be invalid, in the same
manner as the exception of the denial of
the agent.* — A similar disagreement also
subsists with respect to the case of a person
appointing another his agent to give, in an
absolute manner, an answer in his behalf ;
for this kind of agency is restricted to an
answer that relates to litigation ; because
such is the common practice ; and hence an
agent to give an answer in an absolute man-
ner is, in fact, an agent for contention. — Tne
reason for a more favourable construction
of the law, in this particular, is that agency
for litigation is indisputably valid ; and the
validity of it extends to every point in which
the constituent is competent. Now the con-
stituent is in an absolute manner competent
with respect to an answer, whether it relate
to denial or acknowledgment ; for his power
is not confined and determined to one of
these only. The agent, therefore, is also
competent to either of the theie. Simple liti-
gation.f moreover figuratively signifies
general reply ; and as there is always an
affinity between the figurative and the
literal sense of a term (as will be hereafter
demonstr ted), the term must, in the pre-
sent instance, be received in its figurative
sense, so as to render the agency indis-
putably valid : for if the term be adopted
in its literal sense (namely, contention), it
would follow that the appointment is a com-
mission to quarrel and contend : and quarrel-
ling and contention are prohibited ; and the
appointment of an agent with respect to a
prohibited thing is forbidden. It is there-
fore indispensable that the term be taken
in its figurative sense (so as to render the
a ency valid), as this is most becoming the
Mussulman character.
Case of an appointment of agency with
an exception of acknowledgment . — IF a per-
son appoint an agent for litigation, and
except his acknowledgment, it is recorded
from Aboo Yoosaf that the appointment is
invalid, since after the exception of the
acknowledgment there remains only the
denial ; and as the constituent is not em-
powered with respect to denial only, except
where he knows the claim of the adversary
to be unjust; he cennot limit the power of
the agent to denial only. It is recorded
from Mohammed (on the other hand), that
this is valid ; for the exception of acknow-
ledgment by the constituent clearly indicates
that he himself is empowered only with
* "In the same manner as the exception
of the denial of the agent :"— that is, in the
same manner as if the agent's power of deny-
ing and rejoining, &c., were expressly ex-
cept eel from his commission.
f Arab. Khasoomat. — The reasoning in
this passage turns entrely upon the primi-
tive sense and generally accepted meaning
of the term
BOOK XXIT1.--CHAP II ]
AiiENOY
395
respect to denial becau e of his knowing
the falsity of his adversary's plea. If, how-
ever, he should have expressed himself
generally, the commission must be in'er-
p re ted to convey a pjwer of general reply,
which is becoming the c ncliti.in of Mussul-
mans. It is also r lated .,t .loli* miK-d, that
he made disiin.-tion b.twvn the p aiutiff
and defendant, observing thr if a defendant |
should appoint an ag:nt (\>r li:i»at>on and ,
should except his acknoxvk* is;m?ir , it is in- '
valid ; because a defendant is co .Celled to
make an acknowledgment \\h-n p it to his
oath, and th> r f re has not Hie pjwer 'o
establish agency lor a p irpo e pi j ad trial to
the plaintiff, tint is for denial .is to this ' e
himself is not com, eUnt. Th»' i lu: titf, on
the contrary, is at liberty either to d'.ltnov-
ledge or deny, as he pleases an. I njnce he is
entitled to app mt an dsnt foi o.ic of th^s:
purposes, aid to exirpt tic nther, Abo.)
Yousif argues that an «i»ent is the s-i'vitute
of his consultant : and AS th«* at.kiio.vle.iG
ment of a constituent is not limited to th*»
court of I hi Kaz:e, so neither ought that c»f
his substitute to !>2 s ) limitc 1. Huv.fa an-1
Mohammed, 'in the oth^r hud, a'cju: that
agency lor lii'gtt on extends to a u'p'V-
which is termed litiv>4tio.i either in its literal
or metaphorical sense Now an a. know-
ledgment in the assemb'y of the JV.IKJC is
metaphorically termed luit?Uions either be-
cause it is opposed to th^ liti«jatioi that has
issued, or because the litigation is the cause
of the acknowledgment ; the acknowledg-
ment, therefore, is limited to the assembly
of the Kazee, If, on the other hand, it be
proved; by evidence, that such an agent had
made an acknowledgment elsewhere than in
the assembly of the Kazee, his agency deter-
mines : and consequently if he should make
a claim with respect to the point concerning
which he had before made acknowledgment
and should adduce evidence to prove it, his
claim would not be admitted, nor would the
object of it be yielded to him, because of the
prevarication of which he has been guilty.
The agent, in this instance, there tore: re-
sembles a father or an axecutor who makes
an acknowleJq nent prejudicial to the infant
under his charge in the assembly of the
Kazee, which is of no affect ; whence if they
should a fterwai ds prefer a claim to th» ob-
ject of it, and adduce evid« ncc to prove
their right, it would not be admitted, nor
would the article in di pute b* given to
them
Agency for the receipt of a debt, com-
mitted to the surety for thedcbt, is invalid --
IF a person be surety for property in behalf
of a debtor, and the creditor appoint the
said surety his agent fur the receipt of the
debt, such agency is absolutely invalid, for
two reasons : — FIRST, the business of an
agent is to act in behalf of another ; and ii
the agency of the surety were supposed to be
valid, it would necessarily follow that he
\ cts as agent in behalf of his own person,
i n order to exempt himself from responsi-
bility ; and thus one of the essentials of
agencv (namely, action in behalf of another)
would b? de? troycd. SECONDLY, ii the agency
be valid, it necessarily follows that in case
the agent weie to :>ay " he had received the
debt," his a.ss-rti(M is credited (since an
ageiii is a trustee}:* and this conclusion
mu»t b* r.j-'cted in the present, instance
as the agent's assertion cannot Le credited
in;? KI n he endeavours to exempt himseif
linn r spon^i!>ility. The agency, therefore,
is nii'tli'!, b.cius* ot the iiiulnii&sibii ty of
th- i .J.K lu«i in r bint? iron it. it ii lu i*e
S rvf J t'-iat 'he -tge.U, -n this instance,
ret;.- nbl.' . the owner 01 .1 M.v.oon, or pnvi-
'.l si. ve, involved in debt. In oih r
«> it tlu? in i-tcr of an insolvent Maz on
w r t'»«- lancipale him, so as I j be hi.ns If
i»\ > > s oU- fv>r his value to the creditors,
an 1 the creditors demand payiiiciit of the
who e ••! the debt* fio.n the save, appoint-
; i -i- mister agei-t for the receipt uf them,
th,- 1-4 ii- v would be invalid, because of the
t.vo • MS :ii a!x>A' recited, in treating of the
agi i *»' ot i surety.
r; j " if 'i j\f fi vf agency uri^edfor the re-
CJ p: «>/ J dc'*l ji absence «/" the constituent.
IF 'i p.rsr.M '«!-'a 1 his being agent for the
rcc ipt ot a d. lit due to anothe. perso:i who
is absent, an i th.' il.Mtor verify his a*s:rtion
in th«s r be he |'he debtor] must be directed
to d livei ttie debt to tlu agent : because his
vcntieatto.i of -Ac claim is an acknowledg-
ment against himself, siaci what the agent
rccc ve is pjreiy the \ rop rty of the debtor.
- If, there ore, the -b ent p.r6on a'tcrwards
appear, and verify the assertion of the agent,
there will be no contention whatever : but if
other *'i-.e, the debtor must again pay the
debt to the absentee (who is nov present),
because his former payment of it is not estab-
lished, as the creditor denies the agency; and
his denial of agency, if confirmed by an oath
must be admitted. —The former payment
through the agent is therefore invalid ; and
the oebtor N consequently entitled to retake
from him what ever he had paid to him, pro-
vided it be still extant in this possession ; be
cause his object, in marking the payment, was
to himself from responsibility ; and as
this object has not been fulfilled, he has there-
fore a right to retake it.— If, however, the
thin? be not extant in the possession of the
aget.t, but have been destroyed, in that case
the debtor is not entitled to retake any thing
from UK- agent, since he, by his veriiica-
tion, acknowledged the right of the, agent
to the receipt of it As the debtor however,
in this instance sutler*. an oppression from
his credulity, and it is not lawful for the op-
pressed to ooprcss others, he is not allowed to
take any thine from the agent, in case of the
destruction of the thing given to him ;— un-
less, at the time of making the payment to
* Arab. Ameen ;— meaning a confident :
one whose word must be relied upon.
396
AGENCY
[VOL. Ill
the agent, had taken the agent himself as
security for the restitution, in the event of
the absent person's denial of the agency ; in
which case it would be lawful for him to
retake whatever he may have paid, as the
agent became surety, and is consequently
liable for it.
OBJECTION.— The security, in this case,
ought not to be valid, since it is essential to
the validity of bail or security that there be
a debt due by the suretee ; and the suretee,
in the present instance, is the constituent,
who does not owe any debt.
REPLY. — The security is valid; because it
is referred to the period when the constituent
shall have received the second payment of the
debt ; in which case he is responsible in the
conception of both the agent and the debtor ;
the security is therefore valid, in the present
instance, in the same manner as in all other
cases.
If, on the other hand, a person should
plead his being the agent of a certain absentee
for the receipt of a debt due to him, and the
debtor, without either verifying or falsifying
his claim, remain silent, and yet pay the debt,
and the proprietor of the debt afterwards
appear and exact payment of it from the
debtor, he (the debtor) is in this case entitled
to a rppayment from the agent, because he
did not verify the agency ; for in fact he did
nothing else than make a payment in the
hope that it would be acquiesced in by the
constituent ; and, on his being disappointed
in this hope, he is consequently entitled to
an indemnification from the agent.— The law
is also the same where the debtor pays the
debt to the agent, after falsifying his claim ;
as is obvious from the reasons already stated.
— It is however to be observed that, in the seve-
ral cases of verification, falsification, or silence,
it is not permitted to the debtor to retake the
article from the agent, after the delivery of
it to him, until such time as the constituent
appears ; because the payment he has made
is the right of the constituent from probabi-
lity (as in the case of his verification), or from
construction [as in the case or his falsification
or silence), since it is possible that the ab-
sentee may afterwards give his assent to it.
— It is, therefor, the same as if he had paid
the debt to a Fa^oolee, or unauthorized per-
son, in the hope that the proprietor *-ould
confirm it ; in which case it is not lawful to
take back from the Fazoolee what he may
have delivered to him ; because there exists
a possibility of a confirmation of it by the
owner ; and also, because it is a general rule
that, when a person performs an act with any
particular view or object he ought not to
undo the same unless he be disappointed of
the object which prompted it.
Case of A plea of agency urged for the
receipt of a trust, in absence of the con-
stituent.— IF a person plead his being the
agent of a certain person for the receipt of
a deposit, and the trustee verify his assertion,
yet the law does not award the delivery of
the deposit by the trustee to this person,
since (in opposition to the preceding case to
a debtor) the trustee here makes an acknow-
ledgment with respect to the property of
another. — If, however, the person in question
plead that "his father having died, the said
deposit had devolved by inheritance to him,
and that there were no other heirs." and the
trustee verify this, he must be directed to
deliver the deposit to this person ; because
the trust is no longer the father's property,
after his decease ; and the trustee and the
person in question are both agreed in its
being the property of the heir : — the trustee,
therefore, must be directed to deliver his
trust to this person as being the heir.
A person commissioned to receive a trust
on tie plea of having purchased it, is not
entitled to receive it from the trustee, — IF a
person plead that he had purchased a deposit
from the proprietor of it, and the trustee
verify his assertion, yet the trustee is not
entitled to deliver the deoosit to him ; be-
cause the verification of the truste|r during
the lifetime of the depositor is an acknow-
ledgment with respect to the property of
another : and hence their assertions (namely
that of the trustee and of the person who
perfers the claim) are not valid, with regard
to the estab ishment of proof of the sale on
the part of the proprietor.
A person commissioned to receive a debt
is entitled to receive it. although the debtor
plead his having already paid it. — IF a person
appoint an agent for the receipt of a cebt
due to him and the debtor plead that he
had acquitted himself of the debt to the
proprietor, yet it is incumbent on him to pay
the debt to the agent ; because the agency is
here clearly established ; but the debtor's
acquittance is not established by his asser-
tion : he is therefore not permitted to delay
the payment ;— but after he has made the
payment, he has a claim upon the creditor
and may exact an oath from him : but an
oath cannot be exacted from the agent, since
he is only a substitute,
The seller of an article cannot be com-
pelled ^ to take back the article from the pur-
chaser's agent, on a plea of defect, until the
purchaser swears to the defect.— IF a person
purchase a female slave, and afterwards
plead a defect in her. and appoint an agent
to manage the litigation with the seller, on
this account, and then disappear,— and the
agent accordingly institute a suit against
the seller for the defect, and the seller plead
that the purchaser had knowingly acquiesced
in that defect,— in this case the slave is not
to be returned tD the seller ; but a suspen-
sion must take place until the appearance of
the purchaser, who will then be required to
declare upon oath that he did not acquiesce
in the defect If is other wise in the case of
a debt (as befor recited); for there the
debt must be paid to the agent for seisin, in
behalf of the creditor, notwithstanding the
debtor may plead his having previously
acquitted him seif of it ; because it is there
practicable to make a reparation, by enjoin-
BOOK XXIII.— CHAP. IV.]
AGENCY
397
ing restitution from the agent of the amount
he may have received, on the error being
made apparent by the constituent refusing
to swear ; whereas, in the case in question,
if an annulment of the sale were decreed in
consequence of the defect, it cannot afier-
wards be revoked, smce a decree for dis-
solving a sale takes full effect, and continues
in force, although an error should afterwards
appear with respect to the defect pleade .
— This is the doctrine of Haneefa : according
to whom, also, an oath cannot be tendered
to the purchaser, after the annulment of the
sale, and the return of the subject of it,
since it is then to no purpose. — .n tha opinion
of the two disciples, also, the sale ought in
this case to be annulled, and the subject of
it returned, without a i,uspensio of it on the
oath of the purchase, since (according to
them) a reparation is practicable, tvjn in
this case, because, if an error shouid appear
in the decree of the Kazee, in consequence
of the constituent's refusal to swear, then
the decree becomes null, and the subject of
the sale is returne 1 to the purchaser. — Some
have said that, according to Aboo Yoosaf.
the most authentic doarine is that in both
cases a suspension should take place ; — that
is to say, in the case of the debt, the pay-
ment to the agent ought to be deferred, and
in the case in question the return of the
subject of the sale to the agent of the buyer
ought also to be deferred ;•— because he
direct his attention to the interest of the
seller (whence it is that if the purchaser
should afterwards appear, an oath is exacted
from him without the necessity of the seller's
preferring a formal plea for it) :— the return,
therefore, of the article sold, by the pur-
chaser's agent, is suspended, until the pur-
chaser himself appear and make oath ;— out
of tenderness to the right of the seller.
A person receiving money, to appropriate
to a particular purpose, may pay his own
money in lieu of it. — IF a person give another
ten dirms, in order that he may give them
to the family of this person for their main-
tenance, and the agent, instead of the specific
dirms he had received, give ten dirms of his
own, this is not a gratuitous payment ; on
the contrary, he is entitled to retain the
specific dirms he received in lieu of those he
gave ; because an agent for the delivery of
maintenance is like an agent for purchase ;
and such i? the law, as has been already re-
lated, in treating of an agent for purchase.
CHAPTER IV,
OF THE DISMISSION OF AGENTS.
A constituent may dismiss his agent at
pleasure ; except where the right of anothtr
pmon is concerned — IT is lawful for a con-
stituent to dismiss his agent, because the
agency being his right, he may consequently,
if he please, annul it : excepting, however,
when the right of another is interwoven with
it ; as where the agent is an agent for litiga-
tion, appointed at the request of the plain*
tiff, in which case the constituent (who is the
defendant) cannot dismiss the said agent*
because of the connexion of the right of the
plaintiff, since, if he should dismiss him, th*
right of the plaintiff would be set at nought*
The agency in this instance, therefore, re •
sembles agency interwoven with a contract
of pawnage, by the pawner, at the time of
settling the contract of pawnage, appointing
a person his agent for the purpose of selling
the pledge, and with the price so obtained
discharging the debt due to the pawn-
holder ; in which case, as the right of the
pawn-holder is connected wit*i the agency, it
is in the p ,wer of the constituent to dismiss
such an agent ; and so also in the present
instance
An agency continues in force, until the
agent receives due notice of his dismission. —
IF a constituent dismiss his agent, and the
agent should not receive any intelligence of
it, his agency continues in force until he be
apprised of his dismission ; and all his acts
until then are binding, as his dismission is a
detriment to him ; because it annuls his
power of action ; and also, because the rights
of contracts of purchase and sale appertain
and result to him ; and accordingly, an agent
for purchase does himself pay the price from
the estate of the constituent and an agent
for sale delivers the subject of the sale to the
purchaser ; if, therefore, the dismission were
to operate instantaneously, without his in*
telligence, and he should, under these cir-
cumstances, either make a payment of the
price, or delivery of the goods, he must, in
such case, become responsible, which is an
injury to him.— It is to be observed that
agents for marriage, or the like, are in this
respect considered in the same light. — A
question has been started whether it is re-
quisite that the notification of the dismission
of an agent be made by two men, or by one
upright man : but as the law, on this head,
has already been laid down in treating of
the duties of the Kazee (under the head to
Decrees relative to Inheritance), it is here
unnecessary to repeat it
A commission of t gency is annulled by the
death, confirmed lunacy, or apostacy of the
constituent. — Ira constituent die, or becomes
an absolute idiot, or having apostatized, be
united to a hostile country, in all these cases
the commission of his agent becomes null ;
because a commission of agency is not a
thing of an absolute or irrevocable nature,
since it is in the power of the constituent,
without the consent of the agent, to dismiss
him ; and such being the case, it necessarily
follows that the existence of it must depend
on the existence ol the power which created
it originally, as it is requisite that the con-
stituent should, during every moment of its
existence, continue to possess the same power
or capacity with respect to its formation, as
he did at the beginning ;— and this power or
393
AGENCY
[VOL. III.
capacity ceases in consequence of the above-
mentioned tcci dents. — The absolute idiotism
here mentioned is conditioned by Kado^re,
as a small degree of it stands onlv as a
temporary deprivation of sense.— The limit
of absolute idiotism, according to Al>oo
Yoosaf, is fi\ed at one month, sine*? by tpat
spaci of lunacy the duty of fasting is
remitted. — It is also related, as an opinion of
Aboo Yoosaf, that its lim t is m )re than
one night and one day. since l>y that space
of idiotism the observance uf tlu Iwc stated
prayers is remitted, —whence it is tint an
idiot in that degree is consul. r-d as defunct —
Mohammed his said that thj limit ou^ht to
be extended to a complete year, since in thjt
space of tinu idioliiin oj.asi >ns th : o.mss.on
of all the religious duties prtxribt-d to a
Mussulman; and that, ihcr.Joiv, from a
principle of caution, it ou«ht t > Lv extended
to that period. — With lespcct to the expres-
sion "or having aj osiatizcd, be in., led to a
hostile country" (as mentioned in this case),
lawyers observe that it is the <Joctrme cf
Haneefa ; because, according to him, <-ll the
acts of a person who simply apot-tatizth
remain suspended : if, therefore, he after-
wards repent, and return to the faith, his
acts (and consequently his com.-msMon <>f
agency) are conhrmed ; but if he beuiher
§ut to death on account of his apostacy ; ur
y to the infidels hi, acts are rendered void,
and his commission of agency is annulled —
In the opinion of the t^o disciples, on the
other hanc'. the acts of an apostate are valid,
and therefore his commission of agency is
not annulled, unless in case of his uying, or
being put to death, or being expatriated, by
a decree of the Kazee
But not by apostasy if the constituent be a
woman. — IF the constituent be a woman ; and
apostatize, her constitution of agency never-
theless, remains binding until her death, or
until her removal to an infidel country,
because it has been determined that the
apostacy of a woman has no effect on her
contracts, such as sale, or the like.
Cases in which an appointment of agency
by a Mokatib. a Mazoon, or a copa trier, are
annulled. — IF a Mokatib appoint an agent.
and afterwards become incapable of dis-
charging his ransom, — or, if a privileged
slave appoint an agent, and afterwards be
laid under restriction, —or, if one of two
partners appoint an agent, and the partners
should afterwards separate and dissolve their
partnership, in all these cases the agency
becomes null, whether the agent may or may
not have received intelligence of the*e
supervenient circumstances (su-h as the
incapability of the Mokatib, and s>o forth),
tor the reason already assigned, that *'ti e
continuance of agency depends on the con-
tinual existence of the power and capacity
of the constituent to create it ;" which power
discontinues in consequence of any of the
above circumstances. Now this reason obtains
in either case (that is, whether the agent be
informed of these circumstances, or noO : in
either case, therefore, the agency is annulled.
—The reason of this that the dismission
of the agents is a dismission by effect and of
necessity, and therefore does not rest upon
his knowledge ;— in the same manner (for
instance) as an agxnt for sale is dismissed
when the thing is sold by the constituent ;
in which case th»« atjtMicy nee ?.s.«ari'y ceases,
as the subject of it no longer remains
| A cowmi<?i'on of a»t-ncy i* annulled by the
| death or lunticy of the ag^nt — IF an a^ent
! should dit-, or bec'-me an absolute idiot ; the
! agency ceasos ; Luvause the continuance of
* agency stands on the same «roun i as its
| commencement ; and as, at the commence -
1 mcnt, it is requisite that th-* ag^nt b* capable
! of executing the oidors r-fhis constituent, it
i follows that the rontinuanc* of tin • capacity
! is a condition of the continuance of he
; agency ; a.ul this capability ce.is?s in the
; present instance, in consequence o the death
or idiotism.
Or, by fas aposttirv and flight to a. hostile
country — IN the t.ame manner also, if an
agent apostati/e and go to an mil Jfl country,
his acts are not binding ; unless he agiin
become a Mus-jiilmin, and return, in wruch
ca-»c the agency reverts to him — The author
i if this work i/.^erves that this is according
io Mohammed ; l»ut that, according to Aboo
Yoosaf, the agency does not revert, notwith
standing the agent's returning to the faith
and to his Country --The aigument of Mo-
hammed is th-iit a commission ot agency is a
latitude, or cnd<nvnvnt with power of action
as it is the renewal of the h^r to such
power which would otherwise oppose itself
Now the agent's power of action, so far as
merely regards himself, rests upon the ex-
istence in him of certain quilities, namely
rationality, freedom, and maturity of vears ;
and he has been rendered incapable of
exerting that power merely bv a super-
venient circumstance (namely, his desertion
to a hostile country) ; when, therefore, the
cause of this disability is removed, if the
latitude still continue in force, he again
becomes an agent, as before. The reasoning
of Aboo Yoosaf is that a commission ot
agency is an investitute with a power of
passing ; — in other words, the agent, in virtue
of his commission, is possessed of a power
of passing his acts, so that they shall be
binding upon another, namely, his consti-
tuent : in short, in virtue of his appoint-
ment, he is invested with the power of
passing his acts, but not with the power of
performing those acts, as this power he
possessed in virtue of his natural com-
petency — Now the power of passing acts,
or, in other words, agency, ceases on apostacy
and desertion to a hostile territory, as these
circumstances are held to be the same as
the death of a Mussulman ; and it does not
afterwards revive on the agent's again be-
coming a Mussulman, and returning to the
abode of the Mussulmans; in the same manner
a* (in such a case) the property in an Am-
Walid or a Modabbir does not revive ; in
BOOK
-CHAP IV.]
AGENCY
399
other words; if a master apostatize and go to
the abode of the infidels, his Modabbirs and
Am-Walids become free, and his property in
them does not revive in case of his returning
to his faith and his country.
Agency is not renewed by the repentance
and return of an apostate constituent. — IF a
constituent become a Mussulman, and return
to the country of the Mussulmans, after
having apostatized and gone off to a hostile
country, the power of his agent, which had
been annulled, does not in that case revive,
according to the Zahir Rawayet. Mohammed
is of opinion that the agency revives, in
the same manner as in the preceding case
of the apostacy of the agent. — The reason
for the distinct! m (?c;ordi g to h -• Z hir-
Rawayet) between the case of an apostate
constituent and an apostate agent is, that
the foundation of agency, with respect to a
constituent, is property, which becomes null
in consequence of apostacy ; but the foun-
dation of it, with respect to an agent, is
rationality, freedom, skill, and maturity of
years, circumstances which are not extin-
guished by apostacy.
Agency for any particular act is annulled
by the constituent himself performing that
act. — IF a person appoint another his agent
for any particular concern, and afterwards
execute that concern himself, the agency in
such case becomes null. — This case admits of
a variety of modes ; as where, for instance,
a person appoints an agent to emancipate
his slave, or to make him a Mokatib, and he
afterwards himself emancipates, or makes a
Mokatib of, the slave,— or, where a person
appoints an agent for the contracting of
marriage between him and a particular
woman, and he himself afterwards con-
cludes the contract, — or, where a person
appoints another his agent for the purchase
of a specific article, and he himself after-
wards purchases that article, — or, where a
person appoints a person to divorce his wife,
and he himself afterwards divorces her three
times (or divorces her one time, and her edit
expires), — or, where a person appoints an
agent to conclude a Khoola with his wife,
and he afterwards concludes the Khoola
v ilh her ; — for in all these cases the agency
(because of its impracticability in conse-
quence of the anticipation of the constituent
in the performance of these acts) is null ;
into much that, in the case of marriage, if
the constituent should afterwards irrevocably
divorce the woman he had so married, it
would not then be lawful for the agent to
contract a marriage with her in behalf of
the constituent, because the object of the
constituent, in the agency, had been already
obtained, and the necessity of it, of conse-
quence, no longer existed. (It is otherwise,
however, where the agent contracts the
woman, and afterwards divorces her in be-
half of the constituent ; because, in this
instance, the constituent's object in the
agency has not been obtained, and conse-
quently the necessity for it still exists.)
An agency dissolves by any act of the con-
stituent cannot afterwards revive. — IF a per-
son appoint another his agent for the sale of
a slave, and afterwards sell that slave him-
self, and the purchaser return the slave to
him, in consequence of a decree of the Kazec,
founded on the proof of a defect, it is related
as an opinion of Aboo Yoosaf, that the agent
is not then entitled to sell the said slave, be-
cause the constituent in selling him himself,
did virtually prohibit the agent from execut-
ing the deed, and it consequently becomes
the same as it he had dismissed him. — Mo-
hammed, on the other hand, alleges that the
agent may in this case resell him, because
the agency still exists, since (according to
him) agency is the licensing of action. — It is
o'herwise where a person appoints an agent
f r executing a gift, and afterwards makes
the gift himself, and again retracts it ; for in
this case it is not lawful for the agent to
make the gift, since the voluntary retraction
of it by the constituent did clearly indicate
his wish that it should not take place : in
opposition to the case of the return of the
subject of a sale founded on a decree of the
Kazee to the constituent, because there the
constituent acts from necessity in the receiv-
ing of it ; and there exists of course no argu-
ment to show that he does not wish the sale
to take place : when, therefore, the subject
of the sale, in consequence of being returned,
becoms completely his property, the agent
is entitled to resell it.
BOOK XXIV.
OF DAWEE OR CLAIMS,
Chap. I. — Introductory.
Chap II.— Of Oaths.
Chap. III.— Of Tahalif ; that is, swear-
ing both the Plaintiff and the De-
fendant.
Chap. IV.— Of Things claimed by two
i laintiffs
Chap. V.— Of Claim of Parentage.
CHAPTER I.
Distinction between plaintiff and defen-
dant — THE Moodaa, or plaintiff, is a person
who, if he should voluntarily relinquish his
claim, cannot be compelled to prosecute it ;
and the Moodaa-ali-hee, or defendant, is a
person who, if he should wish to avoid the
litigation, is compellable to sustain it. — Some
have defined a plaintiff, with respect to any
article of property, to be a person who, from
his being disseised of the said article, has no
right to it but by the establishmenr of proof;
and a defendant to be a person who has a plea
of right to that article from his seisin or
400
CLAIMS
[VOL III.
possession of it. Mohammed, in the Mab-
soot, hat said that a defendant is a person
who denies. — This is correct : b it it requires
a skill and knowledge of jurisprudence to
distinau/sh the denier in a suit; as the reality
and not the appearance is efficient ; and it
frequently happens that a perso.i is in ap-
pearance the plaintiff. whiUt in reality he is
the defendant. Thus a trustee, when he says
to the owner of the deposit, "I h*ve restored
to you your deposit." appears to be plaintiff,
inasmuch as he plead; the return of the
deposit ; yet in reality hv is the «i. -fondant,
since he denies the obligation of responsi-
bility; and hence his assertion, corroborated
hy an oath, must be creJitc .
A plaintiff must particularly stale the sub-
ject of his claim. — No claim is a hnissible
unless the plaintiff e.\plain the species and
quantity of the article which is the o ^joct of
it ; because the end of a claim is, upon the
establishment of the proof, to ob'ain a decree
of the Kazee for rendering the matter obliga-
tory upon the defendant : but no obligation
can take place with respect to a matter of
uncertainty.
Which (i/, bi mooeab/tf property) must
be produced in court — IF, therefore, the
article be still existing, and in the posbcssion
of the defendant, he is required to produce it
in the court of the Kize*, in order that the
plaintiff may pointedly refer to it in the
exhibition of his claim In the same manner,
the production of it is necessary at the time
of he delivery of testimony, or of the ad-
m migration of an oath to the defendant;
because on these occasions the greatest pos-
sible degree of certainty and knowledge is
requisite ; and this is best answered by a
pointed reference with respect to moveable
property, such as may be brought into the
court of the Kazee, since a pointed reference
most completely ascertains and determines
any thing.
The defendant must Appear, to answer to a
valid claim — WHEN the claim of the plaintiff
is of a valid nature, the appearance of the
defendant is necessary, This practice has
been followed by Kazee in ail ages.— It is,
moreover, incumbent on the defendant to
five a reply to the plea, when he is present,
in order that the object of his presence may
be answered
And must produce the subject of it. — IT is
also necessary to produce the subject of the
claim, for the reason already stated —It is
likewise incumbent on the defendant, in
ease of his denial, to take an oath, as shall
be explained in the latter part of this
chapter.
Or the value of it must be specified.— Iv
the subject of the claim be not present, a
bare explanation of the quality of it is not
sufficient ; for it is indispensable, in this case
that the value be specified, in order that the
subject of the claim may be fully ascertained;
because the substance of an entity is known
by an explanation of its value, and not by
that of its quality, since many individ uals
of that genus may partake of the same
qualities ; and as an actual sight of the
article is, in this instance, unattainable, an
explanation of the value is accepted in the
place of a pointed reference to it. — (The
lawyer Aboo Leys has said that to an ex-
planation of the value ought to be added
that of the gender.)
Or (if the object consist of land) the
plaintiff must define the boundaries. Sec , and
must make an explicit demand of it. — IF the
claim relate to land, or other immoveable
property, it is requisite that the plaintiff
define the boundaries, and say "that land
is in the possession of the defendant, and I
claim it from him ;" — because such property
cannot be described by a pointed reference,
as it is utterly impossible to produce it in
the assembly of the Kazee; a definition of
the boundaries therefore suffices, as immove-
able property may be ascertained by such a
definition.— It is necessary to define the four
boundaries, and to specify the proprietors of
each, adding a description of their family,
in which is required to go at least as far
back as the grandfather, — since (in the
opinion of Haneefa) a knowledge of the
grandfather is essential to the complete de-
scription of a family : and this is approved.
If, however, the proprietor of the boumdary
be a person of notoriety, the simple mention
of him is sufficient — If, also, only three of
the boundaries be defined, it is sufficient,
according to our doctors (contrary to the
opinion of Ziffer) ;— because a definition is
in this case made of a majority of them ; and
the majority is equivalent, in effect, to the
whole. — It is otherwise where all the four
boundaries are mentioned, and there happens
to be a mistake with respect to one of the
four, for in this case the claim is falsified: in
opposition to the case where a definition of
one . of them is omitted, as that does not
induce a falsification of the claim.— (It is to
be observed that, in the same manner as a
definition of the boundaries is requisite in a
claim regarding irnmnveable property, so is
it also requisite in giving evidence.; — With
respect to what was before advanced, that
'Jthe plaintiff must say " that land is in the
possession of the defendant, &c," this is
indispensably requisite ; because the defen-
dant is not liable to the suit, unless he be
possessed of the land. As, however, the
assertion of the plaintiff and the verification
of the defendant is not alone sufficient to
prove this, it is requisite that the plaintiff
prove the possession of the defendant by the
evidence of witnesses, or that the Kazee be
himself acquainted with the circumstance.
This is approved : because in the assertion
of the plaintiff and the verification of the
defendant there is room for suspicion, since
it is still possible that the land may be in
the possession of another, and th it they may
have agreed in its being in •he possession of
the defendants, to induce the Kazee to pass
a decree'— It is otherwise with respect to
moveable property, because the seisin of the
BOOK XXVI.— CHAP. II ]
CLAIMS
401
possessor being, in that case, de terminable
by sight, there is no necessity for proof by
means of witnesses. — With respect to the
plaintiff's saying. "I claim it from the de-
fendant/' this is also indispensably rcquisi e ;
because to demand it is his right, and the
demand must therefore be made; and alsj
because it is possible that the land may be
in the possession of the defendant in virtue
of pawnage, — or detention atter a sale of it.
to answer the price, — and this apprehension
is removed by the claim of it. — Lawyets have
observed that because of the above possibility,
it is requisite, in a case of moveable property,
that the plaintiff declare that the thing is
unjustly in the possession of the defendant,
A claim fr debt r< quires only the claim.
— IF the claim relate to debt, it is sufficient
for the plaintiff to sa>, "I claim it." For
as the person on whom the obligation rests
is himself present, there remains only the
claim of it I and this it is incumbent on the
plaintiff to make, because it is his right, and
also, because, until he himself claim it, the
Kazee can take no notice of it.
And a description of the species and
amount. — IT is, however, necessary that he
explain whether it consist of dirms 01 dcenars,
and whether it be gold or silver, as such
explanation defines the debt.
Process to be observed by the Kazee. —
WHAT has now been mentioned is an expla-
nation of the validity of claims. It is to be
observed that where the claim of a plaintiff
is valid, the Kazee must interrogate the
defendant, and ask him "whether the plea
be true or not ?" If he acknowledge the
truth of it, then the Kazee must pass a
decree, founded upon his acknowledgment,
because acknowledgment does in itself pro-
duce the effect : the Kazee mu*t, therefore,
order the defendant to give up the possession
of the article concerning which he has made
the acknowledgment, and to deliver it to the
plaintiff — If, on the other hand, the defen-
dant deny the truth of the allegation, the
Kazee must require the plaintiff to produce
evidence, because the Prophet, in a case
where a defendant objected to the allegation,
said first to the plantiff; "have you evi-
dence ?" and on his answering in the nega-
tive, he then said, "it belongs to you to
demand an oath from the defendant." Now
it appears from this tradition, that the right
of demanding an oath from the defendant
rests upon the defect of evidence on the part
of the plaintiff ; and hence it is requisite
first to demand the evidence of the plaintiff
and on his making known his inability to
produce it, to demand an oath from the
defendant.— If, therefore the plaintiff pro-
duce evidence in attestation of his claim,
the Kizee must pass a decree in his favour,
as in that case there cannot be any suspicion
of falsify. If, on the other hand, he be
unable to produce evidence, and demand the
defendant to be put to his oath, in that case
the Kazee ( because ^ of the tradition above
quoted) must administer an oath to him,
The damand of the plaintiff, however, is
requisite to the exaction of the oath, as it
is high right.
CHAPTER II.
07 OATHS
An oath must not be required of the de-
fendant when the plaintiff's witnesses (al-
though not immediately present) are within
call.— IF a plaintiff declare that " his wit-
nc.^ses are present in the city, but not in the
c urt of the Kazee." and should nevertheless
demand an oath from the defendant, in that
case (according to Haneefa) the defendant
must not be required to take the oath.^ Aboo
Yoosif alleges that an oath must, in this
castf, be exacted from the defendant ; because
it is established, by the tradition before cited,
than an oath is ihe right of the plaintiff;
an J it must consequently be granted to him
in case of his demanding it The reasoning
of Haneefa is that that the establishment of a
right in the plaintiff to exact an oath from
the defendant is founded on the supposition
of his inability to produce evidence, as is
expressly declared in the above mentioned
tradition — Hence until his inability to pro-
duce evidence be made apparent, his right clois
not take place, any more than if the witnesses
were present in the court of the Kazee
The opinion of Mohammad (as reported by
Khasaf) coincides with that of Aboo Yoo-
saf : ace rding. however, to 4 report of
Tahavee, it coincides with that of Haneefa.
An oath cannot be exacted from the f>lain-
tiff— AN oath cannot be exacted from the
plaintiff, because of the saving recorded in
the traditions of the Prophet, " evidence is
incumbent on the part of the APPLICANT,
and an oath on that of the RESPONDENT ; '
from which it is evident that an oath is not
in any shape incumbent on the plaintiff,
otherwise the necessity of it would not have
been restricted to the respondent or defen-
dant.— (Shafei, however, dissents from this
doctiine). f
The evidence adduced on the part of the
plaintiff" must be preferred to that adduced
on the part of the defendant.— It both the
actual possessor [of the property] and the
plaintiff should adduce evidence in support
of their absolute right of property, in this
case the evidence of the person in possession
must be rejected and that of the plaintiff
admitted. Shafei maintains that the evidence
of the possessor must be admitted, and a de-
cree passed in his favour ; because the evi-
dence is corroborated by the possession, and
is consequently strong and apparent ; it ought
therefore to be preferred in the same manner
as evid nee in favour of the possessor is pre-
ferred in cases of birth, marriage, or a claim
to a slave that has been emancipated, or that
has becom* an Am-Waiid or been consti-
tuted a Modabbir; in other words, if two
persons should severally asaert that a part-
402
CALIMS
[VOL. Ill
icular horse, in the possession of one of them,
was the offspring of a horse belonging to him ;
and if each should bring evidence in support
of his assertion, in that case the evidence of
the possessor would be preferred ; and so also
in the case of a contested w fe who if in the
possession of one of two claimants,— or in
the case of a freedman, an Am-Waild, or
Modabbir, who is in the possession of one of
the two persons who claims the right of pro-
perty. In reply to this reasoning of Shafei,
our doctors argue that it is not the evidence
adduced by the possessor which proves the
absolute right of property, because the pos-
session of itself indicates the absolute ripht
and consequently anticipates the proof, which
would else have resulted from the evidence.
it is otherwise with respect to the evidence
adduced by the person not in possession,
because by that absolute right of property is
proved ; * and as the evidence on the part of
the person not in possession occasions proof,
it is therefore admitted, since as the purpose
of evidence is to establish proof, the evidence
which occasions proof must be preferred. It
is to be observed that possession indicates a
right of property absolutely, but not rela-
tively, as in the cases adduced by Shafei : and
hence the analogy conceived by him bet >een
these cases and the case in question is not just
The defendant refusing to swear, the Kazee
must forthwith pass a decree against him. —
IF the defendant refuse to take an oath in a
case where it is incumbent upon him the
Kazee must then pass a decree against him
because of his refusal, and must tender obli-
gatory upon him the object of the claim on
behalf of the plaintiff . Shafei maintains that
the Kazee must not pass a decree immediately
on the refusal of the defendant, but must first
administer an oath to the pi mitiff and then
pass a decree againsr the defendant ; because
the refusal to take an oath admits of three
different constructions : — I. It may proceed
from a desire to avoid a false oath ; — II.
It may proceed from an unwillingness to
take an oath, although, in testimony of the
truth, form an opinion of its being deroga-
tory to the deponent's character ; and III.
It may proceed from a doubt and uncertainty
whether the matter be true or false ; — and as
the refusal to take an oath is a matter of
uncertainty, it cannot amount to proof (since
anything of an uncertain nature is incapable
of constituting proof) ; and as the oath of
the plaintiff manifests the right, recourse
must therefore be had to that. The argu-
ments of our doctois, on the other hand, are
that the refusal of the plaintiff to take an
oath, indicates either a conce sion of the
thing claimed, or an acknowledgment of the
validity of the claim ; since, if the case were
otherwise, he could have no motive to refuse
an oath when the maintenance of his right
depended upon it. Besides, there are no
• As it is not anticipated by any other
circumstance, and consequently must be
admitted.
grounds on which an oath can be tendered to
a plaintiff, since the tradition before men-
tioned expressly evinces that an oath is re-
stricted to the defendant,
The Kazee must givt three separate noti-
fications to the defendant. — IT is incumbent
on the Kazee to give three notifications to the
defendant, by three times repeating to him,
" I tender you an oath; which if you take,
it is well ; if not, I will pass a decree in
favour of the claimant/'— This threefold
repetition is required because of the want of
certainty in case of refusal to take an oath,
since there aubsists a disagreement with
regard to the validity of passing a sentence
upon it. — The necessity of the repetition has
been recited by Khasaf, as from a principle
of caution, and to cut off the defendant
from any further preference). — It is indeed,
an established tenet, that if a decree be
passed on one notification only, it is valid ;
and this is approved doctrine, — -It is most
laudable, however, to give three notifications.
Refusal to swear is of two kinds, real and
virtual. — A REFUSAL to take an oath is of
two kinds : T, real (where the defendant
expressly says, " I will not take an oath") :
and, II virtual (where he remains silent),
—The effect in this latter case is the same as
in the former, provided it be knovn that the
person refusing is neither deaf nor dumb.
This is approved doctrine.
An oath cannot be exacted from the defen"
dant in claims respecting marriage, divorce,
Ail a, bondage, Willa, punishment, or Laan.
— IF a man claim marriage with a woman,
or a woman with a man, and the defendant
in either case deny the claim, then (accord-
ing to Haneefa) it is not necessary to exact
an oath, — The law is the same (according to
Haneefa) with respect to a claim of reversal
[after divorce], or of rescindment in a case of
Aila, — or a claim of servitude, or a claim
of offsping, or claim of lineage, Willa,
punishment, and Laan. Thus if, in a case
of divorce, the wife, after the expiration of
her edit, were to advance a plea of reversal
against her husband, or the husband to
advance a plea of reversal against his wife,
and the defendant should, in e-ther case,
deny the claim, — or if, in a case of Aila,
either of the parties were to plead a rescind-
ment from the vow, and the other to deny
it, — or, if a person were to claim the right
of slavery to another whose condition is un-
knovn, or he whose condition is unknown
claim his being the slave of that other, and
the defendant in either case deny the claim.
— or, if a female slave were to plead her
being an Am- \Valid to a particular man,
and that a certain person is their offspring,
and the man himself deny it,* — or, if a
* This case does not, like all the rest, hold
true when the terms of its are reversed ; for
in case the claim should have been made on
the part of the man, it is considered as
an acknowledgment, and the denial of the
woman is then of no effect.
BOOK XXIV.-CHAP. II.J
CLAIMS
403
person were to plead that another of un-
known birth is his son, or that other plead
that this person is his father, and the de-
fendant in either case deny the claim, — or. if
a person were to plead that another of
known condition hid been emancipated by
him and that he therefore possesses the right
of Willa over him, or that other plead that
he had been e nancipate J by him and the
defendant, in either case, deny the claim, —
or, if a person were to plead that another
had corrmitteJ whoredom, and that other
deny it — or, iis'ly, if a wife should plead
that her husban J had slandered her,— in all
these cas*s it is not nece-isiry (according to
Haneefa) to exact an oit'i from the de Cen-
dant.— The two disciples maintain that it is
requisite t) exact an oath fro n the defendant
in all these cases, excepting in the cases of
punishment or of the Laan ; for they argiu
that a refusal to take an oat'i amounts to an
acknowledgment, as such refusal ifi an argu-
ment that the party is false in his denial : a
refusal to take an oath is, therefore, an ac-
knowledgment either in reality or in effect ;
and acknowledgments are admitted in all
the above cases. This species of acknow-
ledgment, however, is of a doubtful nature,
as it is not a perfectly valid acknowledg-
ment ; and punishment is remitted in con-
sequence of any doubt ; and as Laan is also
punishment in effect, they hold that, in thit
instance also, an oath cannot be imposed. —
The reasoning of Haneefa is that a refusal
to take an oath amounts to a concession of
the object to the plaintiff ; after such re-
fusal, therefore, it remains unnecessary to
exact oath, because of the attainment of
the object independent of it, — (it is most
laudable to consider the refusal to swear
in the light of a grant of concession, as it
avoids the consequence of the defendant
falsifying in his denial). — Now as a refusal
to take an oath is shown to be a concession
of the thing in dispute, it follows that such
refusal can have no effect in the above cases,
since they are not of such a nature as admit
of concession : an oath, therefore, is not
exacted from the defendant in such cases ;
because the advantage proposed, in exacting
an oath, is to enable the Kazee to pass a
decree in consequence of the refusal ; and
this advantage cannot be obtained in such
cases.
OBJECTION.— If a refusal to take an oath
be equivalent to a concession, the refusal of
a Makftib, or of a privileged slave, ought
not to be admitted, gince neither of these is
competent to make a concession
REPLY. — A refusal to take an oath is con-
sidered as a concession, in order to remedy
the evil of contention : the refusal of Moka-
tibs and privileged slaves is therefore ad-
mitted.
OBJECTION.— If a refusal to take an path
be a concession, it ought not to be admitted
in claims of debt, since the subject of a gift
must necessarily be substance, whereas a
debt relates 1 1 • ;1 y to quality .
REPLY. — The validity of a concession of
this nature, in cases of debt, is admitted
in conformity with the conception of the
plaintiff ; for he conceives the thing he re-
ceives to be that actual thing to which he
is entitled. Besides, concession, in this in-
stance, merely means a cessation of obstruc-
tion ; that is to say, the defendant does not
obstruct the plaint if from taking his pro-
perty, and he accordingly takes it, as property
is a muter of bat light concern. — It is other*
wist with respect to the particulars before
me.uioied, as thise ar« noc mitten of light
C-mjern, and hence it ia n>t lawful for the
defendant to mike a gift of them.
A th'uf rj/uving to sujjjr, becones liable
for the proptrey stpltn — AM oach must be
exacted from a thief; anJ if he should
refuse to take it, he bee xnes liable for the
property, but does not subject himself to the
penalty, of am >utation ; because his act in-
volves two consequ ;nccs, namely, responsi-
bility for the property, and the loss of hi*
hand ; and as his refusal establishes the first
coniiquen-tf, bjt not the second, it is there-
fore the same as if the fact hid b^en^ proved
by one man a:id two women, in which case
a responsibility for the property tak;s place,
but not a loss of the hand.
A claim founded on divircs before con-
sum rut ion entitles d w fe to her half djwer.
where the hasband declines swearing — IF a
wife advance a claim against hsr husband,
by asserting that he hid divorced her pre-
vious to consumiutio.i, a.i oath must be
tendered to the husband, and if he refuse to
take it, he becomes responsible for her half
dower, according to all our doctors, because
(according to them), oaths are admitted in
cases relative to divorce, anJ particularly
where the object is property.— '.n the same
manner also, oaths ars admitted in cases of
marriage, where ths wife c'ai.ns her dower,
as this is claim relative to property, which
is established by a refusal to take an oath,
though the marriage be not thereby proved.
— In the si me- manner also, oathes are ad-
ministered in claims of parentage, where the
claim relates to some right, such as inherit-
ance or maintenance (as where a disabled
person claims that he is the brother ol
another, and that his maintenance is incum-
bent upon that other, who denies the same),
—In ca*es also of invalid recessions from
gifts (as where, a person wishing to retrac
his gift, the grantee asserts that he is hi;
brother, and that, on account of such rela-
tion he has no right to retract,— and the
granter denies the same),— an oath is ten
dered-to the defendant, as the objects o
them are the rights allu led to.
Please of consanguinity admit of an oat)
being tendered to the defendant.— AN oath i
not tendered, according to the two disciples
in simple cases of consanguinity, unless
where the relation is of such a nature as t<
be established by the acknowledgment of th
defendant ; as where a person, for instance
asserts that another person is his father, o
401
CLAIMS
in.
his ton, — or a woman asserts that a certain
person is her father, — or a man or woman
claims a right of Willa, or a man or woman
claims marriage, — in wh ch cases, if the
defendant acknowledge the relationship, the
NVilla, or the marriage, they are established
accordingly ; and if the defendant refuse
to nuke oath, this (according to the two
disciples) is equ.valent to ack tojvledjment.
It is o her \vi*e wh^re a wjmm alleges that
a certain person is her son, because in that
case the relationship depends on another,
and therefore, as the acknowledment of the
defendant can have no effect, so neither will
his refusal to take an oath.
Case of a claim of retaliation, — IF a
person claim a right of retaliation upon
another, and the defendant deny it, in this
case (in the opinion of all our doctors) an
oath must be administered to him.— If he
refuse to take it, and the retaliation relate
to the membere of the body, he must in that
case suffer retaliation ; but if it relate to
murder, he must be imprisoned until he
either confess or take an oath of exculpa-
tion,—-This is according to Hineefa — The
two disciples are of opinion that in either
case a fine must be imposed ; because, al-
though (according to their doctrine) a refusal
to take an oath is an acknowledgment, yet
it is attended with a degree of doubt (as
has been already explained) ; and conse-
quently cannot establish retaliation :— a fine
of property is therefore due ; especially
where the bar to the retaliation arises from
a circumstance oa the part of the person
who is liable to the retaliation ; as when the
avenger of blood claims for wilful murder,
and the defendant acknowledges erroneous
murder. The argument of Haneefa is that
the members of the body of a man are con-
sidered in the same l.ght with property, and
hence a concession with respect to them
is admitted in the same manner as it is
admitted in the case of property ; for if a
person should say to another, "cut off my
hand," and that other accordingly cut it off.
he would not be subject to any compen-
sation, which clearly proves that the con-
cession thereof is lawful, although it be not
allowed to the man, in this instance, to cut
off the hand,* as it is attended with no
advantage to him. — In short, concessi ns
are allowed with respect to parts of the
body, but noc with respect to the body
itself ; and as a refusal to swear, in cases of
retaliation with respect to the parts of the
body, is a concession of an advantageous
nature (as being the means of terminating
a contention), it follows that the cutting off
the hand is advantageous in this instance,
in the same manner as it is advantageous to
amputate a limb in a case of mortification,
or to draw a tooth in case of excessive pain.
Wher* the plaintiff's witness are within
•In other words, "to accept of the gift,
or concession./
call, the defendant must give bail for his
appearance for three days. — IF a plaintiff
assert that "his Witness s are in the city,
the defendant must, in that case, be re-
quired to give bail, answer for his appear-
ance within the term of three days, lest he
abscond; and thus the right of the plaintiff
be destroyed : — and it is lawful thus t j take
bail for his appearance (according to our
doctors), as has been already explained. — *
The taking of bail from the defendant, in
this instance, immediately on the prefer-
ment of the alle 'ation by the plaintiff,
proceeds upon a favourable construction of
the law, because of its being advantageous to
the plaintiff, and not materially detrimental
to the defendant : and the reason for taking
it is that it is incumbent upon the defendant
to make his appearance in court upon the
instant of the Aaim (whence it is that a
person is^ immediately despatched to sum-
mon him) ; and as this might prevent him
from going on with any business in which
he may be then employed, it is therefore
lawful to take bail for his appearance. —
The term of three days, as above mentioned,
is recorded from Haneefa ; and that term
is approved.— In taking bail (according to
the Zahir Raw, y it) there is no difference
between an unknown person and one of
established note ; nor between the claim of
a large and of a small sum.
But if the witness be not within call,
bail cannot be required from the defandant.
— THE declaration of the plaintiff however
that "his witnesses are in the city," is
indispensable towards the taking of bail
for appearance ; and hence, if the plaintiff
should say, "I have no witnesses," — or,
"my witnesses are absent from the city,"
bail is not in that case to be required from
the defendant, as it is of no use.f If.
therefore, the defendant, in this instance,
upon being applied to, give bail for his
appearance, it is well : but if he refuse, the
Kazee must then direct the plaintiff to
attend and watch over him, in order that
his own right may not be destroyed : ex-
cepting, however, where the defendant may
happen t j be a tra 'eller, or about to travel,
for then the plaintiff is to watch over him
only whilst in the court of the Ka7.ec ; and
if he should take bail for his appearance
under these circumstances, it must be ex-
tended only to the breaking up of the court
of the Kazee ; because if either the bail or
the watching over him were extended to a
longer period, it would occasion a detriment
to the defendant, in as much as he would
be prevented, during that space, from pur-
suing his journey : but where it is limited
to the time of the sitting of the court, he
is not subjected to any apparent incon-
•See Bail, Vol. II. Book XVIII.
tBecause the plaintiff, being destitute
of witnesses, cannot possibly establish his
claim.
BoojcXXIV.-CHAP. II.]
CLAIMS
vcnience. — The particulars of watching or
attendance will b* explained in treating of
inhibition.
Section.
Of the Manner of Swearing, and requiring
an Oath.
The oath must be taken in the name ^
GOD.— An oath is not worthy of credit
unless it be taken in the name of GOD,
because the Prophet has said "whoever
takes an oath, let him take it in the name
of GOD ; otherwise let him omit the oath
entirely ."—and also, because he has de-
clared "whoever takes an oath otherwise
than in the name of GOD is most certainly
an AssociAToa."*
And the Kazee must dictate the terms of
it.— IT is incumbent upon the Kazce to
desire the swearer to corroborate his oath by
reciting the attributes of GOD,— Thus he
must direct him, for instance, to say. "I
swear by the GOD than whom there is no
other righteous GOD, who is acquainted
with that is hidden and apparent, that
neither by me, nor on my behalf, is the
amount due to Omar which he claims, nor
any part of it "—The Kazee is at liberty
either to add or diminish fiom this oath as
he pleases : but he must not so far extend
his caution as to repeat the oath, because it
is not necessary to swear more than once.—
If a person should swear "by GOD, by the
merciful, by the mo t merciful" —it is co i-
sidered as three oaths : but if the two last
particles of swearing be omitted it is then
only one.— It is to be observed that the
Kazee has the option eithei of adding the
corroboration to the oath, or of omitting it.
fnd simply desiring the defendant to swear
by GOD ' — Some have said that it is im-
proper to prescribe the corroboration to such
as are known to be virtuous, but that to «11
others it is necessary.— Others, again, have
said that the corroboration is necessary in
claims to a great amount, but not where the
amount is small.
Swearing by divorce or emancipation must
not be admitted— A DEFENDANT mut not
swear by divorce or emancipation (as if he
should say, "if the claim preferred against
me be just, my wife is divorced," or "my
slave is emancipated") : because of the tradi-
tion before quoted. — Some, however, have
said that, in our times, if the plaintiff should
importunately require it, the Kazee may
then administer to the defendant an oath by
divorce or emancipation ; since in this age
there are many men who scruple not to
swear by the name of GOD, but who are,
nevertheless, averse from an oath by eman-
cipation or divorce.
Jews must swear by the Pentateuch, and
Christians by ths Gospel.— THE Kazee must
administer an oath in a Jew, by directing •
him to say, "I swear by the GOD that
*Arab, Moosharik, meaning a Pagan, or
Paolytheist.
revealed the Pentateuch to Moses ;" — and
to a Christian, by directing him to say7. "I
swear by thi GOD that sent down the gospel
of Jtsus ; "—because the Prophet, upon a
certain occasion, administered an oath to a
Jew, by saying to him, "I desire you to
swear by the GOD that hath sent down the
Pentateuch to MOSES, that such is the 'law
with regard to whoredom in your book ; "
and also, because the Jews believe in the
divine mission of MOSES, and the ChrUtians
in the divine mission of Jtsus GJ:RIST. — In
the administration of oaths to them, there-
fore, it is necessary to corroborate them, by
a specification of the books which have been
received through their respective prophets.
Pagans must swear by GOD. — THE Kazee
must administer an oath to a Majoosce by
directing him to say "I swear by the GOD
that created fire." — This is recorded, by
Mohammed, in the Mabsoot ; but it is related
of Haneefa, in the Nawadir, that he never
administered an oath otherwise than in the
name of GOD — Khasaf, moreover, reports
that Haneefa never gave an oath to any
excepting Christians and Jews, otherwise
than in the name of GOD, because in con-
founding fire with the name of GOD, a
reverence is shown to it to which it is not
entitled : contrary to the Old or New
Testament, as these are the books of GOD,
and therefore entitled to reverence. This
doctrine has been adopted by several of our
modern doctors.
AN oath cannot be administered to an
idoUtor otherwise than ir, the name of G op,
because all infidels believe in GOD, as is
evioent from this sentence of the Koran, "!F
YE ASK OF THEM (the infidels) WHO HATH
CREATED YOU, VEKILY THEY WILL ANSWER,
GOD ALMIGHTY."
Uaths must not be administered in an infidel
place of worship. — AN oath must not he admi -
altered to infidels in their place of worship,
because the Kazee is prohibited from entering
such a place.
The oaths of Mussulmans need not be cor-
roborated by swearing them at a particular
time, or in a particular place. — IT is not
necessary, in administering an oath to
Mussulmans, to corroborate it by means of
the time or place (such as by the administera-
tion of it on a Friday, 'or in the mosque),
because the object of an oath is a reverence
to him in whose name it is taken, and this
depends not on any particular time or place.
— Besides, if the corroboration of paths to
Mussulmans, by a restriction to time and
place, were necessary, it would subject the
Kazee to an inconvenience, in the necessity
he would be under of attending at the par-
ticular time and place ; and the law admits
not of inconvenience, more especially where
the fulfilment of right, or the execution of
justice, does not depend upon it.
Cases in which the oath of the defendant
must relate to the caust ; and cases in which
it must relate to the object.— IF a person
allege that he has bought a slave from
406
CLAIMS
[VOL. III.
another for a thousand dirms, and the seller
deny the fact ; in this cast the seller must be
required to swear, in the following manner,
"I swear by GOD that there does not abso-
lutely at present exist any contract of sale
between me and the plaintiff ; " — and not in
this manner, "I swear by GOD that I have
not sold, &c."— -because it often happens
that a sale is made, and afterwards an Akala,
or dissolution of the contract, takes place. —
In cases of usurpation it it necessary that
the defendant swear, in the presence of the
plaintiff, in this manner, "there is no part
of that which you allege that I have usurped
from you, dut by me," and not "I have not
usurped, &c," — because an usurpation is
often done away by the proprietor selling or
making a gift of the thing to the usurper—
In cases of marriage it is requisite that the
defendant swear to this effect, no marriage
does at this time subsist between me and the
plaintiff;" — because a nrurriage is sometimes
dissolved by Khoola — In cases of divorce the
husband must swear "this woman is not at
present finally separated from me, by the
divorce which she pleads :"— -and not, in an
absolute manner, that "he has not divorced
her ;" — because a new marriage sometimes
takes place after a Talak B*yeen ; or com-
plete divorce. — Thus, in all these cases,
the Kazee must swear the defendant with
respect to the object of the plea, and not
with respect to the cause of it ; since,
if he were to administer the oath with
respect to the cause, it might be injurious
to the defendant. — What is here advanced
is conformable to the opinion of Hane^fa
and Mohammed. — Aboo Yoosaf is of opinion
that, in all these cases, the Kazee must
swear the defendant with respect to the
cause (except where the defendant par-
ticularly requests the contrary) ; because
sales, for instance, ire sometimes made,
and afterwards dissolved . divorces some-
times executed and afterwards succeeded
by a marriage de novo ; and usurpatio .s
sometimes done away by gift or sale : — in
all these cases, therefore, the oath must
be administered with respect to the object.
— Some have laid that the Kazee ought to
be guided by the denial of the defendant : —
in other words, if the defendant deny the
cause, let the oath relate to the cause, — or, if
he deny the effect, let the oath relate to the
object. — It is to be observed that (according
to Haneefa and Mohammed) the oath must
in every instince relate to the object, where
the cause is of such a nature as renders it
liable to be done away by some other cause ;
excepting only where, in resting the oath
upon the object, the tenderness due to the
plaintiff is likely to be destroyed ; for, in
this case, the oath (according to all our
doctors) must be rested upon the cause.
Thus, if a wife, having been completely
divorced, should prefer a claim of main-
tenance against her husband, and the hus- |
band should not think himself bound to
comply, because of his being of the sect of
Shafei, — or, if a proprietor of a house, or of
land, should prefer a claim of pre-emption
against the purchaser of a contiguous pro-
perty on a plea of Shafft, and the purchaser,
being of the sect of Shafei, should not
admit h:s claim, — in these cases (accord-
ing to all our doctors) the oath ought to
relate to the ctuse ; — for, although the de-
fendant could not deny, upon oath, the causa
or circumstances of the case, still he might,
upon oath, deny the object ; — in other words,
he might deny the validity of the claim as
founded upon these circumstances ; if, there-
fore, the oath were to relate to the object, it
would evidently be injurious to the plaintiff.
— If, on the other hand, the cause be of such
a nature as canont be removed or done away
by some other cause, in that case the defen-
dant's oath (according to all our doctors)
must relate to the cause. — Thus, if a Mussul-
man slave should plead his having been
emancipated, and his master deny this, in
that case (as the LAW does not admit of a
Mussulman becoming a slave after having
been once free) the oath tendered to the
master must relate to the cause ; — in other
words, he must be required positively to
swear "whether he has ever emancipated
this slave, or not ?" — It is otherwise, how-
ever, with respect to a female Mussulman
slave, or an infidel male slave ; because both
of these may be again subjected to slavery
after having been rendered free ;— the female
slave, by being first emancipated, and then
apostatizing and being united to a hostile
country ; — and the male slave, by being first
emancipated, and then breaking his contract
of fealty, and being united to a hostile
country.
In a case of inheritance, the oath of the
defendant must relate to his knowledge. — IF
a person acquire a right to a slave by inhe-
ritance, and another prefer a claim of right
to the said slave, in thit case the oith of the
defendant must relate to his knowledge ; —
that is, he must be required to swear that
he does not know the slave in question to be
the property of the plaintiff ;— because not
being acquainted with the acts of the person
trom whom the inheritance descends, he
cannot absolutely swear that the slave is not
the property of the plaintiff ; — whereas, if
he had acquired the slave by a gift or pur-
chase, he could swear positively as to his
right of property, since purchase and gift
are both causes of a right of property.
When a defendant enters into a compo-
sition with the plaintiff, an oath cannot
afterwards be exacted from him. — IF a per-
son prefer a claim against another, and the
defendant deny it, but should afterwards
give the plaintiff ten dirms, either as an
ixpiation for his oath, or as a composition
For it, such expiation or composition is valid ;
Because it has been so related by Omar ; and
the plaintiff cannot afterwards demand an
oath from the defendant, as having himself
destroyed this right.
BOOK XXIV.— CHAP. Ill]
CHAPTER III.
CLAIMS.
407
TAHALIF ; OR THE SWEARING OF BOTH THE
PLAINTIFF AND THE DEFENDANT.
A seller and purchaser nre mutually to
swear where they both disagree, a~d are
destitute of evidence — IF a seller and pur-
chaser should disagree, the purchaser assert-
ing that the price of the coods was an hundred
dir ns, and the sailer, that it was more, —
or, if the seller should acknowledge the article
sold to be so much, and the purchaser assert
that it was more,— in this case, if either
of them adduce evidence in support of his
assertion, the Kazee must pass a decree in
his favour ; because attestation is stronger
than simple assertion.— If, on the other
hand, both of them should adduce evidence
in support of their respective assertions,
then the evidence of the party that attests
most must be admitte"1 ; because the object
of evidence is proof ; and with respect to the
excess, there is no opposition of evidence. —
If the seller and purchaser should disagree
with respect both to the price and the goods,
then the 'evidence of the seller with respect
to the price is preferable ; and the evidence
of the purchaser is preferable with respect
to the goods. If, however, both parties be
destitute of evidence, then the Kazee must
say to the purchaser "if you acquiesce in
the price claimed by the seller, it is well : if
not, I will dissolve the contract ; " — and to
the seller, "if you are contented to yield the
quantity of goods claimed by the purchaser,
it is well ; if not, I will dissolve the con-
tract ; " — because the object is to terminate
the contention ; and it is probable that his
thus addressing them may terminate the
contention, since the parties may possibly
be averse to breaking off the contract ;
when, therefore, they perceive that if they
do not agree, the contract will be broken,
they may be content to make up their diffe-
rence,— If, nevertheless, they should not
even then agree, the Kazee must make each
of them swear to his denial of the claim of
the other. — This mutual swearing, before
seisin of the article of sale, if conformable
to analogy ; because the seller demands a
large price, which the purchaser does not
admit ; whilst, on the other hand, the pur-
chaser demands from the seller the delivery
of the goods at the rate of purchase money
he has paid which the seller refuses to
execute. Each, therefore, is a defendant ;
and hence an oath must be required from
each. — After the delivery of the goods to
the purchaser, indeed, the mutual swearing
would be contrary to analogy ; because the
purchaser having received the goods has no
further cla<m ; and as there remains only
the claim of the seller for the excess of the
price, an oath can only be exacted from the
purchaser, who is the defendant, It appears,
however, from an infallible guide, that an
oath must, in this case also, be exacted from
each, because the Prophet has said "Where
a disagreement takes place between a buyer
and seller, and the subject of the sale is
extant and present, an oath must in that
case be administered to each, and the pur-
chaser must afterwards restore the goods to
the seller, and the seller the price to the
purchaser." It is to be observed that where
it is necessary to administer an oath to both
parlies, the purchaser must be first sworn.
— This doctrine is conformable to the most
recent opinion of the two disciples ; and it is
aiso agreeable to one report of Haneefa, It
is also the most authentic doctrine ; because
the denial of the purchaser is of the greatest
importance, since the price is first demanded
from him ; and also, because, in case of his
refusal to take the oath, it would be attended
with the immediate advantage of inducing
the obligation upon him of the payment of
the price ; — whereas, if the seller were first
sworn, it would nevertheless be necessary to
defer the demand upon him of a delivery of
the goods until he had received payment of
the price. — If the parties should disagree in
a sale of goods for goods (that is to say, in a
barter), or of price for price (that is, in a
Sirf sale), in this case the Ka/ee is at liberty
either to swear the seller or the purchaser
first ; because in such a case the seller and
purchaser are both upon an equal footing.
Formula of the oaths of a seller and pur-
chaser.— THE nature of the oaths, in a dis-
agreement between buyer and seller, is this.
— The seller swears "by GOD, I have not
sold the thing in question for a thousand
dirms ;" and the purchaser shears "by GOD,
I have not bought it for two thousand dirms.
Mohammad, in the Z>edat. has said, "let
the seller swear by GOD, I have not so'd it
for ONE thousand DIRMS, but for TWO thou-
sand ; — and let the purchaser swear, by GOD,
I have not bought it for TWO thousand DIRMS,
but for ONE thousand."— In other words,
the negation and affirmation ought to be
coupled together for the greater caution —
The most authentic doctrine, however, is
that an oath *>f negation is sufficient ; because
oaths proceed upon denial, as appears from
the tradition concerning Kissamit* ; for it is
related that the I rophet desired the people
of Kissamit to swear that "by GOD, they
had not committed the murder, and did not
know the murderer."
Where both parties swear, the sale must be
dissolved, by an order of the K«zee. — IF the
seller and purchaser, in a disgreement,
should both take an oath, the Kazee must in
that case dissolve the sale. — This is the adju-
dicatation of Muhammad : and it evinces that
the sale is not of itself dissolved by the
mutual swearing of the parties ; because, as
the plea of neither party is established, a
sale continues of an undefind nature ; and
hence the Kazee must dissolve it, as well to
terminate their contention, as because that
•The name of some Arabain district of
tribe, where probably one of the Prophet's
followers was murdered.
408
CLAIMS.
[VOL III.
where the price is not established, a sale re-
mains without a return ; and this being an
invalid sale most consequently be dissolved,
since it is indispensably requisite that all
invalid sales be dissolved.
A seller or purchaser, upon declining to
swear, loses his cause. — IF, in a disagree-
ment between a purchaser and a seller, one
of the two decline swearing, the claim of the
other is in that case established against him ;
because by such refusal the party concedes
to the other the article claimed by him ; — for
as hit plea is thus rendered incapable of
controverting the plea of the other, it follows
that he accedes to that plea.
The parties are not to be sworn where their
disagreement relates to something not es-
sential to their contract. — IP the parties
should disagree with respect to the period
fixed for the payment of the price, or with
respect to the option of determination, or
with respect to a partial payment that may
have been made of the price.— in none of
these cases are the parties to be sworn, be-
cause the disagreement, in this instance,
relates to something not within the original
scope of the contract. This disagreement,
therefore, resembles a disagreement with
respect to an abatement or remission of the
price ; — in other words, if a seller and pur-
chaser should disagree with regard to a re-
mission of part or the whole of the price,
they would not in that case be sworn ; and
so also in the case in question. — The reason
for what is here advanced is that the dis-
agreement, in all of the supposed cases, re-
lates to a thing which, if annihilated or done
away, would not affect the existence of the
contract of sale. — It is otherwise, however,
where the disagreement relates to the species
of the price (such as whether it is to con-
sist of dirms of Bokhara or of Bagdad), — or
with respect to the genus of it (such as
whether it is to consfst of dinvis or of
deenars), for such a disagreement is the
tame as if it related to the amount of the
price, — in which case oaths are administered,
for this reason, that the genus and species of
the price are iaseparable from the substance
of it ; because the price is a debt due by the
purchaser ; and a debt is only to be known
and ascertained by a definition of its genus
and species. The period fixed for the pay-
ment of the price, on the contrary, is not of
this nature, as it is not a species of it, whence
it is that the price continues extant and fiim
after the promised time of payment has
elapsed.
In dispute respecting any super added
stipulation, the assertion of the respondent
must be credited. — IF a disagreement take
place between a .seller and purchaser with
respect to the condition of option, or the
period of payment, the assertion of the ic-
spondent* supported by an oath, must be
» Arab. Moonkir, — meaning, the person
who denies.
credited ; because optional conditons, and
extensions of the period of payment, are
accidents in a sale;* and with regard to
accidents, the assertion of the respondent
must be credited in preference.
The parties are not to be sworn, where the
goods perish in the hands of the purchaser.
— IF, after the destruction of the subject of
a sale, in the hands of the purchaser, a dis-
agreement should take place between the
purchaser and the seller respecting the
amount of the price, the parties, in that
case (accor -ing to Haneefa and Aboo Yoosaf),
are not to be sworn; but the assertion of the
purchaser must be credited. — Mohammed
alleges that, in this case, the parties must
b« both sworn, and afterwards tha sale dis-
solved, in return for the valua of the subject
of it which had been destroyed ;—that is to
say, the purchaser must pay the value of the
goods to the seller, who must return to the
purchaser the price of them, — Such, aUo, is
the doctrine of Shafei. — The same difference
of opinion obtains in cases where the subject
of the sale has been removed from the pro-
perty of the purchaser by gift or the like, or
where it is in such a condition as would \ e -
elude the return of it in case of a 'infect. —
The reasoning of Mohammed ftrfwise,*?!. in
support of their opinions, is that 'each |. arty
pleads the existence of a contract, different
from what is claimed by the other ; and e*ch
of them, consequently, denies the assertion
of the other.
OBJECTION. — The advantage of adminis-
ering an oath to each of the parties is that
the sale is thereby dissolved, and the goods
returned by the purchaser to the seller, and
the price by the seller to the purchaser. —
Now this object cannot be obtained after
the destruction of the subject of the sale,
and therefore there can be no advan-
tage in the doctrine of Mohammed, of
swearing both parties under such circum-
stances.
REPLY. — The advantage is that it relieves
the purchaser from the excess of the
price, in case the seller should refuse to
take an oath, — as, in the same manner, it
obliges the purchaser to pay such excess,
in case he himself should refuse to ,take an
oath.
-THEY must therefore both be sworn, in the
same manner as when, after the destruction
of the subject of the sale, they disagree with
regard to the genus of the price (that is,
whether it consist of dirms or deenars : and
after swearing, the purchaser must give the
value of the goods to the seller, and the sei'er
must return the price to the purchaser. The
arguments of Haneefa and Aboo Yoosaf, in
support of their doctrine upon this point, are
twofold. — FIRST, the swtaring of both par-
ties, after delivery of the goods, is repugnant
to analogy ; because the purchaser has in
* That is, are superadded to the contract.
BOOK XXIV.— CHAP. Ill ]
CLAIMS
409
this case, received whole and complete the
thing which he claims : the swearing of both
parties mor o/er ;s ordained by the LAW in
cases only where the subject of the sale is
extant and complete, to the end that the sale
may be dissolved , but this cannot be con-
ceived in a case where the subject of the sale
has perished ; swearing the parties, there-
fore, after a destruction of the property is
not that mutual swearing expressed in the
LAW. — SECONDLY, in the case in question the
object of the sale (namely, the complete
acquisition of the coods by the purchaser) is
obtained ; and af'er the completion of the
object, a disagreement with respect to the
instrument (that is, the contract of sale) is
of no importance — Moreover, the advantage
set forth by Mohammed is of no account ;
since no advantages are attended to ex*
cepting such as are occasioned bv the con-
tract of sale ; and the advantage in question
is not occisioned by the contract. — All that
is here advanced proceeds on a supposition
that the price is a money -debt. —If, how-
ever, it consist of any specific article, such
as cloth for instance, both the parties are to
be sworn, according to all our doctors ; be-
cause, Yin this case, a subject of sale still
exists (since the price, where it consists of
any thing specific, may be considered as the
subject) ; and upon both parties swearing,
the sale must be dissolved ; and the seller
must return the price to the purchaser; and
the purchaser must give a similar in lieu of
the subject of the sale to the seller, provided
it was of tha*: kind of thing compensable by
similars ; or, if otherwise, he must pay the
value,
Case of a dispute concerning the price of
two slaves, where one of them dies — IF a
person purchase two slaves by one contract,
and one of them be afterwards destroyed,
and a dispute arise betwixt the parties con-
cerning the amount of the price, the seller
asserting that it was two thousand dirms,
and the purchaser asserting that it was one
thousand, in this case (according to Haneefa)
the parties are not to be sworn ; on the con-
trary, the assertion of the purchaser must be
credited. This, however, proceeds on the
supposition of the seller being unwilling to
receive the price of the living slave only,
and to relinquish the price of the slave that
is dead —In the Tama Sagheer it is related
that, according to Haneefa, the assertion of
the purchaser ^is to be credited unless the
seller be willing to accept of the price of the
living slave only.— Aboo Yoosaf alleges that
both parties must be sworn with regard to
the living slave ;— that the sale, so far as
relates to him, must be dissolved ;— that the
assertion of the purchaser must be credited
with respect to the dead slave ;— and that,
therefore, the purchaser is responsible for
the proportion of the dead slave, and not for
the whole price.— Mohammed, on the other
hand, maintains that both parties must be
sworn with regard to both slaves ; and that
afterwards the purchaser must return the
, living slave and the value of the dead one;
i because, as (in his opinion) the destruction
! of the whole subject of sale does not prevent
I the swearing of both parties, it follows that
I the destruction of a part only dpet not pre-
, vent it, a fortiori — The reasoning of Aboo
| Yoosaf is that as the obstacle to the swear-
i ing of both is grounded only on the destruc-
i tion of the subject or the sale, it ought of
i course to operate only in the degree in which
it may have been destroyed — The reasoning
I of Haneefa is that the swearing of both
i parties, although repugnant to analogy, is
, yet established by the LAW, in cases where
i the subject of the sale still completely exists:
i but where a part of the subject is destroyed,
! it does not completely exist ; because the
complete existence of it supposes the exist-
ence of the whole ; and the whole cannot
exist hut by the preservation of all its parts.
— If, on the other hand, both parties should
swear with respect to the living slave only,
it is evident that this cannot be effected, but
by a reference to his particular value. — Now
as both slaves are included under one price,
the particular value of each cannot be
known but by conjecture ; and hence it
appears that the swearing of both parties,
under such circumstances, must be referred
to something uncertain ; and this is illegal.
— If. however, the seller be willing to relin-
quish his si erht to the destroyed slave, and
to consider him as having never existed,
both parties mav, in that case, be sworn as
to their denial <^f the claim of the other,
respecting the whole price of both the
slaves; because the whole of the price is
then opposed to the living slave, from the
concession of the seller to take ihe living
slave only in lieu of the whole of the price,
and to consider the dead slave as excluded
from the contract.— What is here advanced
is agreeable to the exposition of several of
our morlein doctors. They have also ex-
plained the meaning of the sentence, in the
Jama Saehecr, to be that the seller shall not
absolutely receive anything for the dead
•lave ; and they have connected the excep-
tion with the omission of swearing of the
parties —Others «-.f our moderm expositors
however, have explained it to mean that the
seller, shall agree to take, as the price of the
dead slave only, what the buyer may
acknowledge, and nothing more ; and they
have connected the exception with the non-
swearing of the buyer only.— Thus they
have explained it to mean that the seller
may take the living slave, without the
necessity of the purchaser's taking an oath
provided he b«> willing to take, for the dead
slave, what th» purchaser may of himself
acknowledge to have been his value.
Mode of swearing the parties in this
instance.— the mode of swearing the parties,
in this instance (accroding to. Mohammed)
is the same as in a case of ; non-existence of
the subject of the sale.— If, therefore, both
take an oath, and differ in thair assertions
•—and if one or both should require the disgo-
410
CLAIMS
[VOL. Ill
lutionofthe contract, the Kazee must, in
that case, dissolve it, and command the pur-
chaser to return the living slave, and ihe
value of the dead one; and, in the deter-
mination of the value of the dead slave, the
purchaser's assertion must be crediled. —
There is, however, a difference of opinion
among our modern commentators, in their
exposition of the doctrine of Aboo Yoo-af
with respect to the mode of swearing thr
parties, in this instance.— The most approved
mode is, to tender an oath to the purchaser
that ''he had not purchased those two^slaves
for the price claimed by the seller ;"— and
in case of his refusal to take the oath, to
confirm the claim of the seller : but if he
swear accordingly, an oath must then be
tendered to the seller, that "he did not sell
these two slaves for the price claimed by the
purchaser;" and if he should refuse to take
it, th* claim of the purchaser must be con-
firmed : but if he swear accordingly, the sale
(so far as it relates to the living slave) must
then be dissolved, and the purchaser must be
responsible for the price of the living slave,
— In proportioning the respective prices of
the two slaves, regard must be had to the
value they bore on the day in which the
purchaser took possession of them. If the
parties should disagree as to the value the
dead slave bore on the day of delivery, the
bare assertion of the seller is to be credited
in preference to that of the purchaser. If,
however, either of the parties produce evi-
dence, it must be admitted in preference to
the other's assertion ; and if both should
produce evidence, that of the seller must be
admitted. — This is agreeable to the analogy
set forth and exemplified in a case recited in
the Mabsoot : and which is as follows : — If a
person, having purchased two slaves by one
contract, and taken possession of them both,
should afterwards return one of them on
account of a defect, and the other should
then die in his possession, in that case he
must pay the price of the slave that died ;
and he becomes exempted from the price of
the other that he returned : — and, in pro-
portioning their respective prices, r gard
must be had to the value of each on the day
in which the purchaser obtained possession
of them. — If the parties should disagree
concerning the value of the dead slave, the
assertion of the seller must be credited, as
he is the defendant or respondent, since both
parties admit that a price is due, and t e
purchaser, proceeding on his assertion of the
inferior value of the slave that is dead,
pleads that he has only a small sum to pay.
which the teller, asserting the superior value
of the dead slave, denies. — If both parties
adduce evidence, the evidence of the seller
must be credited, as it proves most, since it
proves the superior value of the dead slave.
— The reason of thia is that, in oaths, regard
is had to the reality ; because, as the oath of
each opposes that of the other, and as they
both know the real state of the case, it
follows that the foundation of the oath rests
upon the real state ^of the case ; and as the
seller is the real defendant, his oath must
therefore be credited. In evidence, on the
other hand, regard is had to appearance ;
because, as the witnesses are not acquainted
with the real state of the case, with respect
to them, that must be credited which is
: apparent ; and the seller is apparently the
| plaintiff in this instance, since he claims a
i greater quantity of price for the dead slave.
The evidence, therefore, produced by him
must also be admitted in preference, since it
has a superiority, because of its excess of
probability.-— From this explanation we may
collect the principle on which Aboo Yoosaf
has grounded his doctrine, that "the asser-
tion of the seller is to be admitted with
respect to the amount of the price of the
| dead slave, and the evidence adduced by him
I must be preferred, in case of the parties con-
tinuing to disagree with respect to the price
of the said slave after they have both been
sworn "
Case of a disagreement concerning the
price, in the dissolution of a contract of sale,
after delivery of the subject of it. — IF a per-
son purchase a female slave, and take posses-
sion of her, and the parties afterwards agree
to dissolve the sale, but disagree concerning
the price in this case they must be both
sworn ; and after the swearing of them both,
the original sale reverts, and the dissolution
becomes void. — It is to be observed that the
swearing of both parties, in the dissolution
of a sale, is not founded on the sacred writ-
ings, since the ordinance there respects a
case of absolute sale, and sale ceases to exist,
in case of a dissolution, for the dissolution is
a breaking off of the sale with respect to the
parties. — The swearing of the parties, there
fore, in this instance, proceeds upon analogy;
because the example under consideration pro-
ceeds upon a supposition of the seller not
having received back the article after the
dissolution, in which case the swearing of
the parties is not repucmant to analogy ; but
rather agreeable to it.— It is on this ground
that we determine upon a case of hire, from
its analogy to a case of sale before seiein (as
where, for instance, a lessor and lessee disagree
with regard to the object of their contract
prior to the expiration of the lease:— in which
case both parties are sworn, because of the
analogy this bears to a case of sale, prior to
the receipt of the poods by the purchaser):—
and also, that we determine with respect to
the heir of a contracting party from the
analogy his situation bears to that of the con-
tracting party himself (as where the heir of
a purchaser and the heir of a selle" disagree
— in which case they must both bs sworn, in
the same manner as the purchaser and the
seller would have been).— -It is upon the same
ground, also, that we determine the value of
an article to be analogous to the substance
of it, in cace of the destruction of the sub-
ject of the sale whilst in the possession
of the seller by some other person than the
purchaser (as where, for instance,
BooKXX»V.-CHAP III]
CLAIMS
411
person kills the subject of the sale,* whilst
yet in the hands of the seller, delivery not
having been made to the pu.cuaser ;- in
which case the slayer must pay the value,
which then stands as a substitute for the
substance of the articles sold) ; — whence, if the
seller and the purchaser disagree concerning
the price they must both be sworn, and the
•ale dissolved : and the value of the slave
given to the seller ; in the same manner as
the substance would have b^en given, had it
been extant. — It is to be observed, however,
that if the seller receive the goods after a
dissolutton of the contract, and the parties
then disagree concerning the price, they are
not to be sworn, according to Haneefa and
Aboo Yoosaf. — Mohammed maintains that in
this case also a Tahalif, or mutual oath, is
tendered to the parties, because here also
(according to his tenets) the swearing is
agreeable to analogy
Where the price has been paid in advance,
and the patties agree to dissolve the contract,
but disagree concerning the same advanced, the
assertion of the seller must be credited — Ira
person sell a Koorf of wheat, by a Sillim con-
tract, for ten dirms, and the parties after-
wards agree to a dissolution of the contract
of Sillim, but disagree concerning the price,
in this case the assertion of the seller who
has received the advance! must be credited :
and Sillim contract does not in this in-
stance revert, the dissolution still continuing
in force ; because dissolution, in a case of
Silliam sale, is not merely a breach of the con-
tract, but an abrogation of it, whence the
Sillim contract cannot revert ; (contrary to a
dissolution of a simple contract of sale). —
Hence, if the price advanced consist of goods,
and the person who has received the advance
wish to return them to the purchaser on ac-
count of a defect, and the Kazee pass a decree
to that effect, with the consent of both par-
ties,—in that case, if the goods be destroyed
prior to the return of them to the purchaser,
the contract of Sillim does not revert. A
contract of actual sale would however revert
under such circumstances ; and this case
plainly shows that there is a difference be-
t #een contracts of sale and contracts of Sillim.
Cases of disagreement between a husband
and wife respecting the dower. — IF a husband
and wife disagree concerning the dower or
marriage settlement, the husband asserting
that it was one thousand dirms, and the wife
that it was two thousand, in this case the
party that brings evidence must be credited,
as this establishes the plea of that party upon
proof : and if both bring evidence, that ad-
duced by the woman must be preferred, as it
"Supposing it to consist of a slave or
animal.
t About 7,100 Ib. weight, or twelve camel-
loads.
I Arab. Mooslim-ali-bee, meaning the
seller, or person to whom the price has been
advanced.
proves most. — This is where the woman's
Mihr Misl, or proportionable dower, falls
short of what she claims —If however,
neither of the parties produce evidence, they
are to be sworn (according to Haneefa) ; but
the contract is not dissolved ; because the
only effect of the swearing in this instance,
is that it annuls the bargain with respect to
the dower, in the same manner as if no
bargain had ever existed ; but this does not
engender any doubt with respect to the
marriage itself, since the dower is not an
essential, but merely a dependent of the
marriage :*— It is otherwise in a case of sale
for taere the annulment of the bargain, with
respect to the price, destroys the contract (as
was before observed"), and the sale is con-
sequently dissolved. —In the case in question,
afier the parties swearing, a proportionable
do.ver must be adjudged to the woman.— If,
on the other hand, the woman's propor-
tionable dower, and the sum acknowledged
by the husband, be equal, if her propor-
tionable dower fall short of what he acknow-
ledges, the K<izee must, in that case, pass a
decree in favour of the husband, as apparent
circumstances are on his side. — If the wife's
proportionable dower be equal to what she
claims, or if exceed aer claim, the Kazee
must, in that case, pass a decree in favour of
her claim.— If the propertionable dower be
greatet than what is acknowledged by the
husband, and less than what is claimed by
the wife, the Kazee must, in that case,
adjudge a proportionable dower to the wife ;
because, atter the swearing of both parties,
nothing is established either greater or less
than the proportionate dower, which is
therefore a mean. — Ti*e compiler of the
Hedaya observes that the doctrine here
advanced, of first swearing both parties,, and
then aJj'idging the proportionable dower, is
the doctrine of Koorokuee : and it proceeds
on this principle, that under the existence of
a stipulated dower, no attention is paid to a
proper or proportionable dower ; — and as the
mutual swearing of the parties is the means
by which that is to be set aside, the oaths are
therefore tendered to the parties, in the first
instance, in all the above cases ; that is.
whether the proportionable dower be equal
to, or greater than, the c'aim of the wife ; or
whether it be equal to, or less than, that of
the husband. — In the opinion of Haneefa and
Mohammed, the oath is first, to be adminis-
tered to the husband, in order that the
advantage arising from his declining to
swear may be quickly obtained : for, as it is
his business first to advance the dower, he
must be first sworn, — in the same manner as,
in a case of seller and purchaser, the pur-
chaser is first sworn.— The exposition of
Razee is, however, different ; but as that as
well as the disagreement of Aboo Yoosaf,
have been particularly explained under the
*3ce vol. I p. 44.
412
CLAIMS
[VOL. III.
head of marriage, it is not necessasy to
repeat them.
IF a husband and wife disagree concerning
the dower. — the husband asserting that he
had agreed to give a particular male stave,
and the wife asserting that he had assigned
a particular female slave,— in this case the
rule holds the same as in that immediately
preceding ; that is, if the woman's proper
dower b»i equal to or greater than, the value
of the male slave, the Kazee must adjudge in
favour of the husband ; but if it be equal to,
or greater than, the value of the female
slave, the Kazee must decree in favour of the
wife. — The only difference between this case
and the preceding, is that if the female slave
and proportionable dower be equal in point
of value, the wife is, in that case, entitled to
the value, and not to the slave substantially ;
because she cannot possess the slave without
the consent of her husband, which she' is
not, in the instance, supposed to have
obtained
Case of a dispute between a lessor and
lessee, concerning the rent, or the extent of
the lease, before delivery of the subject.— If a
lessor and lessee, before enjoyment of the
object of the contract (that is, before the
usufruct of it), disagree concerning the
amount of the rent, or the extent of the
lease, they must in that case be both sworn ;
and after swearing, the contract must be
dissolved, and each party must return to the
other whatever he may have received — The
reason of this is that the swearing of both
parties, with regard to sale, in case of a dis
agreement prior to the purchaser's seisin of
the goods, is conformable to analogy, as has
been already demonstrated. — Now a lease
prior to the enjoyment of ^the usufruct, is
similar to a sale prior to seisin of the subject
(and such is the case here considered) — If,
therefore, the parties disagree concerning the
amount of the rent, the oath must be first
administered to the lessee, as he denies the
obligation of the rent, — If, on the other
hand, they disagree concerning the extent
of the subject of the lease, the oath must be
first administered to the lessor. —If either of
them refuse to take the oath, the claim of the
other is thereby established. — If one of them
pioduce evidence, his claim is established ;
but if both bring evidence, that adduced by
the lessor must be preferred, in case of the
disagreement relating to the quantity of the
rent ; and that of the lessee, in case of its
relating to the extent of the lease.— If they
disagree in both points, the evidence of each
is in that case to be credited, in the excess
which it may prove.— For instance, the
lessor claims the lease to have been made
for a period of one month, in exchange for
ten dirms, and the lessee claims a period of
two months in exchange for five dirms ; in
which case the Kazee must adjudge it to be
for a period of two months in exchange for
five dirms.
Case of the name nature, after delivery of
he subject. — IF a lessor and lessee disagree,
after the receipt of the object of the lease
the parf'es are not to be sworn, but the
assertion of the lessee must be credited,
according to all our doctors :— according to
Haneefa and Aboo Yoosaf, evidently, be-
cause (in their opinion) the destruction of
the object of the contract is a bar to the
swearing of the parties :— and, in the same
manner, according to Mohammed, because
his tenet, that the destruction of the object
is not a bar to the swearing of both parties,
relates only to the object of a &ale, and is
founded on a principle that the object of a
sale may be considered as price, and the
swearing of both parties (that is, of the
buyer and the seller) is with relation to the
price ; — if, therefore, the rule of swearing
both parties were admitted in tru case in
question, and the contract were afterwards
to be annulled, it must necessarily follow
that the object of the lease could not be con-
sidered as price; because the object of the
lease is usufruct or advantage; and advan-
tage is not in itself price, and cannot be
considered as such but from the contract ;
and, in the case in question, it becomes
evident that there is no contract. — Now
since in this case it is impracticable to swear
both parties the assertion of the lessee is
therefore redited as he is the defendant
and denier —If, on the other hand, the lessor
and lessee dispute after the receipt of part
of the object of the lease, they must be both
sworn, and the contract dissolved with re-
gard to what remains. — With reipect to
what is past, in this instance, the assertion
of the lessee must be credited ; because a
lease is contracted anew every moment, in
proportion to the progress of the usufruct,
— Thus a new contract is opposed to every
individual particle of advantage or usufruct.
— It is otherwise in a case of sale, as a con-
tract of sale is opposed to the whole of the
subject of it : for which reason a sale, when-
ever it becomes obstructed or impracticable
in part, is held to be impracticable in the
whole.
Case of a dispute concerning ransom. — IF
a master and his Mokatib disagree concern-
ing the amount of the ransom, according to
Haneefa they must not be sworn. — The two
disciples are of opinion that they must be
sworn, and that the contract of Kitabat
must be afterwards dissolved (and such also
is the opinion of Shafei) ; because the con-
tract of Kitabat is a contract of mutual
exchange, and is capable of dissolution, —
the case in question, therefore, resembles as
case of sale, since the master claims an
excess of ransom, which the Mokatib de-
nies : whilst, on the other hand, the Mokatib
claims his title to freedom, on his payment
of the ransom agreeable to his settlement of
it ; and this the master denies : — they are
both therefore, in some measure plaintiffs,
and also both defendants, as in a case of
sale ; and hence they must both be sworn,
in the same manner as a purchaser an<4 seller
are both sworn when they differ concerning
BOOK
.-CHAP. III.]
CLAIMS
413
the price. — The argument of Haneefa is that
the ransom is opposed to the removal of a
restriction, which operates instantaneously
with respect to the slave ; but that it is not
considered as opposed to the freedom until
the Mokatib actually pay it.— Noth ng re-
mains, therefore, but a disagreement with
respect to the amount of the ran so n ; and
with respect to that the mast r is a plaintiff
only, and the Mokatib only a defendant (the
plea and the defence not exist 'ng alike in
both parties, as in some of the cases before
recited) :— the p rties, therefore, are not
sworn ; but the assertion of the Mokatib,
upon oath, mu*t be credited.
In a depute between a husband and wife
concerning furniture, the article in dispute
is adjudged to the party to whose u^e it is
adapted — IF a h^band and w fe disagree
concerning any article of furniture, each
claiming a right in it in that ca»e, if the
furniture in question be particularly adapted
to the use of men. it is adjudged to the hus-
band : ai<d if particularly adapted for the
use of women, is ac'judged to the wife ; be-
cause, in the former inbtance, probability is
an argument in favxir of the hus >and ; and
in the latter, in favour of the wife. It,
however, the article be of such a nature as
is common to the service of both (such as a
pot, or other vessel), it is in that case ad-
judged to the husband ; because the wife
herself, and everything belonging to her, is
in the possess 01 cf the husband ; and, in
claims, the assertion of t le possessor is pre-
ferred : This rule, indeed, does not hold
good where the article in dispute is peculi-
arly adapted to the service of wcmen, for,
although such articles also are in the posses-
sion of the husband, yet the probability of
their being the property of the wife, from
the particu'ar nature of them, is stronger
than the argument derived from possession ;
and therefore supersedes it.— What is here
advanced proceeds upon a supposition of the
actual existence of the marriage ; or of a
separation between the parties, in which
case the law is exactly the same.
// the dispute be between the survivor and
the heirs of the deceased, the article must be
adjudged to the survivor — IF, on the other
hand, one of the parties should die, and the
heirs of the deceased enter into a contention
with the survivor concerning the family
goods, in that case the goods in question are
adjudged to the survivor, whether they be
of a nature adapted to the service of a man
or woman ; since possession is clearly estab-
lished in favour of the living party. — This is
according to Haneefa — Abop Yoosaf main-
tains that every thing which partakes of
the nature of paraphernalia.41 whether it be
restricted to the use of a man or woman,
must be adjudged to the wife ; and that all
•Arab. Jaheez. — Meaning vestments or
furniture of any kind which a bride brings
to her husband's house,
the rest must be adjudged to the husband
upon h»s swearing to the property ;— because,
as every woman is supposed to have brought
a paraphernalia along with her, there is a
probability that the specified articles may
have been included in it ; and this proba-
bility destroys th2 argument in favour of
the husband from possession ; but with
respect to the rest of the family goods, the
husband's claim, from possession, holds good
as there is nothing preventive or destructive
of it.— Mohammed alleges that whatever is
only fit for the use of a man ought to be
adjudged to the husband ; that whatever it
only fit for women ought to be adjudged to
the wife ; and, that whatever is, in point of
use, common to both, ought to be adjudged
to the husband or his heirs, for the reason
alleged by haneefa.
// one of the parlies be a slave, it must hi
adjudged to the party who is free.—lv, in
the case in question, one of the parties be a
si ive, and the contention concerning the
property happen during the life of both, it
must be adjudged in favour of the party
who is free ; because the seisin of a free
person is in a superior degree valid ;— but in
case of the death of either, it m ist be ad-
judged to the living party, as the possession
of the deceased exists no longer, and the
possession of the living then remains unop-
posed,— This is according to Haneefa,— The
two disciples maintain that a privileged
slave and a Mokatib are equivalent to free-
men in this point, as their possession is valid
in conUsted caset;.
Section.
Of Persons who are not liable to Claims.
A person is not liable to a claim, who sets
up a plea of deposit, pledge, or usurpation
(in the article claimed), supported by the
testimony of witnesses, unless he be a person
of notoriously bad character.— If a defendant
plead that "a certain absent person had^ de-
posited with him the article in dispute, or
•'had pledge i it to him," or that "he himself
had usurped it from a particu'ar absent
person," and bring witnesses to prove his
allegation, in that case no room for suit or
contention exists between him and the
VAJUtdiviwi* *.«.»»» „„-,, i. . i i i >. It
plaintiff; and so also, if he plead that a
certein absent person had let the said thing
to hi in lease," and produce evidence in
proof of it ;— because in all these cases it is
clearly established by the euJence of the
witnesses of the defendant that his tenure
is not the subject of contention, since he is
seised of the thing in the manner of a trust,
— Ibn Shabirma maintains that the defendant
is not exonerated from the suit in conse-
quence of proving, by witnesses, the deposit
the pUd^e, the usurpation, or the lease;
because the proof of the absentee s right of
property is impracticable, since there is no
person in his behalf to appear as a party
in the suit ; and the exenrration of the
defendant from the suit of the plaintiff
depends on the proof of the absentee s right
414
CLAIMS
[VOL. HI.
of property. Our doctors, on the other hand,
argue that the evidence here adduced has
two objects in view :— FIRST, the establish-
ment of the absentee's right of property,
concerning which there is no suitor on his
behalf; and which consequently cannot be
proved I—SECONDLY, a repulsion oi the
claim of the plaintiff ; a. d as he is the
immediate adversary in this concern, the
repulsion is consequently established. 1 he
plaintiff in this instance, therefore, resembles
a person commissioned by a husband to remove
his wife :— that is to say, if a person appoint
another his agent for the removing and con-
ducting of his wife to him, and the wife
prove, by witnesses, that her husband had
divorced her, in this case the testimony ot
these witnesses must be admitted : merely
so far, however, as to restrain the removal
of her by the agent ; but not with respect to
the establi hmentofthe proof of the divorce
[as was formerely mentioned) ;• and so also
in the case in question. —It is to be observed
that the defendant, in this case, is not exone-
rated from the claim of the plaintiff upon
his bare allegation of the deposit of the
absentee, or of hip pawn. &c.. nor until he
produce evidence in support of his assertion ;
because the defendant is himself apparently
an adversary f in contemplation of his being
possessed of the subject of the claim ; and is
opposed by the suit of the plaintiff, which he
means to repel by the declaration above
mentioned ;— his declaration, therefore, can-
not be admitted, unless he adduce evidence
in iupport of it; in the same manner as
where a person says to his creditor, *'I have
transferred the debt I owe you upon another
person," in which case his assertion is not
believed unless supported by evidence. — Ibn
Abee Leilee is of opinion that the defendant
is exempted from the plea immediately upon
his assertion The last recorded opinion of
Aboo Yoosaf is that if the defendant be
virtuous and not noted for fraud, the rule
obtains as above laid down. If, however, he
be noted for fraud, he in that case is not
exonerated from the claim, even on pro-
ducing evidence in support of his allegation ;
for a fraudulent person sometimes gives
property that he has usurped to a traveller
(for instance) in order that the traveller may
afterwards, in the presence of witnesses,
resign it to him in trust ; and this he does
with a view of defrauding the original
proprietor of his right. — Where the defen-
dant, therefore, is open to a suspicion of
such frauds as these, the Kazee must not
accept of his evidence.
Or, that his witnesses bear defective testi-
mony.— IP the defendant's witness should
say, ''a person whom we do not know did
resign this article to him in trust ;" in that
case the defendant is not released from the
•Under the head of Divorce.
fThat is, he may himself be regarded (in
one view in the light of a plaintiff.
suit, for two reasons — FIRST, there is a
possibility that that person may be the
plaintiff himself —SECONDLY, if they had
specific the person, the plaintiff would then
have had it in his power to have traced him,
and to have entered a suit against him ; but
as they have not specified him, he is deprived
of the power of tracing him ; and if, under
such circumstances, the defendant were re-
leased from the claim, an injury is thereby
occasioned to the plaintiff.— IF, again, the
witnesses should say, ''we know the face of
the man in question, but we are ignorant of
his name and family," in that case the same
rule obtains (according to Mjhamm>d), be-
cause of the second reason. — According to
Haneefa, on the contrary the defendant in
this case is released from the claim, as
having proved that the thing in question
came to him from another in trust ; since, as
the witnesses know the countenance of the
man (contrary to the preceding cas**), the
defendant's possession is consequently no
longer a subject of litigation.— In reply,
also, to what is urged by Mohammed, it may
be observed t »at either the plaintiff has b.en
himself the occasion of the injury he sus-
tains, in forgetting the defendant ; or, the
injury has been occasioned by the witnesses
of the defendant ; but not by th~* defendant
himself. — ( This case is termed the Makhmsa,
of quinqual, of the book of plea e ; because it
has given rise to five different opinions, as
here stated )
He is liable, if he set up a plea of right of
property. — IF a defendant plead that he had
purchased the article in dispute from a
certain absentee, he is in that case a party,
and liable to answer to the claim of the
phintiff ; for in declaring that he was seised
of the thing in virtue of a right of property,
he acknowledged himself to be subject to the
suit of the plaintiff
Or, if the plaintiff sue him on a plea of
theft, or usurpation, although he produce
evidence to prove a trust — IF, in a suit, the
plaintiff should say to the defendant "you
have usurped this thing from me," or "you
have stolen thing from me," in this case
the defendant is not released from the claim,
although he produce witnesses in proof of
the article in question having been committed
to him by an absentee in trust ; because here
the plaintiff asserts the action of usurpation
or of the theft against him, and in this respect
(and not because he is seised of the property)
he is subject to the plea. — It is different
where the plaintiff asserts absolutely his
right of property ; because in that case the
defendant cannot be subjected to the claim
otherwise than from his possession of the
thing ; whence it is that an absolute claim of
property in an article is not admitted against
any except the actual possessor of the article ;
whereas a plea for the act [of acquisition,
such as usurpation, and so forth] lies against
any other person
And so also, if the plaintiff sue upon a
plea of theft, without specifying the t hie/. — IF
BOOK XXIV.-CHAP. IV.]
CLAIMS
415
in a suit, the plaintiff should say to the
defendant, who is seised of the thing in
dispute, "this thing which is in your posses-
sion is my property, and has been taken from
me by theft;" and the defendant say
certain absentee deposited this thing with
me ;*' and bring evidence to prove his asser-
tion, still he is not released from the claim. —
This is the opinion of Haneefa and Aboo
Yoosaf ; and proceeds upon a favourable con-
struction of the law. Mohammed holds the
defendant, in this case, to be exempted from
the claim, as the plaintiff has not exhibited
the claim of thqft against him, but against
an unkno <vn person ; and as a claim of this
nature against an unknown per.ton is nugatory,
it follows that the claim, with respect to the
act, cannot stand : — nothing, thertf >re, re-
mains except a claim with re&pect to the right
of property ; and a?, in a claim concerning
a right of property, the suit is ^et aside, by
the defendant proving the article in dispute
to have Leen committed to him in trust, the
case is therefore the same as if the plaintiff
had declared the thing to have been taken
from him by usurpation, without naming
the usurper. — The reasoning of Haneefa and
Aboo Yoosaf is that the mention of the act
involves a plea against the agent ; and the
presumption is that the possess r is the agent,
but that the plaintiff, from motives of tender-
ness, may not have specified him. in order
to screen him from punishment. The case is,
therefore, the same as if the plaintiff had said
"you have stolen this thing." — it is otherwise
where the plaintiff charges the defendant with
usurpation, for in this c*>se, although he make
the charge in Direct terms, still punishment
is not incurred, notwithstanding it be evident
that his design is to prove the usurpation.
But not if the plaintiff sue him on a plea
of purchase. — (F the plaintiff should say to
the defendant "I have bought this thing
from a certain person," and the defendant
reply "that person consigned the thing to
me in trust/1 In this case the defendant is
exempted from the claim without the neces-
sity of producing evidence ; because both
the plaintiff and the defendant are agreed
that the thing is, originally, the property of
another man ; and consequently the tenure
of the person seised of it is not a matter
of dispute between them. — If, however, the
plaintiff say that "a cer ain person had
appointed him an agent for seisin of the said
thing," and produce evidence in proof of
this, he is entitled to prosecute his suit
against the possessor, as having established,
by witnesses, a superior right to the posses-
sion of the article in question.
CHAPTER IV
OF THINGS CLAIMED BY TWO PLAINTIFFS,
If the claim be laid to a thing of a divisible
nature, and the proofs on each part be equal,
the thing must be adjudged equally between
both claimants.— Ir two men separately
claim the property of an article in the pos-
session of an ther, and each bring evidence
in support of his claim, the Kazee must, in
that case, adjudge the aiticle to be the joint
property of both in an equal degree, — One
opinion of Shafei, in this case, if that, as the
evidence respectively adduced by the parties
is contradictory of each other, they must
both be rejected -Another opinion of his
is that the Kazee ought to throw the die to
determine to wh«m the property belongs.—
His reasoning in support pi these opinions
is that as it is an impossibility that two men
can each have separately a complete right of
property to one and the same thing, it follows
that the evidence of one of the parties must
be false ; but as there is no criterion by
which the truth can be determined, it is
therefore proper eitner to reject both, or to
have recourse to the die ; more especially as
the Prophet in a similar case caused the d;e
to be thrown, and gave judgment accord-
ingly. The arguments of our doctors on
this joint are twofold. FIKST, a tradition
reported by Tameem Bin Tirfa, that the
Prophet, in a cause which was brought be-
fore him regard ji-ig a camel, in which both
parties brought evidence in support of their
claim, adjudged it to be the joint property
of both (for, with respect to the tradition
quoted by Shafei. it alludes to a decision of
the Prophet in the infancy of the Mussulman
religion which was afterwards disapproved
Of) —SECONDLY, it is po&sible to reconcile
the evidence of both the parties, by sup-
posing the evidence of the one party to
allude to the cause of riizht of property in
the pos*essor, and that of the other to the
right of possession : and as, by thii hypo-
thesis, the tvidence of each of the parties is
reconcileable to truth, it is therefore incum-
bent to act according to it in the greatest
possible degree, —namely, by adjudging each
of them to have a right to the half of the
property. •
// it be to a wife the right must be adjudged
according to her declaration. — If two men,
severally, claim marriage with one woman,
and each adduce evidence 'n support of his
claim. Kazee must not, in that case, pass
a decree upon these evidences; because, as
the subject of dispute does not admit of di-
vided property, it is consequently imprac-
ticable to adjudge the half to each.— He
must therefore have recourse to the decla-
ration of the wife, and adjudge her in mar-
riage to that party whose claim she verifies.
Or (if the witnesses specify dates) accord-
ing to the prior date— THIS, however, pro-
ceeds upon a supposition of the witnesses
not having mentioned any date ; for if they
should specify dates to the marriage, the
evidence of that party which specifies the
most ancient date must be preferred.— If, on
the other hand, previous to the adduction of
evidence by either party, the woman should
make an acknowledgment in favour of one
416
CLAIMS
[VoL. III.
of the plaintiffs, she is judaed to be the wife
of the acknowledged :— but if the other
party should afterwards produce evidence
in support of his claim, the Kazee must
adjudge her to be his wife, as evidence is
stronger than acknowledgment.
A decree adjudging a wife to a single
claimant cannot be reversed in favour of a
subsequent claimant, unfess his witnesses
prove a priority of dale. — IF only o..e man
claim marriage with a woman, and she deny
it, and he produce evidence in support of
his claim, and the Kaz:e having in con-
sequence passed a decree in his favour,
another person then appear and claim his
marriage with the same woman, in this case
the Kazee mu&t not reverse his decree : be-
cause, having been passed on good grounds,
it cannot afterwasds be affected by a cir
cumsta nee of equal, and far less by one of
inferior force.— If, however, the witnesses
of the second plaintiff should attest the date
of the marriage to have been prior to that
mentioned by the witnesses of the first plain-
tiff, the evidence brought by the second
plaintiff must in that case be preferred, as
the error of the first witnesses has thereby
been made apparent. — The law is the same
in a case where a husband and wife living
together, and their marriage being notorious,
another person claims marriage with the
woman, and brings evidence in support of
his plea ; for in this case his evidence is not
admitted unless it prove a marriage prior to
that of the husband with whom the wife
then lives.
Two claimants to a slave, on a plea <*f
purchase, upon his being adjudged between
them, ore severally at liberty to pay half the
pr*ce, or to relinquish the bargain. -!F two
men severally claim a right of property in a
slave in the possession of another (as if tach
were to assert that he had purchased him
from that other), and each bring evidence in
support of his claim, in that case (as the
Kazee must adjudge him to be the joint pro-
perty of both), they are severally at liberty
either to take the half of the slave at the
half of the price or relinquish the bargain.—
The case is therefore the same as where two
unauthorized persons sell the same article
belonging to a third person to two different
men, and the proprietor confirms both sales,
in which case each purchaser is at liberty
either to take the half of the article for half
the stipulated p ice, or to reject the sale
entirely and receive back his money; be-
cause, as he had before assented to the
bargain, on the supposition of its extending
to the whole of the article, it cannot ^be
inferred that he assented to the partial
bargain ; he is therefore at liberty either to
accept or reject it as he pleaies If, how-
ever, in the case in question, after the Kazee
adjudging the half to each, one of the par-
ties should reject it, the other cannot take
the whole, because that half was adjudged
to the other in consequence of evidence he
produced, and on his rejecting it the sale
becomes, in that 'half, null and void.— It
were otherwise, however, if one of the par-
ties should intimate his rejection of the half
prior to the adjudication of the Kazee, for in
that case he would be entitled to take the
whole, because his claim went to a right to
the whole from purchase, and as the bar to
his obtainrnent of the whole (namely, the
plea of the other) is removed by the relin-
quishment of the co-plaintiff, prior to the
virtual annulment of any part of the sale
by the decree of the Kaz^e; he is conse-
quently entitled to the whole of his claim.
(Analogous to this is the resignation made,
by ons of two Shafees, of his right of pre-
emption, prior to the determination of the
Kazee in favour of both. — Analogous also,
to the first state nent is that of the resigna-
tion made by one of two Shifees of his right
of pre-emption subsequent to th* decree of
the Kazee in favour of both )*
But if they specify and prove dates, the
slave must be adjudged to the prior pur-
chaser,— Iris to be observed that if, in the
case in question, the two plaintiffs should
specify the dates of their purchase, the sale
must be adjudged in favour of the prior
purchaser : because it appears that he had
established his right at a time when he had
no opponent ; and on this account the subse-
quent claim of the other is invalid. — If one
of the parties should mention a date, and
not the other, the sale must in that case be
adjudged in favour of the one who specifies
the date ; because he clearly establishes his
claim at a particular time; and as the other
does not specify any period, it becomes, of
consequence, doubtful whether he purchased
it prior or posterior to the particular time
mentioned by the other: and the Kazee
(b^caiis? rf this doubt) cannot pass a decree
in his favour — If neither of the parties
specify a date, and one of them be in posses-
sion of the thing, the claim of the possessor
is preferable ; because it is probable that his
right of possession was derived from prior
purchase ; and also, because b )th of their
claims being established in an equal degree
the. possession, which is undisputed, cannot
be affected by a matter of doubt. The same
rule obtains when one of the plaintiffs is
seised of the thing and the witnesses of
the other specify the date of his purchase. —
But it is to be observed that if the witnesses
should expressly attest his purchase to have
been prior to that of the purchase of the
possessor, the sale must in this case be ad-
judged in his favour ; as a certain knowledge
of prior purchase establishes a positive right,
whereas possession establishes only an im-
plied right.
Where one party pleads purchase, and the
other gift and seisin (without sepecifying
dates), the article must be adjudged to the
purchaser — IP two men claim a particular
article, one in virtue of purchase, and the
* This is fully explained under the article
Shaffa.
B90K XXIV.— CHAP. IV ]
CLAIMS
417
other in virtue of gift and seisin, and each
produce evidence in support of his claim,
without, however, mentioning dates, in this
case the evidence to the purchase must be
admitted in presence ; because purchase is
stronger in its nature than gift, as it involves
a ( mutual exchange ; an 4 al*). because pur-
chase is in itself a cause of a right of pro-
pert ; whereas ^he right of property in a
gif. rests upon the acceptance —If the claim
of the one be founded up^n purchase, and
that of the other uooncharty and seisin,
c-nd all the other cii uma.ances be the sams
as above stated, tie same rule holds, be-
cause of the reasons, aforesaid, if, however,
the claim of one be founded upon gift and
Seisin, and that of the other upon charity
and seisin, the Kizee must in this case
decree the thing jto be in an equal degree
the joint property of both ; seeing that fheir
claims are equal, and that neither has §
preference over the other
OBJECTION. — \ preference ought to be
given to the claim of charity ov^r that of
gift ; because a gfft is not binding, since the
giver may retract the gift : whereaf charity
is binding* and cannot be retracted
REPLY.— No preference if given excep:ing
for some effect * immediately operating ; and
the legality of retracting a gift, and the
illegality of retracting charity, relate 'to the
future : but it the moment they are .on a
foot of equality. - It is to be observed that
this doctrine of the equality of claims of gift
and of charity, and of the necessity for
decreeing jointly to both, is when the thing
in question is capable of division But if
the thing be inc; pable of division, there is
a difference of opinion ; some maintaining
that the law in this case is the same ; and
others maintaining that the law in this case
is different, as it induces a gift with respect
to indefinite property, which is unlawful.
A claimant on a plea of purt/ms*, and a
claimant on a plea of mat r. age are up m an
equal footing t — IF two persons lay claim to
the same thing, one of them in virtue of
purchase, and the other (being a woman) in
virtue of the possessor's having married
her, and having settled that article as her
dower,— -in this case both plaintiffs are upon
an tqual footing ; because the claim of each
in point ot strength is equal, kirice a con-
tract of purchase; and of marriage, are both
contracts of exchange, and both equally
occasion a right of property. ^-This is actord-
ing to Ha nee fa and Aboo Yoosaf, Moham
med raiintairis that the" plea of purchase I
to be preferred, and that the husband mus
be made responsible to the woman for the
value of the article in dispute ; as by thi
means a preference is given to the plea o
purchase, whilst at the same time the claim
of both are attended to.
A p(ea of pawnage and seisin is pref trail
to a plea of gift and seisin*— IF one of two
plaintiffs plead pawnage and seisin : and th<
other plead gift and seisin, and each . pjco
ase the plea of pawnage must be preferred,
— This proceeds upon a favourable construe-
i on t— Analogy would suggest that the plea
f gift ought to be preferred, because gifts
occasion a right of prpperty, whereas pawn*
e does 'not. —The reason for a more favour*
ile construction in this instance is that
eisin in virtue of pawnage occasions rcspon*
ihility, which is not the case with respect
o seisin in consequence of gift ; and a
contract which occasions responsibility U
trong than one which does not occasion
t,— It is different whence, the gift is made in:
xchange for some other thing ; because
uch a gift is ultimately a, sale ; and sale is
tronger than pawnage. ;
Two claims, equally supported,, trust , be
Ictermined by t'.« priority of dat*.—lv two
men claim an absolute right of property it
the same article, whi^h is tn the possession
of a third person, and each mention the date
of commencement of h-s right, it must in
that cas>: be adjudged ir* favour of him who
pleads the oldest date ;— because having
established his pr<or right of property, it
follows that no other can afterwards obtain
hat but from him ; and the othere plaintiff
in this instance, has not obtained the right
of property from him.
Two pleas of purchase, preferred against
one person, must also be determined by his
oldest date —It two men prefer a claim of
purchase against another., who, is not the
possessor of the article in dispute, and each
bring evidence of his purchase, specifying
different dates, the person who proves the
prior date must be preferred, ai he prove his
right at a period when he had no opponent.
//, against two different persons, the
article is adjudged equally between both
claimants — -!F two c a:mant$ prefer an
allegation of- purchase, the one bringing
evidence in p. oof of his having bought the
article in dispute fro n Zt-yd, and the other
bringing evidence in , proof of his having
bought it from Omar, and the witnesses of
each specify the dates, of these 'purchases, in
this case both plaintiffs are on a, footing of
eq^rlity, as each of them has established the
right of property ofy his .respective seller,
and hence the case is the san^ 39 if the two
sellers were themselves present and claimed
their respective .rights.— Eachu plaintiff,
therefore, is at liberty tQ take tUe half of
the thing at half of the price, or the relinquish
his ourchase entirely, for the, reason . before
explained. It the witnesses of one -of the
parties specify a determinate: t«ne of pay-
ment, and not the witnesses of the other,
stjll the Kazee must a4iv»dge one, half to
each ; because a knowledge of the . length of
credit does not imply priority in point of
purchase ; — may, .it \s even .probable .that the
other's right of property may have been of
prior date, as the case supposes two , different
sellers.— (It is otherwise where there is only
one seller, as in that case both parties ajre
agreed in the derivation of their riffht ol
CLAIMS.
{Vet. Ill-
Untess one orily adduce evidence to a date,
when- tt must be adjjtd^ed to kin: — 'If, on the
othfcr hand, ortc of the plaintiffs prove a date
of ' Rurcba^e, and not the other, a decree
must be passed in favour of the claimant
whose dite of purchase is ascertained; tmless
the purchase of the other can be proved to
have preceded his. " '
Where four claimants plead a right in a
thing, as derived fro'n four different person*'.*
the article is adjudged among them in equall lots:
— IF one plaintiff claim a right to an article
from his hav.ng purchased it from Zeyd;— a
second, from a gift of it to him by Omar, — a
third, from1 inheritance from his father, —and
a fourth, from its having been bestowed
upon him in charity by a particular person
—and each '•> of the four claimants add'ice
evidence in support of his cla*m in this case
the Kazee must adjudge/ the article among
them, in four equal lots : because each of
them pleads . his right, as derived from a
different person, and the case is therefore
the same as if these f jur different persons
had themselves appeared in court, and each
proved his absolute right of property.
The evidence of the possessor must be pre-
/*rred to that of the plaintiff, where it proves
a prior date of right — IF a plaintiff adduce
evidence to prove his right of property in a
thing from a particular period, and the
possessor of the thing adduce evidence to
prove his right from a prior period, the
evidence of the possessor must be preferred.
— This is according to Haneefa and Aboo
Yoosaf. — It appears also (from one tradition)
to be the opinion of Mohammed.— -According
howevers, to another tradition, Mohammed
is of opinion that the evidence of the pos-
sessor ought not to be preferred (and this is
the sentiment he adopted and acted 'ux>n) ;
because, as each party produced evidence in
support of his absolute right of property,
without explaining the cause of that right,
it follows that priority or posteriority of
date is in this instance immaterial. — The
reasoning of Haneefa and A boo Vopsaf is
that wherever a person proves his right of
property in a thing at a particular period
the right ©f property of another in that
thing a't a subsequent petiod cannot other*
wise be established than by its being derived
from the former' ; but in the case in ques-
tion, the plaintiff has not pleaded the deriva-
tion of hii right of property from the pos-
•essor :< and therefore the evidence of the
possessor is preferred. '
Ttic evidence on the part of the plaintiff is
pt*f*rredi>where the claim is laid absolutely.
-4.fr*> plaintiff and' possessor, respectively,
bring ^evidence to prove each his right of
property, m an absolute manner (that is,
without explaining the instrument or cause
of U)i arid the witnesses of one the parties
declare the date of his right, and hot those
of the othtiv, in this case (according to Haheefe
a-ftd Mohammed) the evidence of tfie plaintiff
must be preferred,— 'Aboo Yoosaf alleges that
of the claimant of known
mttst'bs preferred {and this, according: to
one tradition, is also the dpmiori of Harieefa);
because the right of property of the claimant
Of known date is established hi "the past,
-whereas that of the other, in consequence ^
his evidence" not rnentronirrg any: date,'" is
only estabHihed in the present ; Jand thfe
past has precedence of the presents—in the
same manner as where41 one of two claimants
from purchase proves th6 date of his .pur-
chase, and the other doas not ; in which case
the evidence of the former is prcf jrrcwl —
Tfye reasoning of Haneefa and Nfoha mined
is that the evidence addu.ed by the possessor
of an article in dispute is admitted only as
it tends to repulsion ; — but.( in the case in
question, no property of repulsion exists, rv-
cause it is this instance doubtful whether
the plaintiff may have derived his right
in the article from the possessor or not,
since it is possible thdt if tne plaintiff's
witnesses were to mention a date. . ,tha*t
date might prove to be prior : — the evidence
addtfced by the plaintiff .ja therefore pre-
ferred
And the same, where the subject ,in di<s,
pute is immoveable properly.^- A SIMILAR
disagreement subsists with respect to a
Contested house in the possession of two
plaintiffs : for, according to ,. Haneefa and
Mohammed, the houss must be left in their
possession., as before, and no regard whatever
paid to the evidence on either part : whereas*
according to Aboo Yoosaf, a decree must be
passed in favour of him who proves a date.
—Supposing, however, the house to be ia the
possession of a third person; and ali the other
circumstances to be the same, in that rase
according to Haneefa, both the, claimants! are
upon an .equal footing ; whereas, according
to Abpo Yoosaf the evidence on the part of
him who proves the date must r#j preferred*
— Mohajnmed. on the other hand, alleges
that the evidence , on the part of him who
does not show any date must be. preferred
because he claims a prior right of property,
on the ground that when a person claims
property in an absolute manner, without
specifying any date; and establishes, his
claim, he is entitled tp more than one who
specifies a date ; as holds in a case, of claim
of acquisition by, labour. — The argument of
Aboo Yoosafjs that the mention of a 'date
is a certain corroboration of the claimant's
right of property^ that time.; whereas.jthe
omission of a date admits of two .construc-
tions; as it leaves it doubtful whether: the
right of the other had. existed piftpr or posJ-
terior to that period ; and as certainty . is
always a cause of .preference, he 'whose evt-
cjence goes to establish a date is therefore
preferred ;—in the same majrmer as. where
two persons claim the purchase,, of the)- same
thing, and one of them specifies the, date/ and
not the other.— The argument of Hanee.fa
& that the date mentioned b*y the dating
claimant bears thfe construe ion either of
prior hy or posteribrity, In the sarae Banner
as the claim of the other, whicK is absolute.
BOOK XXJV.-CHAP IV.]
CLAIMS
419
also bears two constructions : the claims of
both are, therefore, on a footing of equality
It is otherwise in the case of two purchasers,
where one specifies the date, and not the
other : because purchase being a supervenient
circumstance, is therefore, when doubtful,
referred to the nearest period ; and hence,
in that case, the reason for prefer ting the
knovn date.
Case of claims to amm i/s. founded upon
generation — IF a plaintiff and possessor
should both bring evidence to prove a gene-
ration, as if each should bring evidence to
prove that "such a camel (for instance) is
the offspring of a particular camel, which
had brought it forth whilst in his poshes-
sion," — in this case the claim of the posses-
sor must be preferred ; because, as the evi-
dence is adduced upon a point which derives
no additional proof from actual possession,
it follows that the plaintiff and the posses-
sor are both upon a perfect equality with
respect to plea and evidence ; and the evi-
dence on the part of the possessor afterwards
acquires a superiority from the circumstance
of his possession : the Kazee must therefore
adjudge the camel to him — This is approved.
— Yetsa Ibn Ayam, however, has averted
the contrary : for he maintains that as both
evidences are in opposition to each other,
they must both be rejected, and the camel
left, as it was, in the hands of the possessor ;
but that it ought not to be decreed to him
by the Kazee.
IF, in a suit respecting a horse, the plain-
tiff assert that he had purchased it from
Zeyd, and that it was the offspring of a
horse of Zeyd, and the possessor assert that
he had bought it from Omar, and that it was
the offspring of a horse of Omar's, and each
bring evidence in proof of the horse having
been produced from a cla m in the possession
of the seller, it is the same as if each had
adduced evidence in proof of the horse
having been produced in his own possession.
If, on the other hand, one of the parties
bring evidence in proof of his right of pro
perty, and the other in proof of the contrary,
in this case the claim of the party proving
the generation of the horse is preferred,
whether he be the possessor or not ; because,
as the evidence adduced by him goes to
prove his right of property abinitio, it
follows that the right cannot afterwards
exist in another, unless by a derivation of it
from him.— In the same manner also, if,
where neither of the parties is possessed of
the horse, one prove that it was produced in
his possession, and the other prove his right
of property, a decree must pass in favour of
him who proves the generation of the horse.
—It is to be observed that if the Kazee pass
a decree in favour of the person who proves
the production of the horse from one in his
possession, and another person then prove,
by evidence, the generation of it to have
been from his property, the Kazee must, m
that case, pass a decree in favour of that
third person, unless the possessor again pro-
duce evidence in proof of the generation, in
opposition to that person.
Or to any other property founded upon a
cause of right equivalent to generation. — THR
same rule holds with respect to materials for
making cloth, where they have undergone
only one opearation (such as spinning, for
instance) —Thus, if a plaintiff and a pos-
sessor, rescectively, assert that "the yarn
in dispute is h;s property, and he hag spun
it himself," and each bring evidence in
support of his claim, in that case the Kazee
must pass a decree in favour of the poeses-
sor, in the same manner as in a case of
claim founded upon generation : and the
sime of every cause relating to property
which is simple and not complicated, such,
for instance, as the extracting of milk from
an animal the maki g of cheese, or of felts,
the sheering of wool, and the like. — If, on
the other hand, the cause of right of pro-
perty be of a complicated nature, such as
thi wearing of cloth, the planting of trees,
or the sowing of wheat, and a dispute arise
between a plaintiff and pa sessor of any of
these articles, the Kazee must pass a decree
in favour of the plaintiff, and not of the
possessor,— and so also, if a piaintiff and
possessor, respectively, adduce evidence in
proof of his absolute r ght of property,
without explaining the cause.— If the cause
b> djubtful (that is, if it be unknown
whether complicated or simple), recourse
must be had to skilful persons ; and if it
appear doubtful to them also, the Kazee
mus in that case decree in favour of that
plaintiff who is not the posse isor ; because
the original principle is to pass the decree in
conformity with the evidence adduced by
the plaintiff ; and although an exception be
established in cases of claim founded upon
generation (because of a tradition of the
Prophet, who, upon a certain occasion, de-
cided, in such a cise, in favour of the poi*<-
sor) siill ; in a case where the cause is doubt-
ful/and where of course it cannot be ascer-
tained whether the article is comprehended
within the exception, recourse must be had
to the original principle of the law.
The possessor of an article, proving his
having purchased it from the claimant, sets
aside his pUa.-Ii- * plaintiff produce evi-
dence in support of his absolute right of
property in an article, and the possessor
bring evidence to prove h.s haying pur-
chased the article from the plaintiff, the
evidence of the possessor must te Preferred ;
because, althougn the plamtiff plead that
his right of property was of prior date, yet
the possessor appears to have afterwards
purchased the article from him (which is m
no respect repugnant thereto), and hence the
case is the same as if the possessor were first
toaeknovledae that the article had formerly
b°elotedt tL plaintiff and then to assert
that he had purchased it from him.
// each party prove a purchase from the
other (without specifying a date) no decree
can tahe place. -!P a plaintiff bring evi-
420
CLAIMS
[VOL. III.
dence to prove his purchase of the article in
dispute from the possessor, and the possessor,
on the other hand, bring evidence in proof
of his having purchased it from the plaintiff,
and neither party specify the date of his
purchase, in this case the evidence of both
falls to the ground, and the thing in dispute
is left in the hands of the possessor. — The
compiler of the Hedaya observes that this is
according to Haneefa and A boo Yoosaf : but
that Mohammed has said that the Kazee
must admit the evidence of both, and that
then the thing goes to the plaintiff ; because
a conformity to the evidence of both is prac-
ticable, since it is possible that the posses-
sor may have purchased the thing from the
plaintiff, and having then received posses
sionofit may have afterwards sold it to
him again. — This construction ought there-
fore to be adopted ; more especially as seisin
implies that the possessor must have made
the first purchase ; nor can the contrary,
indeed, be supposed, because (according to
Mohammed) a thing cannot be sold previous
to the seller's possession of if. although it
be land. — The reasoning of Haneefa and
Aboo Yoosaf is that each of the parties in
pleading a purchase from the other, virtually
makes an acknowledgment of the right of
property in the other ; and as, where each
party makes an acknowledgment in favour
of the other, the evidence of both must be
set aside, according to all our doctors, so also
in the case in question. — In reply to the
assertion of Mohammed, it is to be observed
that a conformity to the evidence of both is
impracticable, in as much as the cause,
namely, the purchase, is an object only as
far as it is necessary to prove the existence
of the effect, namely, right of property. —
Now in the case in question, it is imprac-
ticable to pass a decree in favour of the
possessor's right of property, but by pre-
viously admitting the plaintiff's right ; and
hence if the Kazee were to pass a decree in
favour of the possessor, it is a decree upon
the cause, namely, the purchase, which
would be vain and useless.
And so also, if each prove payment of the
price. — IF, in the case now under considera-
tion, the witnesses of each party should
give evidence of the payment of the price
(one thousand dirms, for instance), »n that
case (according to Haneefa and Aboo Yoosaf)
a Mokasa, or mutual liquidation, takes place
with respect to both prices, provided the
prices be on an equality either with regard
to prompt payment, or to a payment at a
limited period, because in this case the seisin
of each party induces responsibility.— If no
evidence be given of the payment of the
price, in this case also, according to Moham-
med, a mutual liquidation takes place,
because the price is due from each party to
the other respectively, provided the wit-
nessess of each separately testify to the sale,
and also to the seisin of the article sold. —
And here, in tht opinion of all our doctors,
the evidence of both parties falls to the
ground ; since, even according to Mohammed,
a conformity to the evidence of both is im-
practicable in this instance ; because both
the sales are valid, as being both made after
seisin : moreover, no date is specified, nor
does any argument of a date exist by which
a preference might be given to the one claim
rather than to the other ; they are therefore
of equal force, and no superiority is assigned
to the one over the other : and the evidence
of both parties consequently is accounted of
no force. — It is otherwise in the preceding
case, because, as no mention is there made
oftheseision of either party, a conformity
of the evidence of both is practicable, as has
been already explained.
In disputes concerning land, a decree must
be passed in favour of the last purchaser —
IF the thing in dispute be land, and the
witnesses of both parties specify the dates of
purchase, without making any mention of
the seisin of either party, in that case, where
the date of the plaintiff's purchase precedes
that of the possessor, the Kazee (according
to Haneefa and Aboo Yoosaf) must pass a
decree in favour of the possessor ; and the
dispute is settled as if the plaintiff had first
purchased the land, and then sold it to the
possessor previous to his own seisin of it,
which in their opinion is lawful. Moham-
med, on the other band, contends that the
Kazee ought to pass a decree in favour of
the plaintiff ; because, as (according to him)
the sale of land previous to the seisin of it
is not lawful ; the land ought necessarily to
remain with the plaintiff,— If, on the other
hand, the witnesses of both parties give
evidence also to the seisin, in that case the
Kazee must pass a decree in favour of the
possessor, according to all our doctors ; be-
cause both sales are in such an instance
universally admitted to be valid. Thus, how-
ever, proceeds upon a supposition of the date
of the plaintiff's purchase being prior to
that of the possessor's : for if the date
proved by the possessor be prior to that
proved by the plaintiff, the Kax.ee must pass
a decree in favour of the plaintiff, whether
the witnesses may or may not have specified
the seisin ; and the matter is adjusted as if
the possessor had first purchased the thing
from the plaintiff, and having received seisin
of it, had afterwards sold it to the plaintiff,
without having as yet delivered it to him;
or as if, having delivered it, it had reverted
to him again from some other cause.
The production of any number of witnesses
above the lawful number makes no difference
with respect to the decree. — IF one of two
plaintiffs produce two, and the other plaintiff
produce four witnesses still they are on an
equal footing ; because, as the testimony of
each two of the four witnesses is a complete
cause, or ground of decision, it follows that
the evidence of four witnesses amounts
merely to two causes ; and a multiplicity of
causes is no argument of superiority, since it
is in the strength of a cause, and not in the
number, that a superiority lies.
BOOK XXIV.— CHAP IV.]
CLAIMS
421
Case of a claim made by two person* to a
house \ where one claims the half and the
other the whole. — IF a house in possession of
any person be claimed by two other persons,
one of them alleging his right to the whole,
and the other to the half, and each bring
evidence in proof of his claim. in this case
the Kazee must adjudge three-fourths to the
claimant of the whole, and one- fourth to the
claimant of the half, according to Haneefa,
because (agreeable to his tenets) regard
must be had to the nature ofthedisnute :
aid as, m the present instance, no dispute
subsists with respect to one Mf, that half
goes exclusively to the claimant of the
whole; but as there is a dispute between
the pat\ies respecting the other half, and as
they are both upon an equal footing with
regard to the ground of their claim, that
half therefore eoes to them both in equal
proportions.— The two disciples allece that
the house must be divided between the
claimants in three equal lots, two going to
the plaintiff for the whole, and one to the
plaintiff for the half j because, according
them, regard must be had to arithmetical
proportion; m r ther words, the plaintiff for
the whole, in consideration of his claim,
which n to the two ha'ves, is entitled to two
lots, and the plaintiff for th<- rnlf, in consi-
deration of his claim, which is to one half,
'* j-nt- j C? to one lot : the house, therefore,
is divided between then in three lots.— If,
on the other hand, the house in dispute be
in the possession of the parties the whole of
the house in that case goes to the claimant
of the whole; for he receives the half pos-
sessed by the claimant of the half in conse-
quence of a decree of the Kazee (which de-
cree must necessarily be tzrantei him. since
in being a claimant for the whole, he is a
claimant for that half, without having DOS-
session of it, and judq-nent must therefore
be given according to his evidence) ; and he
keep the other half, of which he was him-
self possessed, as it is a necessary inference
that the claim of the other plaintiff related
only to that half of which he was in posses-
sion, since if he were to prefer a claim to
the other half, it must follow that the half
of which he is in possesion is held by an
unjust tenure:— and as no claim subsists
with respect to the half in the hands of the
claimant of the whole, it consequentlv re-
mains with him.— In short, the whole house
remains with him.
In claims founded upon generation re-
Zard mutt be paid to the date stated by the
claimant.— IF two persons lay claim to an
animal, and each adduce evidence to prove
its production, at the same time specifying
the date, in this case the animal must be
adjudged to the claimant whose witnesses
specified a date apparently according with
the age of the animal ; because, as probabi-
lity is an argument in his favour, he is there-
fore entitled to a preference,— IF . however,
the age of the animal be doubtful, and an
agreement with the date on one side or the
other not apparent, it mu«t then be adjudged
in an equal degree to both, and the specifica-
tion of dates set aside : that is, the case must
be considered in the same light as if no dates
had been mentioned. — If, on the other hand,
both the dates be repugnant to the apparent
age of the animal, the evidence of each party
is nugatory (and such also is reported from
Hakim), because the falsity of the evidence
on both parts is in such a case manifest : —
the animal is therefore left with the person
who may be in possession of it.
One party pleading a trust, and the other
asserting an usurpation, each is upon an
equal footing. — IF t'ia persons severally pre-
fer a plea against other who is in posses-
sion of a slave ; the one pleading that "the
possessor has usurped the said slave from
him," and the other, that "he has com-
mitted the said slave to him in trust ;" in
this case the Kazfe must decree one half of
the slave to each, as their claims are equally
strong.
Section
Of disputes concerning Possession.
The possession of an animal is ascertained
by any act which implies a use of the animal
IF two men dispute the possession of an
animal, one of them being mounted upon it,
and the other holding the bridle, in this case
the claim of the rider is the strongest, since
his act of riding upon it is an act in viitue
of right of property — In the same manner,
also, if one of them be riding on the saddle,
and the other on the croup, the claim of the
person seated upon the saddle is preferable.
It is otherwise, however, if they be mounted
upon an animal without a saddle ; for this
case the property of the animal is divided
between them, as both are, with respect to
the act of riding, upon an equal footing in
such an instance.
IF two men contend concerning a camel,
the one having a burden, his own property,
upon 'it, and the other haying in his hand
the Mohr or rope that guidet it. the right
of the person having the burden upon it is
preferable, as the camel is employed in his
service.
The right of one using a thing is prefer-
able to that of one laying hold of it.— IF two
men dispute respecting an under garment,
the one wearing it, and the other holding
the sleeve of it, the claim of the wearer is
preferable, as his act is evident.
IF two persons should dispute concerning
a carpet, the one being seated upon it, and
the other having hold of it with his hand,
the Kazee must not pass a decree in favour
of either.
IF two persons dispute concerning a piece
of cloth the one enclosing great part of it
in his hand, and the other having hold of the
border of it, in this case th« cloth is equally
parted between them* because the greater
quantity held by the one than the other
does not give a superiority of claim, as it
goes only to*! nish one argument or poof.
422
CLAIMS
[VOL. IIT.
Right of possession iver a foundling is
established by his own acknowledgment. —lv a
boy* be in the possession of any person, and,
being capable of explaining his own condi-
tion, declare that "he is free", his assertion
must be credited, in as much as he is his
own master.— If, on the other hand, be
dec' a re himself to be the slave of some other
person than the possessor, he is adjudged to
be the property, of the possessor, because, in
declaring himself a slave, he acknowledges
that he is not his own master. — (F. also, the
boy be not capable of explaining his own
condition, he is ad judged to be the property
of the possessor, because not being his own
master he is considered in the same light as
clothes or any similar article :— and if, after
attaining maturity, he claim his freedom, his
plea will not be admitted, because his slavery
during his childhood became apparent ; and
no matter that becomes apparent can after-
wards be set aside excepting upon proof f
The court of a Serai is adjudged between
the dispute/Us.-— IF there be ten apartments
of a Serai in the possession of one man, and
one apartment in the possession of another,
and they enter into a contention respecting
the court of the Serai, in this case the claim
of both must be adjudged to be equal, since
both have an equal right to the use of it, and
to pats through it.
A decree cannot be issued, rejecting a claim
to land, without the adduction of evidence. —
IF two men claim a piece of ground, each,
respectively, asserting it t> be "in his
possession," the Kazee in this case must not
pass a decree in favour of the possession of
either, until evidence be produced ; since
possession of land is not of a nature to be
actually seen by the Kazee, because of the
impracticability of producing it in court ; and
also, because it is necessary to prove by evi-
dence whatever is concealed from the know-
ledge of the Kazee. — If, therefore, either of
the parties produce evidence in. support of
his claim, the land must be adj idtgeJ to be
in his possession ; because of the establi^h-
ment of proof, and also because possession is
a right which is the object of desire In the
same manner as other rights. —I F both parties
produce evidence in support of their claims.
the ground must in that case be adjudged to
be jointly in possession of both — IF, how-
ever, one of the claimants should have tna Je
bricks upon the ground, or should have built
•Undoubtedly meaning a foundling, or
strayed child.
fThe translator has omitted a case of con-
siderable length, which immediately follows,
relative to the claim of sundry persons to a
wall, founded upon different circumstances
which argue right of property —These cir-
cumstances the translator has not been able
to 'procure a satisfactory explanation of ; and
they are probably such as relate to anti-
quated customs in Arabia.
upon it, or dug a well or a ditch in it, in all
these cases the possession must be adjudged
to him on account of those acts.
CHAPTER V.
OF CLAIM OF PARENTAGE.
A claim made by the seller of a femaU
slave to a child born of her within less than
six months after the sale, is establishea,~-lF
a person sell a female slave, and she after-
wards bring forth a child, and the seller
claim it.— in that case, provided thfc birth
take place in less than six months from the
sale, the child is adjudged to the seller, and
the mother is his Am-Walid. -This is ac-
cording to a favourable construction of the
law. In the opinion of Ziffer and Shafci the
claim is null ; and this is agreeable to
analogy ; because the seller, in making the
sale, has virtually acknowledged the child to
be a slave, which is inconsistent with his
plea of its bein<? his child.— The reason for a
more favourable construction in this par-
ticular is, that as the birth happened in less
than six months from thesile it is evident
that the conception must have existed whilst
the slave was in the possession of the seller ;
and this argues the conception to have pro-
ceeded from the seller, since there is no
reason to suppose that the woman was guilty
of wheredom. As pregnancy moreover, is a
circumstance which may remain unknown
for a time, the seller is on this account vindi-
cated from the charge of prevarication or in-
consistency and his claim is consequently
valid. — Now as his claim of parentage is
valid, it is therefore referred to the period of
conception ; and heo^ it appears that the
man has sold his Am-Walid ; and as the si!e
of an Am-Walid is unlawful, it must there-
fore be annulled, and the price must bz re-
turned by the purchaser, as having been
unjustly obtained.
And if the purchaser make the same claim,
still the claim of the seller is preferred — IF,
on the other hand, the purchaser should,
either at the same time with, or posterior to,
the claim of the seller, claim the parentage
of the child, in that case, also, the claim of
the seller is preferred, because of its having
existed prior to that of the purchaser, as
being referred to the period of conception.
// the birth happen within from six months
to two years after th$ sale, his claim is not
admitted without the verification of the pur-
chaser — SUPPOSING, however, the child to
be born two years after the sale, the seller's
claim of parentage is not in that case valid ;
because the conception, in this instance,
could not possibly have taken place during
his possession of the slave, and this is the
pnlv idea under which a decision could pass
in his favour : — his claim, therefore, cannot
be admitted unless it be confirmed by the
BOOK: XXIV.— CHAP. V.]
CLAIMS
423
rrrcha?er;in which case the parentage of
the child is established in the sellfcr. as on a
supposition of marriage :— for this reason,
however, the child it not fr*<ft nor is .the sate
annulled, since it is evident that the concep-
tion did not take place whilst the slave was
in the seller/a possession :— the child'*; free.,
dpm, therefore, is unestahlished, as well a*
theaventua freedom, of the mother.-*- Sup-
poame,als>, the, child to be born at any
period more than fix mon&s ?nd less than
two years from the. date of the sale, the claim
of parentage by the , sj'er cannot be ad-
rrittod unless it be verified the purchaser ;
d >c», in th s instance aU^, it is nqt absolutely
certain that the conception took place during
the seller's right of property, therefore there
is ro proof, and hence the necessity of the
wrificati n of the purchaser.— If, therefore,
the purchaser verify the claim of the s.-Uer,
the parental e is established in him and the
sale 19 annulled, snd, the child is free, and
the mother becomes an Am-VValid, 4n the
sam? manner as in the first instance ; because
the seller and the purphaser are both agreed
in the circumstance of conception having
taken place during the tight of property of
the seller.
T/ifmottor becomes his Am-Walid if the
child be living at the time of the claim.— If
the child, having been born in.. .less than six
months from th* sale, should die, and the
seller should afterwards claim his parentage,
.&« mother does «ot in that cate become his
Am-W%hd ; because she s a Dependant On
the child, with regard^o her eventual claim
to freedom ; and the child not being extant
to admit of its issue from the seller being
proved, she cannot of course become his Arm
Walid —If, on the other hand the mother
were to die, where the child had been born
in less than fix months from the sale, and
the seller claim his parentage, hi. this case
the parentage of tfi« child is established in
the seller, and he is entitled to resume the
child, ; because the chillis the principal with
respect to th* establishment of the parentage
and cannot therefore be affected by the extinc-
tion of a depwjdancy in the death of the mother
— IA thjs case the seller, accordin« to Haneefa
racist return the who)* of , the pricei because
it becomes apparent thu he told his Am-
Mfahd, and Haneefa holds! that the property
involved in an Aoa-\Valid is not of, an ap-
preciable nature, in sales and usurpations,
and that therefore the purchaser is 'not re-
sponsible for it in the present instande.— In
the ppimorj of the two disciples, however, he
ought only to tarun a proportion of the price
adequate jtp the value o.f the child, because
(according to them) tr^ property involved in
An Am WaiuJ « of an appreciable nature,
and consequently induces responsibility in a
purchaser.
;,i. ,^r^y» ; becoming an Anv\V<ilid;
*hich would have given her .an; eventual
claim to freedom.
Ifmadebythe>$elle1r,'after the mother fat*
been emancipated by the purchaser, it is
valid : but if the child should have been cman*
cvpaUdby him it is >nu/f.+— IT is< related, in1
the Jama ' Sagheer, that if a female slave,
being pregnant, should be sold by her
master, and! having afttrwards^ brought' fbttli
aichild, the seller should claim the child after
she had been emancipated by the purchaser;
in this case the child is considered as the'$ft"
spring of the seller, fcnd he must r»tu*n to
the purchaser a parr of -the price propor-
tionate to its value. This also accords with
the opinion of the two disciples, Hanetfa
alleges that the seller must return th« whole-
of the price, in the same taanner as in case'
of the mother's death ; and this* is approved.
— If, however, the purchaser Should have-
emancipated the child only, in thib case the
claim of the suiter is null. — The reason- for
the distinction between these two cases is as
follows —-In the former case, the child being?
the principal with regard to the claim, and
the mother only a dependancy (as has been
already explained), it fol'ows that the bar to
the claim of parentage and claim of offspring
(namely, emancipation) exists in the depen-
dant, that is, in the mother;— and conse-
quently cannot operate upon the child! who
is a principal: — the claim to the a hi Id is
therefore approved, and it is accordingly
free ; and the parentage is established in the
seller, The freedom of the child, moreover,
or the r&tiblishment of parentage, do not
necessarily inter that | the mother also- is
ema ^cipoted-— ( whence it is that «he child of
« Magroor is free, whilst the mother remains
a slave*:— and also; that if a person marry
the female slave of another, and' beget a
child upon her, the parentage is established
in him, wh*Ut the mother continues thd slave
of her master). —In the second cadei on the
contrary.* the bar exists in the -child, who is
the principal, and hence the claim cannot be
made good either with respect to the' prin-
cipal or the dependancy. — The freedom of
the child is a bar to validity of -the
claim, because, as emancipation is incapable
of annulment, in the same manner as a claim
of parentage ox of offspring are incap&ble of
it, they are therefore -both of equal force
Now, in the case » iiv question, an actual
manumission has been established on the
part of i the purchaser,, v hiist on the part jof
the seller, on the other hind, is established &
right of claim in regard to the child, -and a
right of emancipation in regard to the
mo the* ; but a mere right to a thing cannot
be < pposed to the actual thing itself. — It is
also to be abserved that tr^e purchaser's
creating the rihild a Mod*»bbir is, in this
respect, equivalent to the .complete emanci-
pation of him, as that also, is incapable of
annulment, and is, moreover, followed, by
certain of the effects of emancipation,— such,
fee instance, as preventing sale.
A claim made by the original seller, after
a second sales is valid ; and that sale is null.
— IF a person sell a slave, that has been born
424
CLAIMS
. IJjj.
of a tema c slave, who was his property at
the time of the birth,* and the purchaser
afterwards sell htm to another person, and
the fint teller then claim him, in that case
the slave in question U his child, and the
sale in null ; because sale is capable of an-
nulment, whereas the right of this person to
claisi thi parentage of the slave is incapable
of it ; the sale is accordingly annulled,— In
the same manner* if the buyer, after, the
purchase of the mother and son, should make
a Mokatib of the former, or pledge him, or
let him out to hire -t-or; if he >hould make a
lyiokattba of the mother, or pledge her, or
give her in marriage to some person, and the
seller afterwards claim the child,— in any of
these cases his claim must be admitted ; and
all the several contracts mentioned are an-
nulled, as they are all capable of annul-
ment.— It is otherwise where the purchaser
emancipates or make* a Modabbir of the
child. — as has been already explained : —and
it is also otherwise where the purchaser first
claim him as his child, and afterwards the
seller.— because the parentage, after having
been established in the purchaser, cannot
again be established in the seller. SB it is a
right which is incapable of annulment, and
hence the case is the same as if the purchaser
had emancipated him.
A claim «$tabliihid with respect to out twin
establishes it with respect to the oth-r also. —
IF a female i'ave bring forth twins, and the
proprietor claim the parentage of one of
them, in this case the estaolishment of
parentage in him, with, respect to one of
them, necessarily involves the same with re-
spect to the other ; because they mtist both
have been conceived from one reed ; for this
reason, that by twins is understood two chil-
dren born of the tame mother, ao4 between
the birth of whom a period of less than six
months has inter' ened,— and it is therefore
impossible that the conception of the other
child should have been supervenient and
separate, as pregnancy f cat. not be short of
aix months — It is related, in the Jama Sag-
heer, that if a person be possessed of two
slaves, twins, who had been born his pro-
perty, and he should sell one of them and
tjhe purchaser emancipate him, and the seller
afterwards, avow, as his issue, the one who
remains in his hards; in this case >x>th the
twins are his children, and the emancipation
of the purchaser is null ;, J because, upon the
parentage being established of the one in his
possession, by which he becomes free ; the
parentage and consequent freedom of the
are necessarily involved, as they are
•This case supposes the child and the
mother to be sold together, as appears by the
context a little further on.
fMeanina the pregnancy requisite to pro-
duce a perfect child,
£3ne effect of which is to destroy his
t of Willa, which he would otherwise
have enjoyed.
twins Hence, as it appears that the .pur-
chaser bought a person who was originally
free, it fo'ipws that his purchase and con-
sequently his emancipation of him is null* —
It is otherwise where there is only one shve,
for in this case the buyer's purchase and
consequent emancipation are not liable to be
annulled upon the seller establishing his
claim ; whereas, in the case now under con-
sideration, the emancipation of the purchaser
is rendered null dependantly'; in other'words
freedom is firat established in the slave Who
remained in the claimant's hands, and is
then, dependantly, established in him who
was sold and afterwards emancipated. There
is therefore a ma eriat difference between the
cases,* -1 •*
*ef'
A claim of offspring carinot tye established,
after on acknowledgment in favour of another
person.— If a person be possessed of a bdy,
and declare the boy to be the son of a certain
absent slave, and afterwards decla e him to
be his son, net " this case the parentage
although the absent /-slave were to deny the
boy to be his icion, — This is according to
Haneefa. The* two disciples have said that
in case the '•> denial of the slave, the
parentage of the possessor is established. —
A similar di?f.greement subsists where the
possessor declares the boy in his possession
to be the son of a particular person, and
born of hi* wife, and afterwards himself
claims the parentage of him.— 'The reasoning
of the two disciples is that the ackowle g-
ment, by the master, of the boy being the son
of his slave, tis repelled by the dental of the
slave, whenct the case becomes the same as
if no such acknowledgment had ever been
made.— Now, although parentage cannot be
annulled after the establishment -of it, yet
acknowledgment of parentage is set aside by
the denial of the person who is the object of
it, and the acknowledgment is ascribed to
levity or compu'sion (as if a person, t?y way
of levity, or under the influence of cbmpul-
sioQ, should make an acknowledgment that
his slave was his son, in which case his
acknowledgment is not valid) : — the case in
question, therefore, becomes the same as if a
purchaser of a slave should acknowledge that
the "seller had emancipated htm/'ia'nd the
seller deny the same/ and the purchaser then
say that "he had himeelfVmaricipated him ;
for in this case last -assertion of the pur1-
chaser is credited, and the willa-right with
respect to the slave thus emancipated rests
with -,hJzn ; and his ackcbwtedgmeht with
regard to the seller is considered as never
having existed; so also in the case in ques-
ticn.— It would be otherwise if the Boy should
verify the first assertion of the possessor (that
"he is the son of a certain absent slave/*)
•This case has been somewhat abridged
in the translation, and in particular^ the
matter part of it is entirely omitted as being
a mere repetition.
BOOK XXIV. -CHAP
CLAIMS
425
and the possessor himself should then claim
the issue ; because the claim woul J in such
a case be invalid, as having b^en preferred
after the proof of parentage in another. It
would also be otherwise if the slave should
remain silent, without either confirming or
denying th<: claim for, in this case also, the
subsequent claim of the possessor would be
invalid, because the right of the person
acknowledged relates to the boy, and there
is a possibility that he may varify the asser-
tion of the possessor. — The boy, therefore, in
this instance, stands in the same predicament
with tl e son of a woman who has been
required to make asservation, and who*e
parentage cannot be proved by any other
than the imprecator (namely, the husband of
the, woman), who has the power of afterwards
contradicting himself, and declaring that the
said son is his i^sue. --Haneefa, on the other
hand, argues that parentage is a matter
uhich, after proof, cannot be set aside ; nor
can the acknowledgment of such a matter be
undone by the rejection of the person who
is the object of it ; it therefore continues m
force notwithstanding the rejection ; and
1 ence the claim of the master, subsequent to
fuch acknowledgment, is invalid, although
the slave should contradict the acknowledg-
irent ; in the same manner as if a person
should bei.r testimony to the parentage of an
infant, and his testimony being set aside
from suspicion, he should then claim the said
infant as his son ; in which case his claim
would not be valid ; and so also in the case
in question. The ground on which this pro-
ceeds is that the right of the person in ques-
tion (namely, he slave) relates to the boy.
insomuch that, if the slave should verify
the assertion of the master subsequent to a
contradiction, the parentage of the boy is
established in the slave : and, in the same
manner, the right of the boy is connected
with the acknowledgment of the master ; and
hence the acknowledgment cannot be set
aside by the contradiction of the slave.* —
With respect to the case of a purchaser
acquiring the right of Willa, adduced by the
two disciples as analogous to this, it may be
replied that a disagreement subsists concern-
ing this case also ; as Haneefa does not
admit the doctrine there advanced : — or, if
it be admitted, still there subsits this differ-
ence between it and the case in question, that
Willa is capable of annulment, — in other
words, the right of Willa in one person is
sometimes set aside in favour of another,
when any supervenient circumstance occurs
to strengthen the claims of that other. Thus,
if Zeyd should contract his female slave in
marriage with the slave of K ha lid, and after
•Because a declaration which tends to
establish a right cannot be revoked : and, in
the case in question, the right of the boy
is to have his parentage established and
ascertained.
their having is*ue should emancipate the
mother, in this case the right of Willa, or
patron 'ge, over the child, belongs to Zeyd ;
but if afterwards Khalid should emancipate
his slave, who is the father of »he child, then
the right of Willa over the child would be
annulled in Zeyd, and would vest in Khalid*
the emancipator of the father, since the fight
derived from the emancipation of the father
is stronger than that derived from the e/nan-
cipation of the mother :— whereas, in the
case exemplified by the two disciples, th*
establishment of the right of Willa in the
seller ot the slave rests oa tru supposition of
tins seller, after h.vin^ contradicted the pur-
chase, again contradicting himself, and
verifying ihe assertion of the purchase ; and
when, in this state or suspended Willa, a
circumstance intervenes which operates as a
stronger cause for the establishment of the
Willa in the purchaser, the suspended Willa
in the seller becomes null. — The circum-
stance here alluded to is the assertion of the
purchaser that "he emancipated the slave ;"
and this operates as a stronger cause since it
gives immediate freedom to the slave in con-
sequence of his being the property of the
purchaser, whereas the emancipation of the
seller does not give immediate freedom, as it
rests upon the verification of the purchaser,
and hence becomes null on the supervention
of a stronger cause ; because Willa is capable
of annulment; contrary to parentage, as has
been already explained. — From this doctrine
of Haneefa, that the possessor's acknow-
ledgment of the boy being the son of his
slave cannot afterwards be set aside by the
contradiction of the person who is the subject
of that acknowledgment,— and that, conse-
quently, and subsequent claim of the pos-
sessor to the parentage of the child will not
be valid, — it follows that a decree may be
founded upon it for establishing the validity
of a father's selling his sou begotten upon
his slave ; for, in order to remove any appre-
hensions from the mind of the purchaser of
his afterwards claiming his son, and thereby
rendering the sale null, he may make an
acknowledgment of the issue in favour of
another, by which means he will effectually
preclude the possibility of himself afterwards
preferring a valid claim to him
A claim of parentage made by a Christian
is pr ferMe to a claim of bondage advanced
by a Mussulman.— IF a boy be in the posses-
sion of two men, of whom one is a Mussul-
man and the other a Christian, and the
Christian assert that "he is his son," and
the Mussulman that "he is his slave," he
must in this case be decree d to be the son of
the Christian, and free ; because, although
the religion of Islam have a superiority, yet
that sut eriority is allowed to operate only in
cases which are balanced against each other ;
but there is no balance between a claim of
offspring and of bondage : the claim of the
Christian is therefore admitted ; because
this is attended with a great benefit to the
boy, since it procures him immediate free-
426
CLAIMS
[VOL. HI-
do m, and (as may also be expectei) future
faith, inasmuch as the arguments for the
unity of the Godhead are evident and plain ;
whereas, if a contrary decree be passed (that
is, if the boy should be decreed to be the
•lave of the Mussulman, and not the son of
the Christian), in that case the true faith in
the boy would be established merely from
dependance, whilst he must be precluded
from freedom, as not having the power
himself to acquire it. — If, however both the
Mussulman and the Christian claim the
issue, the claim of the Mussulman trust in
that case be preferred, on account of the
superiority due to the true faith, and
because of the superior advantage that
would result to the boy.
A claim of parentage, by a married
woman , is not admitted, unless at least one
woman testify to the birth. — IF a married
woman should claim parentage, as if she
should say, "this boy in my arms is my
son," her claim is not valid unless the birth
be attested by the' testimony of one woman ;
because the claim so made relates to another,
and is therefore not admitted unless sup-
ported by proof : in contradiction to the case
of a father, as his claim of parentage relates
purely to himself. — (It is to be observed that
the testimony of the midwife alone is suffi-
cient with respect to birth, since the object
of the testimony is merely to ascertain that
the child in question is the identical child
which the said woman brought forth ; whilst
parentage, on the other hand, is established
on the ground of the mother of the child
being the wife of the husband :— it is, more-
over, recorded, in the Nakl Saheeh, that the
Prophet accepted the testimony of a mid-
wife, in a case of birth.)
Or (if she be in her edit) one man and two
women. — IF however the woman in ques-
tion be in her edit from a complete divorce,
the testimony of the midwife alone does not
suffice with respect to the birth ; —on the
contrary, that of two men, or of one man
and two women, is requisite — ( This is the
doctrine according to the opinion of Ha-
nee fa, as has been already mentioned in
treating of divorce.)
IF the woman be neither married, nor in
her edit from divorce, in this case lawyers
have asserted that the parentage of the
child t is established by herself ; her own
assertion on this head being admitted ; since,
in this case, it does not operate upon, or
affect, any other person. —But if, being mar-
ried, she should say, "this is my eon, be-
gotten by this my husband," and the husband
verify the same, there is in this case no occa-
•ion for one witness to prove the birth, since
the acknowledgment of the husband renders
it unnecessary.
But if her husband verify her claim, there
is no occasion for such evidence. — IF the boy
be in the joint possession of the wife and
her husband, and the husband should say
"this boy is my son, begotten not on this
woman but on another," and the woman
should say ''this is my son, begotten by
another husband/' in this case the boy-is
decreed to be their son, because of the pro-
bability of the thing founded upon their
joint possession of the boy, and their con-
nection with each other as husband and
wife. Besides, the assertion of each has a
tendency to destroy the right of the other,
and therefore that of neither out to be
adopted. — Thii case resembles that where
each of two men, having jointly the posses-
sion of a piece of cloth, asserts that it is the
joint property of himself and some other
person, in which case thre cloth is adjudged
to be the property of the two possessor. —
There is, however, this difference between
these two cases.— that in the case of the
cloth, the other persons, in favour of whom
the parties have respectively made an acknow-
ledgment, are admitted to a participation
in the shares of their respective acknow-
ledgers, because of the subject of conten-
tion (namely, the cloth) being capable of
division ; — whereas, in the case in question,
the persons referred to are not admitted to
a participation in the right of the acknow-
ledger, since parentage (which is the subject
of it) does not admit of participation.
Case of a person begetting a child upon a
female slave, under an erroneous possession.
— IF a person purchase a female slave, and
beget a child upon her, and claim it, after its
birth, as his issue, and it afterwards appear
that the slave had not been the propeity of
the seller, in this case the purchaser must
give, to the richtful master of the slave, the
value which trie child may bear at the time
of contention,-— and the child is free ; first,
because he is the offspring of a Magroor : for
a Magroor is defined to be a person who be-
gets a child upon a woman, on the belief of
her being his property — (or whom he has in
that belief married),— and who afterwards
proves to be the property of another ; and
this definition of a Magrooi is exactly appli-
cable to the person in question ; the issue
of a Magroor is therefore free for an equiva-
lent, according to all the companions : — in the
second place, a regard must be had to the
right of both parties. — The said child is
therefore completely free, in behalf of his
father, and a slave in behalf of the plaintiff,
namely, the proprietor of his mother.— Now,
since the child remains in the possession of
the father without any transgression or un-
warrantable act on the part of the father, the
father is therefore not responsible for it un-
less he become a bar to the seisin of it by the
proprietor (in the same manner at is decreed
in the case of the child of an usurped female
slave) ; and he is a bar only wh^re, the plain-
tiff having demanded the child, he [ the
father] refuses to surrender him ; whence it
is that the value of the child is estimated
from the day of contention, as it is then that
the bar begins to operate. If, therefore, the
child should die in the possession of the
father, without any contention having hap-
pened, the father is in no degree responsible,
BOOK XXV.— CHAP. I.]
ACKNOWLEDGMENTS
427
since no bar had taken place ; and hence,
also, if the child should die possessed of pro-
perty, the father inherits it, as the child was
completely free in right of his father —
If, on the other hand, the father should kill
the> son, he must in this case make compen-
sation for the value, since he himself ope-
rated as a bar the proprietor's right — In
the same manner also, if any other than the
father were to kill the child, and the father
exact the fine of blood, he must pay the value
to the proprietor; because, although the
child be destroyed, yet the compensation re-
mains \\hole and entire in the hands of the
father (since the fine of blood is a compen-
sation) ; and, as the existence of the compen-
sation is equivalent to the existence of the
thing itself, and the bar the compensation
is equivalent to the bar to the thing itself, it
follows that it is incumbent on him to give
the value, in the same manner as it would
have been incumbent on him in case of the
existence of the child. —It is to be observed
that the purchaser, after paying a compensa-
tion for the value of the child, is entitled to
receive the said value from the seller, since
the seller was responsible to him for the
safety and -preservation of it ; he is therefore
entitled to exact from the seller the value of
the child, in the same manner as the price of
the mother.— It is different, however, with
respect to the Akir, or fine of trespass, as he
is not entitled to exact that from the seller.
— The purchaser, therefore, as having had
carnal knowledge of a woman who was the
property of another, although he be exempted
from punishment for whoredom, because of
the doubt which existed, is notwithstanding
required to pay to the proprietor an Akir, or
fine of trespass ;— but he must not demand
a reimbursement for the Akir from the seller,
because he became liable to pay it for the
commission of an act of which he himself
reaped the sole benefit.
BOOK XXV.
OF IKRAR OR ACKNOWLEDGMENTS.
Definition of the term.— IKRAR, in the lan-
guage of the LAW, means the notification or
avXwaL?f tne ri«ht °f another upon one's
•elf.— The person making such acknowledg-
ment is termed Mookir ;— the person in whose
favour the acknowledgment is made is termed
Mookir-iee-hoo ; and the thing which is the
Rr1?? ?f Lthc acknowledgment is termed
Mookir-be-hee.
Chap. I — Introductory.
Chap. II.—Of Exceptions, and what is
_, , rTed e9uiva»ent to Exception
Chap. Ill; —Of Acknowledgment* made
by Sick Persons.
CHAPTER I.
Acknowledgment, proceeding from a compe-
tent person, is binding upon the acknowledger.
—WHEN a person possessing sanity of mind,
and arrived at the age of maturity, makes in
acknowledgment of a right, such acknow-
ledgment is binding upon him, whether the
subject of it be known or unknown ; because
acknowledgment (as has been already ex-
pla.necl) is An avowal of the richt of another
| upon one's self : and by acknowledgment the
! right of another becomes binding ; — and this
I argues the establishment of such right ; be-
en use, property being desired by all men, it
is not likely that any person would falsely
establish th-s right of another to a part of his
own riesides. the Prophet ordered Maaz to
be stoned in consequence of his acknowledg-
ment of whoredom.
tint not upon tiny other person — IT is pro-
per, in this place, to observe that acknow-
ledgment is a defective proof, — in other words
it operates only upon the person of the ac-
knowledger, and not upon that of another,
since over that he has no power.
The points that establish competency are
freedom — FREEDOM is established as a neces-
sary qualification in an acknowledger, in
order that his acknowledgment may be valid,
absolutely— (that is to say, with respect to
property and the like) : for although a privi-
leged slave be, virtually, the same as a tree-
mdn with respect to acknowledgement, yet
the acknowledgment of an inhibited slave is
not valid with respect to property, but merely
with respect to punishment or retaliation* —
The reason of this is that the ackowledgment
of an inhibited slave induces the obligation of
a debt upon himself ; and his self being the
property of his master, it is consequently the
same as if he had made an acknowledgment
in regard to another which is not lawful.—
It is otherwise with respect to a privileged
slave; for his acknowledgment is valid, as
his master, in privileging him, does virtually
assent to his contracting debts —It is other-
wise, also, with respect to the acknowledg-
ment of inhibited slaves, in cases of punish-
ment and retaliation ; for if an inhibited
slave should say "I have committed whore-
dom with a certain woman,"— or "1 have
killed a certain person,"— his acknowledg-
ment would in these cases be valid ; since a
slave, in matters relative to punishment and
retaliation, is allowed to assume his original
condition of freedom (whence it is that the
acknowledgment of his master with regard
to him in these cases is invalid).
Sanity of mndt and maturity— SANITY of
mind, and maturity of years, are also neces-
sary conditions in acknowledgment, because
the acknowledgment of an infant or an idiot
is invalid, as neither has any power to assume
an obligation upon himself. The acknow-
ledgment of a privileged infant is, however,
valid, as he virtually a major.
Acknowledgment is not invalidated by
ignorance of the subject.— IGNORANCE, with
428
ACKNOWLEDGMENTS
[VOL. IN.
respect to the subject, is not destructive of
the validity of acknowledgment, since it
sometimes happens that an ui known right
is due ; as where, for instance, a person
destroys something belonging to another,
of which the value was not known to the
owner, — or gives a person a wound, of
which the specific fine is not known at the
instant. — or, wh re a person has accounts
to settle with another, and of which he
knows not the exact balance in fav >ur of
the other. Acknowledgment, moreover, is
an intimation of the right of another ; and
the acknowledgment of an unknown right
is therefore valid.
But it is 50, by ignorance of the person in
whose favour the acknowled merit is made —
(!T is otherwise where the person in whose
favour the acknowledgment is made is un-
known ; for this is invalid: as a right or
claim cannot rest in an unknown person.)
— As the acknowledgment, therefore, of an
unknown right is valid, the acknowledger
must be required to define the unknown
thing, since it is with him that the igno-
rance originates ;— in the same manner as j
where a person emancipates one o- to
slaves, — in which case he is required to
specify the one to whom the emancipation
applies. — If the acknowledger should refuse
to make the specification, then the Kazee
must compel him ; since it is incumbent
upon him to disengage himself from the
responsibility founded upon a valid acknow-
ledgment, which he has incurred, and this
cannot be effectual but by a specification.
Acknowledgment generally made mutt be
specified to relate to something of a valuable
nature — IF a person say "I owe a thing (or
a right) to a certain person/' it is incumbent
on him to specify something valuable ; be-
cause he has acknowledged an obligation ;
and a thing which does not bear value in-
duces no obligation : if. therefore, he specify
something which bears no value, it is con-
sidered as a retractation of his acknowledg-
ment ; which in temporal concerns is not
admitted. — In the same manner, also, if a
person should say "1 have usurped a thing
from a certain person," it is incumbent on
him to explain it to be something bearing
value, and to the taking of which there
existed some bar and prevention ; since
usurpation is not established unless there
be a bar to the taking of it ; and accord-
ing to established custom there is no
bar where the thing in question bears no
value.
And if more be claimed than the acknow-
ledger specifies, his assertion, upon oath, is
credited — IF a person make an acknowledg-
ment with respect to an unknown thing, or
an unknown right, and define it to be some-
thing bearing value, and the person in whose
favour the acknowledgment is made should
claim more than is defined by the acknow-
ledger,— in this case the assertion of the
acknowledger, corroborated by an oath,
must be credited.
An acknowledgment, expressed under the
general term property, must be received
according to the explanation of the acknow-
ledger — IP a person say "property* is due
by me to a certain person, " he must explain
the amount ; and his explanation must be
credited, whether it be great or small, since
great and small are alike applicable to pro-
perty.— If, however, he specify less than one
dirrn, it is not to be admitted, since, in com-
mon usage, any thing short of a dirm is not
reckoned property.
But if made to a great property, it cannot
means less than what constitutes a Neizab in
the property to which it relates. — IF he
should say "a great property is duo by me/,
then, provided he explain it to be less than
two hundred dirrns, it cannot bo admitted
according to the two disciples (and also
according to ono report from Haneefa); be-
cause, where he describes the property in
question, as being considerable, his expla-
nation to any amount short of two hundred
dirms is not to be credited ; for, if it wore
otherwise, his description of great would be
idle and nugatory, since the smallest sum
which can properly be termed great is that
which constitutes a Nisab in Zakat f —
namely, two hundred dirms ; fts it is the
possession of this sum which bring* a per-
son within the description of wealthy. —
There is another opinion ascribed to Haneefa
that the explanation, if it be loss than
ten dirms (which is the Nisab fixed for
theft) must not be admitted ; because ton
dirms are what may property be termed a
great property, whence it is that, for the
theft of that quantity, the hand of man
(which is otherwise sacred ) is cut off. —
What is here advanced respects an acknow-
ledgment of great property in dirms. — But
if ho should have said "I owe great pro-
perty of deenars," then the amount due is
fixed at twenty Miskals. In camels it is
twenty-five ; because the smallest Nisab
of camels upon which a camel is due in
Zakat, is twenty-five J — In all property not
subject to Zakat, the explanation is required
to amount to a Nisab with respect to the
value ; § that is to say, if the acknowledger
explain to the value of a Nisab his acknow-
ledgment is to bo credited ; but if to less,
it must be rejected. — IF the acknowledger
should say, "I owe large properties," the
smallest specification that can in that case
be admitted is throe Nisabs, of that species
of property to which the acknowledgment
relates ; because the word properties is
•Arab. Mai ; meaning property in each,
or in the precious metals, Ac,, in opposition
to Rakht and Matta, which are particularly
applied to goods and effects.
+See Vol, I., p. I.
JUpon which a Zakat is paid of a year-
ling camel's colt. (See Vol. T. p 5).
§ See Vol., pp. 9 and 10.
BOOK XXV. -CHAP I.]
ACKNOWLEDGMENT
429
plural, and the smallest degree of plurality
is three.
Casei of acknowledgment relating to
many dirms — IF a person should say "I
owe many dirms," his explanation is not
admitted to an amount short of ten dirms,
according to Haneefa.— The two disciples
maintain that it is not to be admitted to an
amount short of two hundred ; because a
proprietor of a Nisab (namely, two hundred
dirms) is held to ba opulent — (not one who is
possessed of a smaller number,) whence it is
that the proprietor of a Nisab is required to
aid and assist others, and not he who is pos-
sessed of a smaller number. — The reasoning
of Haneefa is founded upon principles pecu-
liar to the Arabic language.
Or to dirms general y — IF the acknow-
ledger should say "I owe dirms," he is
supposed to mean three, as that is the least
number of plurality, But if he should him-
self explain a larger number, it must be
admitted, as the word dirms may be applied
to any number, --The weight of the dirms
must be estimated from what is customary.*
Section
Acknowledgement made in favour of an
embryo |(in virtue of bequest or inheritance
is valid. — IF a person say "I am bound, for
a thousand dirms, to the conception in the
womb of a c ertain woman ; and afterwards
add that "the said sum is due in virtue of
a bequest of a particular person" — or that
"it is the right of the conception in virtue
of inheritance from its parent " — the ac-
knowledgment so made is valid, in PS much
as it relates (in these instances) to a cause
which is fit and adequate to the establish-
ment of a right to property in a conception.
Provided the birth take place within a
probable period. — IF, therefore, the woman
should afterwards bring forth a living child
within such a period as evinces the concep-
tion to have existed in the womb at the
time of the acknowledgment, the acknow-
ledger is bound to the child for a thousand
dirms,
And if the embry* prove st.ll born, the
thing acknowledged must be divided among
the heirs; or, if twins be born, it must be
divided between them.— IP, on the other
hand, the woman should bring forth a dead
child, the acknowledgment in that case re-
lates to the testator or the inheritee, and the
amount of it must accordingly be divided
amongst their heirs ; because the acknow-
ledgment was in reality in favour of the
*A considerable portion of the text which
immediately follows has been omitted by the
translator, as the cases which it contains,
relating entirely to verbal cirticism, cannot
easily be translated, and are such as belong
more properly to the province of gramma-
rians than of lawyers.
testator, or the inheritee, and was to vest in
the offspring only on con ition of its being
born alive, which did not afterwards take
place. — If the woman should bring forth
two living children, then the thing acknow-
ledged must be divided equally between
them.
But if such acknowledgment be ascribed
tz an imposs'ble cause , tt is null — IF a person
say " I am bound to the conception of a
certain woman for a thousand dirms, being
the price of an article I purchased from the
said conreption," or "oeing money borrowed
from it."— no obligation rests upon the ac-
knowledger, as he explained it to arise from a
cause which could not have happened, since
a conception is incapable of either lending
or selling.
And so ahj if it be made without specify-
ing any cause.— If a person acknowledge
his being bound to a conception, without
specifying the cause, such acknowledgment
(according to Aboo Yoosaf) is invalid.—
Mohammed maintains that it is valid ; for,
as ackowledgment is proof, it is necessary
to fulfil it a far as mav be practicable ; and
it is practicable to fulfil it, in the present in
stance, by construing the cause to have been
such as was competent to the establishment
of aright of property in the conception —
The argument of Aboo Yoosaf is that an
acknowledgment, when absolute, is con-
strued to be in virtue of traffic (whence it-
is that the acknowledgment of a privileged
slave, or of one nit of the two partners by
recipocity, is understood to be an acknow-
ledgment founded upon traffic) ; the case,
therefore, is the same as if the acknowledger
had expressly specified the cause to be
traffic ;— and as that would have been in-
valid, so also is it invalid where the cause u
understood to be such from implication.
Acknowledgment relating to a thing exist-
ing, but not yet produced, is valid.--lF a per-
son acknowledge the conception of * female
slave, or the offspring of a goat, to > <*ue
to another, such acknowledgment is bind-
ing ; since it would have been valid if
he had bequeathed either of these, and
his intention is it therefore construed to be
^Acknowledgment of a debt under a lan-
diiion ofioption. is validt and the condition
becomes null -If a person should make
acknowledgment that "he owes Bother
a thousand dirms upon an °P^1 ™SJ-
tion" (in other words, if he should say the
said amount is due by me (or, from me), but
I have an option of three days ),-; -the con-
dition of option is in this case null, since
optional conditions are instituted with a view
to annulment, whereas /V^"9 feno
is a notification or avowal, which is b»ndin^,
the acknowledgment, therefore, is in thii
case binding, and is not rendered null by
the nullity of the condition.
130
AC KNOWLEDGMENTS
[VOL. IIT
CHAPTER II.
OF EXCEPTION J AND WHAT IS DEEMED
EQUIVALENT TO EXCEPTION.*
The exception of a part of the thing
acknowledged is valid, if immmediately joined
with the acknowledgment ; but if the whole
be excepted, the exception is not attended to.
— IP a person make an acknowledgment of a
thing in favour of another, adding an excep-
ion of part of the thing so acknowledged,
uch exception is valid ; and the acknow-
ledger becomes bound for the reminder,
whether the exception be great or small ;
provided, however, that it be immediately
joined to the acknowledgment. f If. on
the contrary, he except the whole of the
thing acknowledged, the acknowledgment
is in that case binding, and the exception
null ; because this is in fact a retractation,
not an exception ; for except ion supposes the
remainder of a part after the deduction of
the thing excepted from the whole ; but
after the deduction of the whole there is no
remainder : it is therefore a retractation, and
consequently nu 1
The exception must be homogeneous with
the acknowledgment : otherwse it is invalid,
— IF a person say "1 am bound to a certain
person for a hundred dirms, with the excep-
tion of one deenar" (or ''of one Kafeez of
wheat]"), then according to the two dis-
ciples he is bound for 4 hundred dirms,
with the exception of one; deenar (or of one
Kafeez of wheat) —If, on the contrary, he
should say ''I owe a tyundred dirms, svith
the exception of one 'piece of cloth:" the
exception so made is yiot valid. — Mohammed
maintains that the exception is invalid in
both cases. --Shafei.' on the other hand, holds
that in both cases ft is valid. — The argument
of Mohammed id that an exception means a
deduction from th« thing mentioned in the
preceding part of the sentence, which cannot
be established where the thing excepted is
not of the same genus with the thing from
which it is excepted. The argument of
Shafei is that the thing excepted, and that
from which the exception is made, are of
one and the same genus, as being both valu-
ables,— The argument of the two disciples is
that in the former instance, the thing itself,
and the exception from it, are of the same
genus as they are both pice : — deenars are
evidently so : — and things estimable by
weight, or by measurement of capacity, are
so likewise, according to their qualities; —
•"What is deemed equivalent to excep-
tion,"—that is, reservation of any kind, &c.
t That is, that it be expressed in the same
sentence with the acknowledgment.
I Grain is united with money in accounts,
both being considered as of the same genus,
since both are equally price (that is, standards
of value), and may be equally used to repre-
sent property. (See Partnership, note Vol.
II, p. 222.)
is other wards they become so upon their
qualities being explained. — In the second
instance, on the contrary (where the excep-
tion is cloth), the thing excepted, and that
from which the exception is made, are of
different genus, as cloth is not price in any
shape, neither in respect of itself, nor in
respect of its description or quality ; and
accordingly, cloth is not due in any contract
of exchange, excepting that of Sillim (that
is, where the price is advanced to the seller
beforehand) — Now wnatever is price has this
fitness, that it may be set in comparison with
dirms or deenars, and may consequently, in
a proportionate degree, be excepted from
them ; —whereas on the other hand, what-
ever cannot be stated as price has not a fit-
ness of being compared with dirms and
deenars, and consequently cannot be stated
as an exception from them, since the propor-
tion cannot be ascertained.
A reservation of the will of God renders
the acknowledgment null.— IF a person make
an acknowledgment, with this proviso "if it
please GOD," he is not then liable for any
thing; because (according to Aboo Yoosaf).
a reservation of the pleasure of GOD is either
an annulment of the acknowledgment, or a
suspension of it ; and the achriowledgment
is null on either supposition : — or, because
(as Mohammed argues) it is equivalent to an
acknowledgment suspended upon a coi dition,
which is null, as in acknowledgment does
not admit of being suspended on a condition,
since acknowledgment is an avowal, which
j cannot be made conditional ; for if it he true
. it cannot be rendered false by a default of
the condition; or on the contrary, if it be
false it cannot be rendered true by the fulfil-
ment ol the condition :— or, lastly, because
the acknowledgment is suspended on a cir-
cumstance which it is impossible to ascer-
f?iln'T *8 otrierwise where a person says
I acknowledge a hundred dirms to be due
by me to a particular person on my death,"—
or "upon the arrival of a particular month/'
— or "upon the festival of breaking Lent,"
—because in these cases the acknowledgment
is not suspended upon a condition, as this is
merely an explanation of the time and is
therefore a postponing of the thing ackow-
ledged, and not a suspension ; whence it is
that if the person in whose favour the ac-
knowledgment is made can prove the falsity
of the postponement, the thing becomes due
to him immediately.
In an acknowledgment regarding a house,
an exception of the foundation is invalid.— lv
a person make an acknowledgment of a house
in favour of another, and except the founda-
tion, both the house and the foundation are
the right of the person in whose favour the
acknowledgment is made; because the founda-
tion is included in the house from its depen-
dancy, and not from its being comprehended
in the word house ; and an exception is valid
only where it relates to something compre-
hended in the thing expressed, according to
the meaning of the word. It is to be observed
BOOK XXV.—CHAF. II]
ACKNO WLEDG MENTS
431
that the stone in a ring, or the trees of an
orchard, stand, in the same relation to the
ring or the orchard as the foundation does to
a house, because neither the word ring nor
orchard applies to the stone or the trees, but
are both included merely as. dependants. It
is otherwise where a person makes an acknow-
ledgment of a house in favour of another,
excepting from it an indefinite portion, or a
specific apartment, as the exception in these
cases relates to a thing which is comprehended
in the word house.
An exception of the court-yard of a house
is admitted.— 1? a person say "the founda-
tion of this house belongs to me, and the Sihn
(mean:ng the court-yard) to a particular per-
son ;" then the person in whose favour the
acknowledgment is made is entitled to the
court -yard, and the foundation is the pro-
perty of the acknowledcer. It is therefore, in
fact, the same as if the acknowledger had
declared that "all the ground free of build-
ing is the property of such a person." It
would be otherwise if, instead of Sihn. he
were to mention the word Arz [earth], for
in that case the foundation as well as the
house would become the property of the per-
son in whose favour the acknowledgment is
made ; because an acknowledgment of the
ground is an acknowledgment of the founda-
tion, as much as an acknowledgment of the
house itself ; for the ground is the original
thing, and the foundation is included along
with it as a dependant — In an acknowledg-
ment of the ground, therefore, the founda-
tion is ir eluded as a dependant, in the same
manner as it would be included in the house
itself ; and hence the exception is invalid.
A reservation of non-delivery of the article
is done away by the delivery of it to the
acknowledger. — IF a person acknowledge a
debt of a thousand dirms to another, as the
price of a slave which he had purchased
from that other, but which he had not re-
ceived from him, in that case, if the slave
be specific (as if he had said, ''as the price
of this slave"), the person in whose favour
the acknowledgment is made must be desired
to deliver up the slave and receive a thou-
sand dirms, on pain of forfeiting his claim. —
The compiler of the Hedaya remarks that
this case admits of several statements. — I.
That which has been already made, and
which proceeds on the supposition of the
acknowledger's assertion of the purchase
and the non- delivery being verified by the
person in whose favour the acknowledgment
is made ; and in which the law stands as
above expounded* because the mutual agree-
ment of the parties is equivalent to actual
inspection. — II. Where the person in whose
favour the acknowledgment is made denies
the sale of the particular slave alleged by
the acknowledger, and declares that * the
slave in question in his property and it is
another slave he sold to him ;"— in which
case the acknowledger is. liable for the
amount ; since he acknowledges a sum due,
on the supposition c f the existance of a slave
which he had purchased ; and consequently
upon the other person's declaration of the
existence of the slave sold, he becomes liable
for the amount.
OBJECTION. — It would appear that the
acknowledger is not responsible for the
amount, since he acknowledges his debt of a
thousand dirms for the purchase of a specific
slave ; whereas the person in whose favour
the acknowledgment is made claim the said
debt for the sale of another slave. — Now as
acknowledgment is binding only from the
particular cause which is assigned for it and
the cause in this case if contradicted by the
person in whose favour the acknowledgment
is made it follows that the acknowledgment
is not valid.
REPLY. — The contradiction, with respect
to the cause, after their mutual agreement as
to the existence of the obligation, is of no
effect. Thus if a person acknowledge his
responsibility to another for a thousand
dirms. as ' for goods purchased from him,"
and the person in whose favour the acknow-
ledgment is made assert the obligation in
question to have arisen from usurpation or
loan, still the acknowledger is responsible
for the amount : and also in the case in
question. — III. Where the person in whose
favour the acknowledgment is made declares
the slave in question to be his own property,
and denies his having sold him ; in which
case the acknowledger is exempted from any
obligation, because he has acknowledged the
pr >perty to be due only as in return for the
slave, and consequently, without that, it is
not due from him.
But in case of a disagreement with respect
to the article, both parties must be sworn. — IF,
however, in this casi, the person in whose
favour the acknowledgment is made should
further declare that "he had sold another
slave to him [the acknowledger]," both
parties must be sworn : because they are
both defendants, as they reciprocally deny
the assertions of each other :— and upon each
taking on oath, the obligation involved in
the acknowledgment is annulled, and the slave
remains with the person in whose favour
the a knowledgment was made.
If the article be not specific, the reservation
is not regarded. — WHAT is here advanced
proceeds on a supposition of the slave being
specific : for if a person acknowledge a debt
of a thousand dirms, due to another, for a
slave that he had purchased from him, with
out specifcilly describing the slave, the
acknowledger is in that case responsible for
a thousand dirms :— and his assertion, that
"he had not received the slave," is not to be
regarded, according to Haneefa, whether he
connect such assertion with his acknowledg*
ment, or make it separately : because such
assertion is a retraction of his acknowledg-
ment ; for this reason* that in acknowledg-
ing a thousand dirms to be due from him,
he assumes an obligation to that amount ;
and his denial of the receipt of the indefinite
slave is repugnant to this obligation, as the
432
ACKNOWLEDGMENTS
[VOL III.
price is not due for an indefinite slave, heciuse
of the uncertainty :— and this, whether the
uncertainty be interwoven in the contract
(as where a person purchases one of two
slaves), or supervenient upon it (as where a
person purchases a specific slave out of a
great number, and afterwards both the buyer
and the seller forget the slave that had been
purchased) ; because the uncertainty is a bar
to the delivery, since the purchaser may al-
ways deny whatever slave is produced by the
seller to be the one purchased : the uncer-
tainty, therefore, is a bar to the obligation
of the price ; and such being the case, the
acknowledger, in denying the receipt of the
slave, virtually retract* his acknowledgment,
which is not allowed — The two disciples
allege that if the person in whose favour the
ackno vledgment is made should verify the
acknowledger's assertion, by declaring the
debt of one thousand dirms to be due for the
price of a slave, the acknowledger's declara-
tion of his not having received the slave is
in that case to be credited ; nor is any thing
whatever due from him, whether such decla-
ration have been conjoined with the acknow-
ledgment, or otherwise.— But if the person
in whose favour the acknowledgment is made
contradict the acknowledger, wi'h respect to
the debt being for the price of a slave, assert-
ing it to be ' due for some other goods, then
the acknowledger's declaration of his not
having received the slave is not to the
credited, unless it be conjoined with the
acknowledgment. Their reasoning in sup-
port of this opinion that the acknowledger
having acknowledged the c bligation of the
debt upon himself, and having explained the
cause of it (namely, sale), it follows that if
the person in whose favour the acknowledg-
ment is made verify his declaration so far as
relates to the cause of the obligation, the sale
is fully proven and established ; the obliga-
tion, however, towards the discharge of the
debt, can be established only by the receipt
of the subject of the sale : and as this is
denied by the acknowledger, his assertion is
therefore credited — If, on the other hand,
the person in whose favour the acknowledg-
ment is made should contradict the assertion
of the acknowledger in regard to tne cause
of obligation, then the acknowledger's expla-
nation of the cause may be regarded as a modi
fication (that is, he by it modifies the tenor
of the first part of his speech) ; because the
tenor of the first part of his speech goes to
show that an obligation is at present actually
operating upon him ; whereas the latter part,
in denying the receipt, tends to prove that no
obligation subsists, since the obligation to
pay is not established till after the receipt :
the last part of the speech, therefore, is an
explanatory modification ; and a modifica-
tion is not admitted unless it be conjoined
with the acknowledgment,
A reservation of non- receipt of the thing
acknowledged must be credited. — IP a person
acknowledge the purchase of an article from
another* at the same time declaring that
"has not yet received it/' his assertion
must in that case be credited, according to
all our doctors : because he has merely
acknowledged a contract of sale ; and an
acknowledgment of sale is not an acknow-
ledgment of receipt, since a receipt does not
necessarily follow, a conclusion of sale.— It
is otherwise where a person acknowledge
the obligation of the price of an article pur-
chased ; for in that case his assertion of non-
receipt is not approved, as payment of the
price is not obligatory until alter the receipt
of the goods.
A reservation of the cause of obligation
being illegitimate does not annul th* acknow-
ledgment.— IF a Mussulman declare that
"he owes such a person a thousand dirms,
on account of wine or pork," he is bound
for the thousand dirms : — and his explana-
tion* of the cau*»e is not admitted, according
to Haneefa, whether it be conjoined with the
acknowledgment, or otherwise ; because it is
a retraction of his acknowledgment as the
price of wine or pork cannot be obligatory
on a Mussulman ; and in the preceding part
of his speech he expressly declares the
existence of an obligation upon him to the
amount stated. The two disciples allege
that if the explanation be conjoined with
the acknowledgment, nothing is due from
the acknowledger, since the latter part of
his speech evidently shows this to have been
his meaning, it being in fact the same as if
he had added "if it please GOD." To this
however, it may be replied, that there is no
analogy between the two cases, as a reserva-
tion of the pleasure of Gop is a suspension
f the matter upon a condition of which it
is impossible to obtain a knowledge. Besides
the suspension on a condition is a modifica-
tion, and consequently admissible, provided
it be conjoined with the speech : in opposi-
tion to an acknowledgment of the price of
wine or pork, which is not a suspension, but
an annulment of the acknowledgment, as
has been already explained.
An exception with respect to the quality of
money acknowledged to be due, is set aside
by the counter assertion of the person in
whose favour the acknowledgment is made
—If a person declare that "a thousand
dirms are due from him to such a person, as
the price of certain effects," or "on account
of a loan ;" and afterwards allege the said
thousand dirrns to be Zeyf, or Binhirja, or
Satooka, or Arzeez, and the person in whose
favour the acknowledgment is made allege
them to be Jeed,* in that case, according to
Haneefa, the acknowledger is responsible
for Jeed dirms, whether his latter assertion
be conjoined with his prior declaration, or
otherwise. — The two disciples maintain that
the latter assertion of the acknowledger is
to be credited, in case only of its being con-
jure money, of the current standard.
The other descriptions are explained a little
further on.
BOOK XXV.— CHAP, II. ]
ACKNOWLEDGMENTS.
433
relation to wheat, is not a quality but a
species, and an absolute contract does not
necessarily require that the wheat be other
than coarse. — IT is related as an opinion of
Haneefa, in other books than the Zahir
Rawayet, that in a case of borrowing, the
acknowledger's assertion of the dirms being
Zeyf ought to be credited, provided this
assertion be conjoined with the acknowledge-
ment ; because the act of borrowing is not
complete until after the seisin of the
borrower ; and it often happens that dirms
are Zeyf in borrowing, in the same manner
as in usurpation. The reasoning of the
Zahir-Rawayet is that the common custom
is to deal in good dirms, and therefore when
the explanation is absolute, good dirms must
be understood.
An exception unth respect to the quality is
admitted, if the case oj the obligation be
not mentioned by the acknowledger.— If a
person acknowledge that he owes another a
thousand Zeyf dirms, but without reciting
the case (such as sale or loan), some
authorities say that this assertion with
respect to the quality of the dirms is to
be credited, according to all our doctors.
Others, however, allege that, according to
Haneefa, it is not to be admitted, because,
as the acknowledgment is absolute, it may
relate either to legal contracts, or to acts of
violence, such as usurpation or destruction,
which are illegal :— and the former supposi-
tion is adopted, as acknowledgment is rather
to be attributed to a lawful than to an un-
lawful cause . . . . ,
And also where it is mentioned, if tt bf
either usurpation or trust.— IF a person
acknowledge his having usurped a thousand
dirms from another, or his haying received
them in deposit ; and afterwards assert that
the said dirms were Zeyf or Binhirja ; in
that case his assertion must be credited,
whether it be conjoined with or separate
from the acknowledgment ; because man-
kind are accustomed to usurp whatever they
can find, and to place in deposit whatever
they possess ;• and therefore neither of these
acts necessarily infers the dirms to have been
Teed (that is, good). The acknowledgers
assertion, therefore, of the dirros being
either Zeyf or Binhirja is equivalent to an
explanation of the species, and is conse-
quently admitted, even though it should
not have been conjunctively made,— For the
same reason, also, if an usurper Produce
a defective article, as the thing he had
usurped,— or a trustee produce a defective
article, as the thing he had received in
deposit,— the declaration so made must in
either case be admitted.— It is reported, from
in Aboo Yoosaf, that in case of an acknow-
ledgment of usurpation,, the acknowledger s
assertion of the dirms being Zeyf ought not
to be credited where it is made separately
joined- ivith the" former, and not otherwise,
— The same difference of opinion obtains
where a person declares that " he owes
another a thousand dirms " adding, that
"they are Zeyf," or that "another has lent
him a thousand dirms, but that they are
Zeyf/' or, that "he owes another a thousand
dirms on account of certain goods, but that
they are Zeyf." — (Zeyf dirms are such as
are not accepted at the public treasury, but
which pass amongst merchants ; the Binhirja
is of a kind still worse, which does not pass
amongst merchants ; and the Satooka and
Arzeez, are the .worst of all, and in which the
mixture of base metal preponderates). The
argument of the two disciples is that the
above explanation is a modification, and is
consequently valid if conjoined, in the same
manner as a condition, or an exception ; for
the word dirm is literally applicable to
Zeyf and metaphorically to Satooka ; the
acknowledger's declaration, therefore, of
their being Zeyf or Satooka is merely a
modification, in the same manner as for a
person should declare that "he owes a
thousand dirms, but of such a kind that ten
of them weigh five miskals. The reasoning
of Haneefa is that hi* assertion of their
being Zeyf or Satooka is equivalent to a
retraction ; for an absolute contract pre-
supposes dirms free from defect ; whereas
Zeyf and Satooka are both defective. Now
the plea of a defect is a retractation of part
of the obligation involved in the acknow-
ledgment ; and the case is therefore the
tame as if the seller of a thing should say
to the purchaser of it, " I have sold you a
thing with a defect, of which you were
apprised," and the purchaser deny his
knowledge of the defect, in which case the
denial of the purchaser is credited, as
probability argues in his favour, since every
absolute contract supposes a freedom from
defect. Besides, Satooka dirms do not con-
stitute price . and as a contract of sale is
never concluded but for price, it follows that
his explanation is, in effect, a retraction.
(With respect to the case adduced by the
two disciples of "an acknowledgment of a
debt of a thousand dirms, accompanied with
a declaration that the dirms due are of that
kind of which ten are equivalent to five
miskals/' — It is to be observed, in reply,
that the reservation is admitted, for this
reason, that the acknowledger, in this
instance, speaks with a reservation merely
of the degree or proportion of the dirms, and
to that the word dirms applies. — It is other-
wise in a description of the goodness of the
dirms, for as to this the term dirms does not
properly apply, it is not considered as a
reservation, any more thin the exception of
the foundation of a house.)
But not when the exception relates to the
species and not to the quality. — THE case is
different where a person acknowledges that
he is indebted to another a Koor of wheat,
as the price of a slave, but that the wheat is
of a coarse kind ; because coarsness, with
• Without any regard to the species or
quality.
ACKNOWLEDGMENTS
.[VOL
from the acknowledgment ; because of the
analogy of this case to that of a loan, on the
principle of seisin including re possibility
in both cases, that is, in a case either of
usurpation or of loan ; for he holds that, in
a case of loan, the acknowledger's assertion
of the money borrowed being Zeyf cannot
be credited, if separately made ; and so also
in the case in question.
Aeknowledgmen* with respect to the de-
posit or usurpation of Satooka dirms. — IF a
person acknowledge his usurpation of a
thousand dirms or his receipt of that sum
in deposit, and assert that they were Satooka.
in that case his assertion must be credited,
if conjoined with the acknowledgment ; but
not otherwise ; because although Satooka be
not in reality a species of dirms. still it is
customary to apply that word to them figura-
tively :— the mention of this term, therefore,
is a modification, and must consequently be
conjoined.
An exception of a part from the whole is
not to be credited, if made separately- — IP a
person declare that " he owes such an one
a thousand dirms, on account of certain
goods/' or that " he has borrowed a thousand
dirms," or that " he has received a thousand
dirms in deposit/' or that " he owes a thou-
sand Zeyf dirms/' or that he has usurped a
thousand dirms/'— and he afterwards except
a particular number of dirms from the obli-
gation.— in none of these cases is his asser-
tion to be admitted, if made separately from
the acknowledgment,— whereas if it be con-
joined with the acknowledgment it must be
admitted, as the assertion is in this case an
exception, and an exception is valid when
conjunct. It is otherwise if he assert the
dirms to be Zeyf, as a reservation of this
nature is not valid, since Zeyf relates to
quality : but expression applies solely to
quantity, not to quality ;' and exception is
not admitted with respect to any matter but
what may be precisely expressed.
Unless this arise from some unavoidable
accident. —IT is to be observed, however,
that if the exception should have been dis-
joined by necessity (such as by a cough, or a
shortness of breath), it is then considered a§
conjunct, because of the interruption being
unavoidable,
In an acknowledgment of usurpation a
damaged article must be accepted. — IF a per-
son acknowledge the usurpation of cloth, and
then produce damaged cloth, it must never-
theless be admitted, as usurpation is not
restricted to perfect things.
Where the property is lost, if the acknow-
ledger allege a trust, and the other party
assert an usurpation, the acknowledger is
responsible,— If Zeyd say to Omar, "I took
from you a thousand dirms by way of trust,
• Meaning, perhaps, that number admits
of a precise and definite expression, whereas
quality can be assert ained only by examina-
tion and inspection.
and they are lost," and Omar reply, "no ;
you took them by way of usurpation ; " in
that case Zeyd is responsible for the loss-
if Zeyd, on the contrary, say, " you gave
me a thousand dirms by way of deposit, and
they are lost/1 and Omar reply, "no; you
took th2m by way of usurpation /' in that
case Zeyd is not responsible for the loss.
The difference between these two cases is,
that Zeyd (in the former case) first acknow-
ledges a thing which is a cause of respons'1-
bility, namely, taking, and afterwards asserts
an exemption from responsibility, by declar-
ing that he held it as a deposit. Now a
deposit implies the consent of Omar ; but
Omar denies his assent ; and therefore, as
defendant, his a^sertion supported by an
oath must be credited. In th: ;econd case,
on the contrary, Zeyd does not make any
acknowledgment subjecting him to respon-
sibility ; because, in using the word given.
he ref.rs the action to Omar and not to
himself : and no one is subject to responsi-
bility for the actions of another Omar,
on the other hand, asserts, against Zeyd, a
cause of r£soonsibility, namely, usurpation ;
which Zeyd denies; and consequently, as
defendan , his uord supported by an oath
must be credited. — It is to be observed that
the word receive, in thii case, is equivalent
to take ; and the word remove to that of
give. Thus, if the acknowledger, instead of
taken, should say that he had received a
thousand dirms, he is in that case subject to
responsibility. If, on the contrary, he say,
" you have removed to me/' instead of " you
have given me/' he is not in that case sub-
ject to responsibility.
OBJECTION, — Neither giving nor removing
can be carried into execution without receipt
on the part of the other party. An acknow-
ledgment of giving or of removing, there-
fore, is virtually an acknowledgment of
receiving ; and consequently it would appear
that, in either case, the acknowledger is
subject to lesponsibility.
Ri PLY — The giving and removing of one
thii g to another is sometimes performed by
a mere relinquishment of the riyht in an
article (that is, by a non-prevention of the
other from taking it) ; and sometimes by
placing the article before the other. — Giving
and removing may therefore be carried into
execution without a receipt or taking : and
hence an acknowledgment of giving or re-
moving does not involve an acknowledgment
of receiving or taking. Besides, admitting
that receipt is established from giving or
removing, still it is established only by
implication is adopted only in cases of neces-
sity ; but there exists no necessitv, in the
present instance, to establish responsibility
for tho loss.
But not if he assert a trust, and the other
assert a loan. — IF a person say to another,
" I have taken a thousand dirms from you
bv way of deposit " — and the other reply,
" no ; you have taken them by way of loan/
BOOK XXV.— CHAP If.]
ACKNOWLEDGMENTS
433
— in this case the assertion of the acknow-
ledger, notwithstanding his use of the word
taking, must be admitted : for both parties
are agreed in the taking of, the dirms with
the consent of the person in whose favour
the acknowledgment is made ; but he asserts
a loan (which is a cause of responsibility),
whereas the acknowledger asserts a deposit.
— There is an evident difference between
this case and that which has already been
explained, in which the person in whose
favour the acknowledgment is made asserts
usurpation ; because that person stands as
defendant, since he denies his consent.
Case of acknowledgment of the receipt of
money , with a reservation of its being the
property of the acknowledger. — IF^ a person
say, "this sum of a thousand dirms, my
property, was in trust with such a person,
and as such I have taken it from him/' and
the other deny this, and declare the said
sum to be his own property ; he is in that
caie entitled to take it from the acknow-
ledger ; because the acknowledger confesses
that he took the sum in question from him
on the claim of its being his own property,
which the other denies ; and hence his asser-
tion, a-; defendant, must be credited.
Case of acknowledgment of the receipt of
specific property, with a reservation to the
same effect. — IF a person affirm that he had
hired out an animal of carriage to another,
who, after riding upon him, had returned it
to him, — or, that he had hired out a garment
to another, who, after wearing it, had re-
turned it to him, — and the other contradict
this, declaring the said animal or garment
to be his own property, in that case, according
to Hancefa, the assertion of the acknow-
ledger must be admitted, upon a favourable
construction — The two d'sciples maintain
that the assertion of the other party must be
credited ; and this is agreeable to analogy.
— (The same difference of opinion also obtains
where, instead of hiring out, the acknow-
ledger says that he had Tent his horse to the
other to ride on, or his house to reside in, —
or, had given his garment to another to
mend, or hire, — and had afterwards resumed
the article, and the other declare it to be his
property. — (Analogy would suggest » as has
been already mentioned in the example of
deposit) that the acknowledger, in these
cases, has confessed his having taken and
possessed himself of things which, however,
he asserts to be his own property ; but which
is denied by the person in whose favour the
acknowledgment is made ; whose assertion,
as defendant, must therefore be credited.—
The reasons for a more favourable construe
tion. in this particular, are twofold. — FIRST,
the establishment of the receipt, in cases of
hire and of loan, is not admitted from itself,
but from necessity (that is, from the neces-
sity of answering the object of the contract,
namely, the usufruct of the artic'e) ; and
the •fleet is therefore restricted to the point
of necessity. Hence the acknowledgment of
hire or of loan does not involve the acknow-
ledgment of receipt, as in the case, of a
deposit — SECONDLY, as in the case i of hire,
loan, and residence, the possession of the
person in whose favour the acknowledgment
is made is established solely by the avowal
of the acknowledger, his explanation of the
nature of that possession must be admitted.
It is otherwise in the example of deposit,
since a deposit may be made without a deli-
very ; as where, for instance, a person's
gown is blown, by the wind, into another
person's house, in which case the gown re-
mains a deposit with the owner of the house,
although not formal delivery have been made.
The author of this work observes, that the
point upon which the difference between the
cases of hire, loan, or residence, and that of
deposit (as before explained) turns, is not
that the word take is recited in the latter
and not in the former cases ; because this
word is used by Mohammed, in the case in
question, in the Mabsoot, treating of acknow-
ledgments ; — but that it rests upon the two
reasons for a favourable construction of the
law in this particular, as recited above.
IF a person says "I have received from
such a person his acquittance, of a thousand
dirms which he owed me," — or, "I lent
such a person a thousand dirms, and have
received back the same," — and the other
deny the previous existence of the debt, our
doctors are, in that case, unanimously of
opinion that the assertion of the person in
whose favour the acknowledgment is made
is to be credited : because a debt must be
discharged by means of a similar ; and this
cannot otherwise be accomplished than by
the creditor's receiving a portion of the
debtor's property, equivalent to the debt,
in such a manner as may induce responsi-
bility. The acknowle icer. therefore, in
saying that he had received from the other
an acquittance of the debt with that other
owed him, confesses a circumstance which
is a cause of responsibility ; and he After-
wards claims the right of property in the
same, in virtue of its having been given to
him in exchange for his debt, which is
denied by the other ; he therefore stands
as defendant, and his assertion must con-
sequently be credited. It is otherwise in
assertions of hire, loan, or residence, be-
cause the thing seized, in those instances, is
an dentic article, for which the acknow-
ledger claims the hire, or so forth : there is
therefore an evident difference between the
cases.
Case of dispute with respect to immovable
property,— IF a person acknowledge that
another has cultivated a particular piece of
land, or built a particular house, or planted
grapes in a particular orchard, the said land,
house, or orchard being in the possession of
the acknowledger, and the person in whose
favour he acknowledges claim the property
of these things, and the acknowledger, on
the other hand, declare them to b« his own
property, and that the other, in the cultiva-
tion, building, or planting, had only acted
436
ACKNOWLEDGMENTS
[VOL. III.
by his desire, as his assistant or a« his
hireling— in that case the assertion of ^he
acknowledger must be credited, according
to all our doctors ; because he does not
make an acknowledgment of the possession
on behalf of the other, but merely of the
above-mentioned acts as performed by that
other, and these do not argue a right of pos-
session, since the person in whose favour the
acknowledgment is made might hav-> law-
fully performed these acts upon things that
were in the possession of the acknow edger.
The case, therefore, is the same as if a per-
son were to declare that a particular tailor
had sewed his garment for rulf a dirm. but
that he had not received the garment from
the tailor ; and the tailor claim the pro-
perty of the garment : for there the acknow-
ledgment so made is not supposed to allude
to the possession on th* part of the tailor,
and therefore the assertion of the acknow-
ledger is credited ; and so also in the case in
question. It is otherwise if the acknow-
ledger say that "he has received possession
from the tailor ;" for concerning that case
there is a disagreement amongst our doctors,
similar to what has been described.
CHAPTER III
OF ACKNOWLEDGMENT MADE BY SICK
PERSONS,*
Debts acknowledged on a deathbed (without
assigning the cause of them) are preceded by
debts of every other description. — IP a person,
in his last illness, acknowledge a debt, as
being due to another and he also owe other
debts contracted during health, or debts con-
tracted during big sickness for known causes
(such as the purchase or the destruction of
property, and of which proof may be obtained
by other means than though his acknow-
ledgment, or be indebted to his wife married
during his sickness, for her Mihr-Misl (or
proper dower), — all these debts so contracted
during health or sickness have a preference
to that other which he so acknowledges
during his sickness, and of which the cause
is unknown, Shafei maintains that the debts
of the healthy and the sick are alike valid,
since acknowledgment, which is the cause of
both, is in both instances equal, inasmuch
as it is derived from the understanding.
Debt, moreover, and the responsibility of the
person to which the obligation relates, are
capable of comprehending the rights of a
variety of persons. An acknowledgment of
*By sick persons, throughout the whole of
this chapter, is meant such as are effected
with a mortal disorder. — (The analogical
principle on which the law upon this head
proceeds is set forth in treating of the divorce
of the sick.— See Vol I., p. 99.)
debt, therefore, resembles the settlement of
a contract of purchase or of marriage ; — that
is to say, if a sick person purchase goods, and
remain indebted for the price, — or marry on
a proper dower, and remain indebted for the
same, — debts so contracted arc upon an equal
footing with debts contracted during health ;
and so also in the case in question.-— The
argument of o r doctors is that acknowledg-
ment is not valid when it lends to prejudice
the right of another ; and the acknowledg-
ment of a sick person does induce thit
Consequence, since the rights of the creditors
of debts contracted during his health are
connected with his property, inasmuch as
they may seize it for the payment of what is
owing to th«m ;— whence it is that deeds of
a gratuitous or benevolent nature are not
allowed, in a sick man, beyond the extent of
a third of his estatj. — It is otherwise with
respect to marriage on a proper dower,* as
marriage is one of the most essential wants
of a sick person, since in the same manner as
man is impelled to his own preservation so
also is he impelled to the* propagation of his
species. —It is otherwise, also, with respect
to the purchase of property f r an equivalent
price ; because the right of the creditors is
connected with the substance of the property
and not with the f >rm of it ; and in an
instance of purchase the substance is extent.
— During health, moreover, the right of the
creditors is connected with his person, not
with his property, since whilst he is in a
condition to acquire property, it is supposed
that the property will increase : — a state of
sickness, on the contrary, is a state of
inability, and therefore the right of the
creditors is then connected with his pro-
pert/, f
OBJECTION, — If the connection of debts
contracted during health, with the property
of the sick person, be a bar to the obligation
of other debts, because of the priority of the
former, it follows that if a sick person,
having made an acknowledgment in favour
of a person, should afterwards make an
acknowledgment in favour of another, it is
not valid, because the first acknowledgment
is preferable, as being connected with his
property ; whereas, according to law, they
are both valid
REPLY. — The whole period of sickness is
considered as one and the same, because the
whole of it is a time of restriction, and
therefore one part or period of it is the tame
as another.-— It is otherwise with respect to
health, as health is not a period of restric-
tion, and therefore deeds are then lawful,
•That is to say, without any p rticular
specification of a dower : for if a sick person
marry upon a specified dower, the agreement
holds to the extent only of one-third of his
whole property.
t What is here said meriti lome attention,
as it elucidates a very important point in the
laws of property.
BOOK XXV.— CHAP. HI ]
ACKNOWLEDGEMENTS
437
whereas, sickness being a time of restriction,
many needs are then unlawful.
It is to be observed that debts contracted
during sickness, of which the cause of the
obligation is known, are preferable to debts
of sickness which are supported merely upon
acknowledgment; because the former are
free from suspicion It is also to be observed
that debts of sickness, of which the cmse
is known, are upon a foot of equality with
debts of health, neither having a preference
over the other ;— a debt of a proper dower,
because of the necessity for marriage ; and
debts contracted on account of purchase, or
of a loan, because of the existance of an
equivalent.— The right of the creditors,
moreover, is ccniected merely with the sub-
stance ; and as, in the establishment of these
debts, there is no doubt or suspicion, they
are therefore on a foot of equality with debts
of health.
A dying person cannot concede anv specific
property by acknowledgment.- IF a sick
person make an acknowledgment in favour
of any person, of something hp holds in his
hand, such acknowledgment is not valid,
because of the injury it induces to the
creditors, whose right is connected with that
thin?.
Nor make a partial discharge of his debts
(exccptinK those contracted during his ill-
ness).— IT is not lawful for a sick person to
discharge the debts of part of his creditors,
because such partial d scharge is a destruc
tion of the right of the others ; and in this
respect the creditors of health and of sickness
are upon an equality : — excepting, however.
where the sick person res' ores something he
may have borrowed during his sickness, or
pays the price of something he may have
purchased during his sickness ; and the
obligation admits of being proved by wit-
nesses :—in other words, if a person borrow,
during his last illness, a thousand dirms,
and keep the same by him, or purchase any-
thing with them to that value, and after-
wards repay the loan, or pay the price of the
purchase, it is lawful, where it admits of
being proved by evidence, because these
payments are attended with no injury to the
creditors, as the acknowledger has obtained
an equivalent for what he pays.
A debt acknowledged upon a death-bed is
discharged after all other debts.— Iv, after the
discharge of the whole of the preferable
debts, there still remain some property of
the sick man's estate,* such residue must
be applied to the discharge of the debts
acknowledged during his sickness ; because
such acknowledgments were in themselves
valid, and having been annulled merely from
This case supposes a disribution of the
effect* of the acknowledger, after hi* decease;
and the term sick man is applied to the
defunct, in this instance, merely to dis-
tinguish him, as having acknowledged debts
whilst he wai sick of a mortal illness.
a regard to the rights of the creditors, they
resume their original validity when the bar
to their operation is removed.
If there be no other debts it is discharged
P e vious to the distribution of the inheritance.
— The acknowledgments of debt, by a sick
person who does not owe any debts of health,
are valid, as they occasion no injury to
others. — In such case, also, the said debts
ar; preferable to the claims of the he.rs ;
because Omar has said, "whenever a sick
person acknowledges debts, they mutt be
conj-idered as obligatory, and discharged from
his effects. "—Besides, the discharge of his
debtb is a matter of necessity : and the right
of the he rs is connected with his estate on
the sole condition of its Icing free from
iiKumbrance; whence ; it is that the discharge
of the funeral expenses precedes the right
of the heirs, as that is also a matter of
necessity.
An acknowledgment in favour of anh«iris
riot valid, unless admitted by the co-heirs. —
IF a sick person make an acknowledgment
in favour of any of his heirs, it is not valid,
unless it be verified by the other heirs.—
Shafei, in one report of his opinion upon this
point, says that it is valid ; because acknow-
ledgment i* the manifestation of an estab-
lished right ; and the probability is that the
acknowledger has spoken truth, since reason
forbids falsehood, more particularly in time
of stckness.—Besi es, as religion and justice,
when joined to reason, must restrain a man
from falsehood, the acknowledgment of a tick
person in favour of his heir is like an ac-
knowledgment in favour of a stranger ;— or,
like an acknowledgment in favour of an addi-
tional eir — (as if a person should acknow-
ledge that "a particular person is his son,"
—which acknowledgment is valid, notwith-
standing it diminish the rights of the other
heirs) ;—or, like an acknowledgment of the
destruction of a deposit, the property of an
heir (as where, for instance, a person lodges
a deposit of one thousand dirms, during either
health or sickness, with his father, in the pre-
sence of witnesses, and the father afterwards,
whilst dymi, acknowledges that he had de-
stroyed the deposit of his son,— in which case
the acknowledgment, is valid, and the person
in whose favour it is made is entitled to a
thousand dirms from the estate of the acknow-
ledger, although it dimmish the right of the
heirs ;— and so also in the case in question],—
The arguments of our doctors upon this point
are threefold.— FIRST, the Prophet has said
'there is no legacy to an H«IR, and no ac-
knowledgment of a DEBT in favour of an
HEIR."— SECONDLY, ;s the right of the heirs
is connected with the property of a person in
his last sickness (on which account he is not
permitted, at that period, to do any deed of
cratuity or affection), an acknowledgment in
favour of some of the heirs is invalid, as
being prejudicial to the right of the others. --
THIRDLY, as the sick person, m his latt ill-
ness, is above the want of his property, and
as affinity is the cause of connection the right
438
ACKNOWLEDGMENTS
[VoL III.
of the whole of the heiis with the pioperty,
when the want of it no longer exists in the
tick person, it follows that at such period an
acknowledgment in favour of a part of them
must be an injury to the whole. This con-
nexion, however, does not operate with respect
to strangers because of the necessity the sick
man was under, during hed h, of entering
into concerns* with them ; for miny of the
concars of the sick (such as purchase, sale,
and the like) are entered into with strangers
during heath ; and if their acknowledgment
of these during th ir sickness were not valid,
peoph would be cautious of dealing with than
during their health, and their affairs would
of consequence suffer, —Such an acknowledg-
ment, therefore, is preferable to the claims of
the heirs — It is to be observed that the con-
nexion here mentioned does not operate to
the destruction of a sick man's acknowledg-
ment of percentage, by which an additional
heir is occasioned ; because the sick man also
is necessitous in this particular, as percentage
exists after death, and a man is held to con-
tinue in existence, after death, in the person
of his offspring ; whence parentage is one of
the wants of the dead.
And so also of an acknowledgment in favour
of a part of the heirs. — IF a sick man make
an acknowledgment in favour of part of his
heirs, and the others verify the same, such
acknowledgment is valid, because of the re-
moval of the only obstacle, namely, the con-
nexion of the right of the other heirs with hia
property, which they themselves relinquish.
Th* acknowledgment of a dying person in
favour of a stranger is valid, to the amount of
the whole estate. — Ir a sick person make an
acknowledgment in favour of a stranger, it is
valid, although it be tantamount to the whole
of his property,— because Omar has said "the
acknowledgment of debt by a sick person is
valid ; and the debt is due from the whole of
his estate " — (as before quoted).— Analogy
would suggest that the acknowledgment does
not operate in a degree beyond the third of
his property ; as it is in that degree only that
the LAW admiti of the deeds of a sick man
with regard to his property. — Our doctors,
however, remark upon this that as the acts of
a sick person are valid with respect to a third
of his property, it fo'lows that the acknow-
ledgment of a sick person is valid in the same
proportion ; and it then becomes valid with
respect to the remaining thirds also ; because,
upon the sick person acknowledging one third
of his property to belong to another, it be-
comes from that moment the property of that
other; and as the remaining two third then
from the whole of the property of the acknow-
ledger, he may lawfully make an acknow-
ledgment of one third of it, and so on,
until nothing remain.
* Arab, Moalikat ; meaning concerns of a
suspended nature, — such as purchase with a
suspension of payment of the price, and so
forth.
bequest to the extent of the whole property
as also valid.
.— -In bequest, the third of the estate
does not become the property of the legates
until after the death of the testator ; and ac-
cordingly, they cannot claim their legacies
before that event It is otherwise with re-
spect to an acknowledgment of bebt, as the
person in whose favour the acknowledgment
is made becomes immediate proprietor. —
There is therefore an evident distinction
between the cases.
But it is annulled by a subsequent acknow-
ledgment of the stranger being his son. — IF
a sick person make an acknowledgment in
favour of a stranger, and afterwards declare
that "he is his son," the parentage is estab-
lished accordingly, and the acknowledgment
is null.— If, on the contrary, a sick person
make an acknowledgment in favour of a
strange woman, and afterwards marry her,
the acknowledgment does not become null-
The difference between these two ca»es is
that, in the fo-mer upon the sick psrs:>n
declaring th,> other to be his son; his parent-
age is established in the acknowledger from
the instent of conception in the mother's
womb; whence it is evident that the person
in whose favour the acknowledgment was
made was the heir of the acknowledger at
the period of his acknowledgment ; and con-
sequently, that he has nude an acknowledg-
ment in favour of his own son, which is in-
valid of course — It is otherwise with respect
to marriage ; for, as the relationship pro-
duced by that takes piece only from the
time of contracting it, it follows that the
women was not the acknowledger's heir at
the time of the acknowledgment ; and con-
sequently, that his acknowledgment in her
favour remains valid.
Case of acknowledgment in /Jt»>ur of a
repudiated wife. — IF a sick person repudiate
his wife by three divorces, and then make
an acknowledgment of debt due to her, and
die,* she is in that case entitled to which-
ever of the two claims (nimbly, her portion
of inheritance, or the amount of the debt
acknowledged) may be th; smallest. — The
reason of this is that both the woman and the
man are in this case liable to suspicion ; for
as the edit, or term of probation was not
expired, the woman, after his death, is an
heir, and an acknowledgment in favour of
an heir is not valid, — Hence there is possi-
bility that the woman may have requested
her divorce as the means of her acquiring a
right to the acknowledgment ; and that the
husband may have divorced her with the
view of giving her more than she was entitled
to as an heir. As, therefore, both husband
and wife are liable to suspicion, the smallest of
th» two claims is decreed to the woman, since
concerning that there can be no suspicion. t
* Before the expiration of her edit.
fSee this treated of at large under the
head of the divorce of the sick. (Vol. 1.
p. 99.)
BOOK XXV —CHAP. III.]
A<2KNOWLE OGMENTS
439
Section
Miscellaneous Cases.
Acknowledgments of parentage with re-
sepect to infants — IF a person acknowledge
the parentage of a child who is able to give
an account of himself, saying, "this is my
son/' and the ages of the parties be such as
to admit of the one being the child of the
other, and the parentage of the child be not
well known to any person, and the child him-
self verify the acknowledgment, his parent-
age is established in the ack owledger,
although he [the acknowledger] be sick ;
because the parentage in question is one of
those things which affect the acknowledger
himsv if only, and no other person — 1 1 is made
a condition, in this case, that the ages of the
patties be such as to admit ot the relation
of parentage ; for if it were otherwise, it is
tvident that the a.knowledger has spoken
falsely. — It is also made a condition that
the parentage of the boy be unknown ; for
if he be known to be the issue cf j>o.iie other
than the ackowledger, it necessarily follows
that the acknowledgment is null It is al *>
made a conditic n, that the boy verify the
acknowledgment ; because he is considered
as his own master, as he is supposed able to
give an account of hirme f. — It were other-
wise if the boy could not explain his con-
dition ; for then the acknowledgment would
have operated without his verification. — It
is to be observed that the acknowledgment,
in this instance, is not rendered null by sick-
ness ; because parentage is an original and
not a supervenient want. By the establish-
ment of the parentage, therefore, thi boy
becomes one of the acknowledger's heirs, in
the same manner as any of his other heirs
Achnouledgmentswith respect to parents,
children, and patrons, are valid. — IP a per-
son acknowledge his parents or his son (as if
he fhould declare that " a certain man is his
father/' or, that " a certain woman is his
mother/' or, that " a certain person is his
son/' — and the ages of the parties admit of
those relations), — or, if a person acknowledge
a particular woman to be his wife, or a par-
ticular person to be his Mawla (that is,
Hither his emancipator, or his freedman), —
in all these cases the acknowledgment is
valid, as affecting only himself, and not any
other. — In the same manner, also, if a
woman acknowledge her parents, or her
husband, or her Mawla, it is valid, for the
same reason. — A woman's acknowledgment
of a son, however, is not valid, as such
acknowledgment affects her husband, in
whom the parentaga is established : her
acknowledgment of a son, therefore, is not
valid, unless the husband confirm her decla-
ration (aa the right appertains to him), or,
that it be verified by the birth being proven
by the evidence of one midwife, which
suffices in this particular. — (Concerning the
acknowledgments made by women of their
children, there are various distinctions, as set
forth at large in treating of claims )
If confirmed by the parties. — IT is to be
observed that in all these cases the confir-
mation of the party concerning whom the
acknowledgment is made is requi-ite, ex-
cepting in the acknowledgment with respect
to a child, when so young as not to be able
to give any account of himself. — It is also^ to
be observed that the confirmation concerning
parentage is valid, although made after the
death of the acknowledger ; because the
relation of parentage exists after death — In
the same manner, also, the ' confirmation of
a wife after the death of her husband, is
valid ; because the edit is one of the effects
of marriage ; and that exists after the death
of the husband, whence it may be said that
the marriage itself endures in one shape ;
and therefore the confirmation of the wife
after the death of her husband, is valid —So
also (in the opinion of the two disciples) the
confirmation of the husband is valid, after
t» e death of the wife; because inheritance,
which is one of the effects of marriage,
exists after the death of the wife ; whence
the marriage itself endure-*, in one shape ;
for which reason his confirmation is valid.
— According to Haneefa the confirmation of
the husband is not valid, because the mar-
riage expires upon the death of the wife ;
on which account it is not lawful for a hus-
hand to wash the body of his wife after her
death —In regard to the assertion of the
two disciples, that "the marr age endures,
in one shape, after the death of the wife,
because of inheritance," it is not admitted;
for the inheritance," dees not take place until
after death, and was therefore a nonentity
at the time of the acknowledgment. — Now a
confi.mation, in order to be valid, must be
directed to the period of the acknowledg-
ment : and as, that per od, the inherit-
ance did not exist, it is therefore invalid.
The ackno vledgment of a dying person
with respect to an uncle or brother, entitles
them to inherit (if he have no other heirs) ,
but does not establish their parentage. — IF a
person acknowledge an uncle or a brother,
such acknowledgment is not credited, so far
as relat s to the establiphment of the parent-
age, because of its operating upon another
than the acknowledger. If, therefore, the
acknowledger have a known heir, whether
near or remote, the whole of the inheritance
goes to hi , and not to the person in whose
f vour the acknowledgment is made, since
the parentage not having been established
on the part of the acknowledger, no obstacle
can thence arise to the inheritance of a
known heir.— If, however, the acknowledger
have no other heir, the person in whose
favour he makes acknowledgment is m that
case clearly entitled to the inheritance, as
every person has full power over his estate
when he has no heirs ; whence it is that a
person may bequeath the whole of his pro-
perty in legacy, provided he have no heirs*
The person in whose favour the acknow-
ledgment is made is therefore in this
case entitled to the whole of the pro-
440
ACKNOWLEDGMENTS
[Vet. III.
perty. although the parentage;be not
(that is, although he be not admitted to be
the brother or uncle of the acknowledger);
as that would tend to affect another, namely,
the father or grandfather of the acknow-
ledger.*— It is to be observed that the ac-
knowledgment, in this case is not in reality
a legacy ; because, if a man should acknow-
ledge a particular person to be his brother,
and afterwards bequeath the whole of his
property to another, the legatee would in
that case be entitled only to one third of the
whole of the property ; whereas, if the ac-
knowledgment had been in reality a legacy,
the person in whose favour the acknowledg-
ment is made, and the legatee, would in that
case share the whole of the property equally
between them. The acknowledgment, how-
ever, is equivalent to a legacy, on this
consideration, that the person in whose
favour it is made is entitled to the property
merely because of the declaration of the
acknowledger, and not from any other cause
whatever, as in bequest : for which reason,
if a sick man should acknowledge a certain
person to be his brother, and this person
confirm the same ; and the acknowledger
afterwards deny his right of inheritance,
and bequeath the whole of his property to
some other, the legatee is entitled to the
whole of his estate;— or, that, if he should not
bequeath his property to another, the whole
of his estate goes to the public treasury ;
because retraction is in this case valid, for
this reason, that the parentage, which annuls
the validity of the acknowledgment, is not
established.
The acknowledgment of a brother, by the
heir, entitles to inheritance, but does not
establish parenia&e .— IF a person die, and
his son acknowledge another to be his
brother, the parentage of the person in
whose favour the ackgowledgment is made
is not established, but he is entitled to a
share in the inheritance with the acknow-
ledger:— because the acknowledgment in
question involves two consequences ; namely,
the establishment of the parentage, which,
as affecting another, does not take place,—
and the participation of the acknowledgee
in the property, which, being a power he
possesses, as affecting himself only, does
therefore take place. — In the same manner
as where a purchaser acknowledges that the
tlave he has bought had been emancipated
by the seller, in which case the acknowledg-
ment (so far as it relates to the seller) is not
to be credited ; and on this account the
buyer is not entitled to retake the purchase -
money from the seller : — the acknowledg-
ment, however, is credited so far as it relates
to himself, and thefore the slave is free.
* Because, if he were admitted to be
actually the uncle or the brother of the
acknowledger, that would induce, in his
favour, a claim of inheritance from them
•Cote- of acknowledgment r
het'r, of the partial payment of a debt owing
to the person from whom the inheritance
descends. — IF a person, to whom a debt is
owing by another of one hundred dirms,
should die, leaving two sons, and one of
these acknowledge that his father had
received payment of fifty dirms of the said
debt, in that case the acknowledger is not
entitled to any thing ; and the other is
entitled to the remaining fifty dirms ; be-
cause, as the acknowledger has here made
an avowal which operates upon himself, his
brother, and the deceased, it is therefore
valid only so far as it relates to himself, and
not with respect to any other ; for his a -
knowledgment that the deceased had received
fifty dirms of the debt, is equivalent to an
acknowledgment that the deceased owed
fifty dirms, since the receiving payment of
a debt cannot be established but by the
receipt of a thin 4 involving responsibility
—(that is to say, by the receipt of a thing
which induces responsibility on the "receiver,
so as that this responsibility may stand as a
debt against him, and that then a mutual
liquidation may take place, by the opposi-
tion of the debt of one to the debt of the
other).— Upon the other brother, therefore>
contradicting the acknowledgment, the debt
which it in coi sequence established upon
the deceased, is opposed to the share of the
acknowledger, in conformity with the tenets
of our doctors ; for with them it is an
established tenet that if one of the heirs
acknowledge a debt due by the deceased,
and the other heirs contradict the same, the
debt is in that case charged to the share of
the acknowledger.— In short, both brothers
agree in this, that the sum to be received
by the brother who is not the acknowledger
(namely, fifty dirms) appertains equally be-
tween them.— it is to be considered, how-
ever, that if the acknowledger were to take
the half from his brother upon his receiving
payment of these fifty, he would then take
it from the debtor ; and the debtor again,
would take the same from the acknowledger ;
which revolution would be totally useless ;
and this is the true meaning of the Der, or
revolution, as mentioned in the Hedaya.
BOOK XXVI.
OF SOOLH, OR COMPOSITION
Definition of the term.— SOOLH, in the
language of the LAW, signifies a contract
by means of which contention is prevented
or set aside, The essentials (or pillars of
it are declara tion and acceptance ; and the
conditions of it, that the subject of the com-
position (that is, the thing with relation to
which the contract is formed) be property ;
and also, that it be defined, provided there
be a necessity for seision, but not otherwise.^
BOOR XXXVI --CHAP. IJ
COMPOSITION
441
"person claim some degree of right
in a house belonging to another,— and that
other claim some degree of right in a shop
belonging, to this person, and they come to a
compromise, by relinquishing their respec
twe rights in favour of each other, such
compromise or composition is valid, although
they should not have explained the extent
of their right ; since ignorance with respect
to a claim which is to be annulled is not a
cause of contention.
Chap. I.— Introductory.
Chap. II. — Of gratuitous or voluntary
Compositions ; and of the appoint-
ment of Agents for Compositions
Chap. III.— -Of Compositions of Debt.
CHAPTER I.
Composition may be made in three modes—
with acknowledgment, under silence, and
after denial. — COMPOSITION it of three kinds
or description. — I. Composition with AC-
KNOWLEDGMENT (as where the defendant
acknowledges the right of the plaintiff, and
then compounds it for some other thing) :
II. Composition under SILESCE tas where
the defendant neither acknowledges nor de-
nies the claim) : and, HI. Composition after
DENIAL.— All these descriptions of composi-
tion are lawful ; because God says, in the
Koran, "COMPOSITION is LAUDABLE ;" and
this ordinance being absolute, necessarily
includes all these species of it; — and' also,
because the Prophet has said "every com-
position is lawful amongst MUSSULMAN,
excepting such as renders lawful what is
unlawful, or renders unlawful what is law-
ful."— Shafei maintains that compositions
after denial or under silence are unlawful,
because of the above tradition ; for in these
two cases it necessarily follows that what is
unlawful becomes lawful, and what is lawful
becomes unlawful, since the thing given in
composition was, previous to the conclusion
of the contract, unlawful to the giver, and
lawful to the receiver ; but afterwards be-
comes the reverse, Besides, in both these
cases, the defendant gives property for the
removal of contention ; and this is bribery. —
The arguments of our doctors, in support oi
their opinion upon this point, are threefold
FIRST, the texts of the Koran, as above
quoted. SECONDLY, the first part of the
above tradition concerning the Prophet, com-
prehends both the cases in question ; whereas
the latter part applies solely to a composi-
tion which renders lawful something in it-
self originally unlawful, such as wine;— or
which renders unlawful something that in
itself was originally lawful ; as where a
man agrees with a wife, for a certain con-
sideration, not to have carnal connexion
with another of his wives. THIRDLY, com
position after denial, or under silence, is a
composition in consequence of a valid claim
and is therefore effectual, since the claiman
receives the thing given in composition in
lieu of a right of his own which in hi
ipinion was a just one ; and this is lawful,,
nd the defendant, on the other hand, pays
t to remove from himself a contention ;— and
his also is lawful ; because the object of
property is self preservation ; not to giving
>f a bribe, with a view to remove oppression
rom himself, is lawful in the giver. Besides
:hi* cannot be strictly termed a bribe, a* a
bribe is what is taken by the receiver for
the reason assigned by the giver, whereas
lereitii otherwise, for the giver ffives it
in order to prevent contention, and the re-
ceiver takes it because in his opinion it is
iis lust right.
Composition by a concession of property
for property is equivalent to idle, — IN a
composition made after acknowledgment, all
the effects of sale take place, provided it be
ac mpos it ion of property for property ; be-
cause it then corresponds, in its nature, with
sale, which is an exchange of prop rty for
property by mutual consent of the parties ;•—
whence it is that ; if it relate to land, it
admit of the right of Shaffa ; and also,
that the consideration may be returned on
account of a defect ; and that the conditions
of inspection and of option exist with respect
to it
And is rendered invalid by an ignorance
of the thing to be given in composition.— This
species of composition therefore, is rendered
invalid by an ignorance of the consideration
for the composition, as such ignorance may
be a cause of contention, whereas an igno-
rance of the subject of the composition
cannot afford any cause of contention, as
that merely ceases (in consequence of the
co n position), whence there is no occasion
for taking possession of it. — It is, more-
over, a condition, that the defendant be
competent to make good the amount of the
consideration in question.
Composit/on by a concession of usufruct is
equivalent to hire.— IP, however, compo-
sition be a stipulation of usufruct in lieu of
property, then the laws and rules incident
to hire take place with regard to it ; because
the characteristic of hire (namely, an endow-
ment with usufruct in exchange for property)
exists in it.
But the term of usufruct must be spect-
fied.— And as, in contracts, regard is had
to the spirit of the agreement, it is also
requisite that the period of right to the
usufruct be fixed —The composition is also
rendered null by the decease of any of the
parties during that term.* because a compo-
sition of this nature is a species of hire.f
Compositions after denial art equivalent to
an exchange with respect to the plaintiff, but
not with respect to the defend ant.— COMPOSI-
TIONS subsequent to denial are, with respect
to the defendant, equivalent to an atonement
That is during the term of usufruct.
t A contract of hire is rendered null by
the demise of either of the contracting par-
ties during its term.
COMPOSITION
[VOL. HI.
for an oath* — and subsequent to silence,
they stand (with respect to him) merely as a
removal of strife ;— but they do not stand as
a mutual exchange, with respect to him, in
either case.— With respect to the plaintiff,
on the contrary, they are in the nature of a
mutual exchange ; because the plaintiff ac-
cepts the composition in lieu of an article which
in his belief was his right ; and one contract
may lawfully bear different interpretations
with regard to the two parties, in the same
manner as the dissolution pi sale is an an-
nullment of the contract with respect to the
seller and purchaser, but with respect to
others, a new sale. 1 he reason of a compo-
sition after denial standing, with respect to
the defendant, at an atonement for an oath
is obvious ; — and it stands pfter silence as a
mere removal of strife, because silence ad-
mits of two suppositions, namely, acknow-
ledgment or denial, and hence, with respect
to the composition in question being a con-
tract of exchange, there is a doubt: and, in
consequence of this doubt it cannot be es-
tablished as an exchange with respect to the
defendant.
The concession of a house by a composition,
does not induce a right of Shaffa.— If a person
claim a house from another, and that other
either deny the claim, or remain silent, but
afterwards compound the matter with the
claimant for a certain amount, in that case
the right of Shaffa does not operate with re-
spect to that house ; because the defendant
receives it as his original ''right, and not in
virtue of exchange ; since he pives the
amount of the composition to the plaintiff
merely to put an end to the contention.
OBJECTION. — Although the defendant, in
his own belief, receive the house as his ori-
ginal right, and pay the composition to put
an end to the contention, yet the plaintiff
believes that he .receives the composition in
lieu of the house, and therefore (on the
grounds of the belief of the plaintiff) the right
of Shaffa ought to operate.
RCPLY — The belief of the plaintiff has no
effect upon the defendant, since a man is
judged by his own belief, and not by that of
other.
But Shaffa is induced by the act of giving
a house in composition — It is otherwise where
a house is given in composition (as where,
for instance, a person claims some property
from another, and that other, after denying
the ri^ht, or remaining silent, compounds
the claim by giving up a house) ; for in tl is
case the right of Sh.ffa takes place, as the
plain tiff receives the house in exchange for
his property ; and the composition is there-
*Supposing him (as defendant) to have
sworn to the fallacy of the plaintiff's claim ;
in which case, if he afterwards enter into a
composition with the plaintiff, it is evident
that he swore falsely, and consequently,
that atonement ot expiation is due for his
prejury.
fore, with respect to him, a contract of
exchange (for which reason the right of
Shaffa operates upon his own acknowledg-
ment, notwithstanding the defendant contra-
dict him). — It is therefore the same as if he
were to declare that "he has purchased the
house from the defendant/' — and the defen-
dant deny the same ; in 'which case the eight
of bhaffa operates ; and so also in the case in
question.
Case in which part of the thing given in
c (imposition must be restored — If a person
claim something from another, and that other,
having acknowledged the claim, compound it
with the plaintiff for something else ; and it
afterwards appear that the thing claimed
was in part the property of another, — in that
case the defendant is entitled to take back
from the plaintiff a part of the thing given
in composition, proportionate to that part of
the art cle claimed, which afterwards proved
the property of another, because the compo-
sition in this case js, like sale, a contract of
exchange with respect to both parties : and
such is the law in s.u*j, when a pa it of a
thing sold proves the property of another.
// the composition be after denial or silence
and the thing compounded for ptove the right
cf anothe<t the consideration must be returned
and the plaintiff must lay hi.s claim against him
who has the right. — If a person claim a thing
from another, and that otKer either deny it
or remain silent, and then compound with
the phi nt iff from some other article, and it
afterwards appear that the thing claimed is
the right of another and not of the plaintiff
in that case the plaintiff must prefer his
demand against the person who claims the
right, and return to the defendant whatever
he may have received from him in composi-
tion ; because the defendant gave his pro-
perty merely for the purpose of removing
contention ; but when, afterwards, it appear
that the thing claimed is the property of
another, it becomes evident that he was not
liable to a contention with the plaintiff.
Hence he is entitled to take back the article
given in composition, as a condition on
which he give it (namely, a right to detain
in his possession the subject of the claim; is
rendered void.
And the same proportionally, where any
part of it proves the property of another* — IF
on the other hand, a part, only, of the thing
claimed piove the rig'it of another, the
plaintiff must in that case return to the de-
fendant a proportionate part of the thing
given in composition and make a demand
for the same upon the person possessing the
right ; because the intent of the defendant
does not comprehend that proportion.
If the thing given in composition after ac-
knowledgment, prove the right of another t it
must be restored, and the plaintiff is entitled
to an equivalent from the defendant. — IF the
thing given in composition prove the right
of another, the plaintiff is in that case enti-
tled to receive from the defendant the whole
amount of the composition, provided it be
BOOK XXVI.— CHAP I]
COMPOSITION
443
after acknowledgment, as this species of
composition is equivalent to sale (as was
before explained).— If also, the right of
another appear tj part of the composition,
the plaintiff is en tided to a proportionate
part of it, for the same reason.
// this happen in composition after silence \
or denial, the plaintiff must claim from the
defendant the article in dispute, — If in a
case of composition after silence or denial, it
appear that the whole or a part of the thing
given in composition is the property of an-
other, the plaintiff must prefer a claim against
the defendant for the thing in dispute be-
tween them, either wholly, or in part, as the
case may be. — It is otherwise in case of
sale after denial ; as where, for instance, a
person lays claim to a house, and the person
upon whom the claim is made denies his
right, but afterwards compounds the matter
by means of a slave, using, however, the
word "sold" instead of ' 'compounded," a
if he should say, "I have sold this slave for
the said house ;" for in that case, if the
house afterward* prove to be the property
of another, the plaintiff, instead of claim-
ing, is entitled atcually to take the house
from the defendant ; because the defen-
dant, in selling the slave for the house, does
virtually acknowledge the house to be
the property of the plaintiff :— contrary to a
case of composition, as compositions are fre-
quently made merely to remove contention
— It is to be observed that, in case the t^ing
given in composition be either lost or de-
stroyed in the hands of the defendant, pre
vious to the delivery of it, the law is the
same as where it proves the right of another;
— that is, if the composition follow acknow-
ledgment, the plaintiff is entitled to take the
article claimed ; or, if it follow denial or
silgpce, he must prefer a claim for it against
the defendant.
A composition for an undefined part of a
thing is not affected by the right of another
afterwards appearing to a part of that thing.
— If a person claim a right in a house, with-
out explaining the extent of it (such as a
third, a forth, or the like), and the de-
fendant under this state of uucertainly, give
him something in composition for his claim,
and the right of another afterwards appear
to a part of the house, the plaintiff is not in
that case obliged to return to the defendant
any part of the thing received in composi-
tion, since it is possible that the right may
relate to some other part of the h^use, and
not to that part which the plaintiff had
claimed. It is different when the whole of
the house proves to be the property of an-
other ; for in that case the whole of the thing
given in composition must be returned to
the defendant ; since it would otherwise
necessarily follow that the defendant had
received nothing in exchange for the thing
he gave in composition ; and this is unlawful;
as has been already explained under the head
of sale.
Composition in const deration of a part of
the subject is invalid.— It a person claim a
house, and the defendant compound the claim
for a part of the house, composition is
unlawful, because what the plaintiff receives
is already his actual right, and the rest of
his claim remains unsatisfied. There ar«
two devices, however by which this conv
position may be rendered lawful.— The one
is, by the plaintiff adding a dirm to tilt share
of the house ; i\\ which case, the d*rm is con-
sidered as an equivalent for the remaining
part of the claim :— the second is, by the
p'ainuff exempting the defendant from th<*
re miming part of the claim.
Sectun.
Disputes concerning property may be com-
pounded — COMPOSITIONS are lawful in claims
of property ; for a composition (as was before
explained; being in the nature of a sale, it
follows that whatever may be lawfully sola
may also be lawfully compounded.
\nd also claims of usu/rut,— COMPOSI-
TIONS are likewise lawful in claims of
usufruct; as for instance, where a person
prefers a claim, against the heirs of a per-
son deceased, to the usufruct of, or right to
dwell in a particular house, in virtue of
the bequest of the deceased ; in which case,
if the heirs, having either denied or acknow-
ledged the claim, shoujd compound it with
the plaintiff for something else, sach com-
position is valid. The reason of this is that
usufruct is considered a* a prorerty, in a
contract of hire, and so aho in a case of com-
position—for it is a general rule, to con-
sider the composition as partaking of the
nature of that contract to which it bears the
nearest re emblance, in order to render it
valid.— Thus, if the composition be of pro-
perty for property, it is conbidered as a sale,
because of its near resemblance to that con-
tract—If on the other hind, it relate to
usufruct, it is considered as a species of hire,
because of its resemblance to it.
Compost tions aie lawful in homicide —
COMPOSITIONS are lawful in case either of
wilful or erroneous bloodshed.— They are
lawful in the former instance, because GOD
has said, "!F A PORTION OF THE PROPERTY
OF THE MURDERER, BEING A BELIEVER, BE
OFFFRED, BY WAY OF COM POSITION, TO THE
REPRESENTATIVE OF THE MURDERER, LET
HIM ACCEPT THE sAME,"-which passage Ibn
Abbas reports to have been revealed upon
the subject of compositions for wilful blood-
shed.—It is to observed that composition
for wilful bloodshed resembles marriage, be-
cause in both cases property is given without
receiving property in return ; accordingly,
whatever is capable of constituting a speceific
dower, is also capable of being given in com-
position for wilful bloodshed.-Thereisthif
difference, however, between marriage and
the composition in question, that whenever
the recital of the thing to be given in com-
position is invalid (as where an animal is
mentioned indefinitely, or cloths are recited
without a specification of them), a Deyit o*
COMPOSITION
fine of blood must be paid ;— because such is
the rule in case x>f bloodshed ; and an in-
validity in the nomination does not prevent
the remission of retaliation, in the same
manner as it does not prevent the validity
of marriage.
But if acceded to for an unlawful article,
not/iing is due — IF, however, a composition
of wire or pork be stipulated for wilful blood-
shed, nothing whatever is due ; because
neither of these articles are valuable pro-
perty ; it is therefore understood t at the
avenger of blood, in agreeing to receive a
composition which is not property, has, in
effect, remitted the retaliation ; and as, in a re-
mission of the retaliation, no property is due,
so neither is it in the case in question. — In
marriage, on the contrary, a Mihr-Vfisl (or
proper dower) is due in either case, (that is, in
case of the invalidity of the recital, — or, where
the dower is stipulated to be paid in wine
or pork) ; because the dower is one of the
essential requisites of marriage, and is there-
fore due in LAW, although no recital should
have been made of it. It is to be observed
that as the crime expressed in this case of
composition is absolute, it relates both to the
members of the body, and to the body itself
that is to say, the life. — It is also proper to
observe that, although compositions for wil-
ful bloodshed be lawful, as above related, yet
it is otherwise with respect to compositions
of property for the right of Shaffa (by a
person receiving property from a purchaser,
in composit.on for his right of Shaffa, which
is invalid, because the proprietor of the right
of Shaffa has no absolute property from it,
but merely a right to become proprietor if he
please until, therefore, he become the pro-
prietor, he has no right to compound for it.
—Retaliation, on the other hand, means a
right of property in the subject, with respect
to the action : in other words, the heir or
representative is proprietor of the subject so
far as relates to the action, inasmuch as he
has a right to take retaliation, and may con-
sequently, if he choo e, receive a composi-
tion for not taking of it • in opposition to the
case of Shaffa. — Now, since a composition of
property for the right of Shaffa is invalid, it
follows that nothing is on that account due
from the purchaser, and that he right of
Shaffa is lost, in the same manner as in a
case of non- opposition or silence. — Bail for
the person is also like the right of Shaffa,
and therefore nothing is due in case of a com-
position of property for it —With respect,
however, to the annulment of the bail, in
such a case, there are two traditions, both of
which have been already recited in their
proper places.— -Compositions are alao lawful
in the latter case (namely, erroneous blood-
shed), because they in this instance relate to
property, and therefore resemble sales. Still,
however, they are not lawful when they
exceed the amount of the fine of blood ; be-
cause the rate of that as having been fixed
by the LAW, cannot beset aside : anything,
therefore, beyond the fine of blood, must be
rejected. — It is otherwise in retaliation, for
there the composition may exceed the fine of
blood, as retaliation is not property, and
therefore cannot be converted into it but by
a special contract. — What is here advanced
proceeds upon the supposition that the com-
position consists of one of the three species
of Deyits namely, dirms, deenars, or camels.
—If, however, it consist of any other species
of property, it is lawful, because it is in that
case an exchange for the Deyit, or ordained
fine. But yet it is requisite that the delivery
be made upon the spot where the contract is
conclu ed, because it must otherwise follow
that one debt (namely, the Deyit) remains
opposed to another debt (namely, the com-
position), which ts declared, in the sacred
writings, to be illegal. If the Kazee should
pass a decree directing the murderer to pay
the Depit is one of the three modes to the
avenger of blood ; anJ he [the murderer]
enter into a composition with him [the
avenger] for another species of property, in
a degree exceeding the Deyit, such composi-
tion is lawful, provided it be from hand to
hand ; because, after the decree of the Kazee,
the right of the avenger of blood to the
amount decreed by the Kazee becomes fixed
and determined ; and his comP°sit^on °f l*»
in that case, js merely an excha^-T11 is
different where the parties themselves' ln the
beginning, enter irto a composition for on*
of the threc kinds, exceeding the ?mount.ot
the Deyit; because the consent of the par ies
to one of the three kinds is equivalent to tne
decree of the Kazee in respect of fixing it—
(that is, in the satne manner as it it fixed by
the decree of the Kazee, so also is it fixed by
their consent) ; and as the Kazee is not em-
powered to pass a decree exceeding the
amount of tne Deyit. ?o neither are toy
permitted to fix it at a superior rate. Hence
it is not lawful to exceed the rate of a thing
already fixed by the sacred writings.
There is no composition for punishment. —
COMPOSITION for claim of Hidd, or stated
punishment, is not lawful — Thus if a person
should apprehend another in the act pf
whoredom, or of s'ealing the goods of another
or of drinking wine, or whilst in a state of
intoxication ; and, intending to carry the
culprit before the Kazee, should notwith-
standing accept something for suffering him
to escape such composition is invalid ; be-
cause punishment is a right of GOD, and it
is not lawful to accept a composition for the
right of another.
Claim of parentage. — For the same reason,
also, it is not lawful to composition with a
woman for a claim of parentage. For in-
stance, a divorced woman, having brought
forth a child, says to the divorcer, "this is
your child," and he denies the same, but
compounds with t'le woman for withdrawing
her claim ; which composition is invalid,
because the claim of parentage was not her
right, but that of the child ; and the accep-
tance of a consideration for the right of
another is not valid.
Rook XXY1
COMPOSITION
445
Or, for sufferance of .a building on the
"Mghway.— IN the same manner if a person
erec t aba thing- house, or a place for sitting
in, on the high road, and another having
required him to put it down, he compound
with him to withdraw his claim, such coin-
position is invalid, bee u*e, the high road
being the right of the community, no in-
dividual is singly entitled to compound for
it. — It is to be observed that the .punishment
mentioned on this occasion comprehends
punishment for slander, because in such
punishment the right of GOD is predomi-
nant.
A claim of marriage may be compounded,
— whether the claim proceed from a man. —
IF a person claim marriage with a woman,
and she deny the same but compound with
the man for his claim, the composition in
that case is valid, because there is a possi-
bility of reconciling it to the LAW, by sup-
posing i hat the man conceives the contract
of composition to be in the nature oi a
Khoola; and, on the other hand, (hat the
woman pays the money to remove strife —
Lawyers, however, have asserted that, in
the s'ght of GOD, it is not lawful for the
person, in this case, to take the composition,
if his claim be unfounded.
Or a woman. — If a woman claim marriage
with a man, it is lawful for him to com-
pound the claim with her. The author of
the Hedaya remarks, upon this, that
although the law be thus stated in several
copies of the compendium.* yet is ether
copies such composition is declared to be
illegal —The legality of it is established by
supposing that the thing given in composi-
tion is an increase of her dower; and that
he afterwards sells her a divorce for the
amount of her original dower f so that the
increase, or the amount of the composition,
remains binding upon him. The reason of its
illegality is, that the man haying given
something by way of composition to the
woman, to induce her to retract her claim,
it follows that this t retraction must either
be considered as equivalent to a separation
between them, or as not equivalent to a
separation: now, if it be equivalent to a
separation, it is invalid, because no property
is given for a separation, since it operates of
itself upon the parties (as, for instance,
where a woman admits the son of her hus-
band to carnal connexion, in which case the
LA wen joins a separation between them):—
if however, on the other hand, the retrac-
tation from the claim be not considered as
equivalent to a separation, then the case
remains as before; and the compos tion is
consequently invalid, as not being opposed
to any advantage in exqhange,
A claim of bondage may be compounded. —
• The Mookhtassir; a compendium of the
commentary of Kadooree.
f See Khoola.
j IF a person claim another as his slave, and
that other compound with h m for his claim,
by giving him some specific property, such
composition is valid, as being, with respect
to the plaintiff, an emancipation in exchange
for property : because in his belief the defen-
dant gives the composition in exchange for
his freedom; and therefore considered in
the light of a Mokatib — It is for this reason,
also that the composition in question is
valid, if made in consideration of an animal
due, ana to be delivered at a fined future
period; because it would not be valid if it
were considered as an exchange oi property
for property instead of an emancipation for
property: tor an animal cannot exist as a
debt in exchange for property, as has been
explained in treating of the Sillim sale of
animals: but it may exist as a debt for some-
thing else than property, as in the case of
marnagirora fine oi blood— It is therefore
requisite that the composition in question be
considered as an emancipation, and not as an
exchange -—With respect to the defendant,
the cv imposition, in this case, is merely a
rt'iiiuVdl of contention, s nee he believes him-
self to be originally free.
But it leave no right of Willa in the
claimant —It is to be observed that in this
case no right of Willa over the defendant
rests with the plaintiff, because of the denial
of the former —If however, the plaintiff
prove by witnesses that the defendant wat
his slave, such evidence is admitted, and the
right of Willa then rests with him.
A privileged slave cannot compound for
offtncescvn.rr.itted by himself; but he rray
for offmce committed by his slave. — IF a
Mazoon: or privileged slave, wilfully kill a
person he is not of himself entitled to com-
pound for the number: but if his slave should
commit murder, he may then lawfully com-
pound for it. The distinction between these
two cases is that the person of a privileged
slave not being a subject of traffic, he is not
entitled to dispose of it in any manner (such
as. for instance, to sell himself), and in the
same manner he is not entitled to redeem
his person by means of the property of his
master, being considered with respect to his
person as a stranger. His slave, on the
contrary, is a subject of traffic, whence he is
at liberty to sell, or otherwise to dispose of
him, and consequently may a'so redeem him
The reason; of this is that the slave, on com-
mitting the crime, ceases to be his property;
whence the composition resembles a purchase
of him; and this it is lawful for a privileged
slave to make.
Case of composition for a property usurped',
and which perishes in the usurper s hands,
IF a person usurp cloth from a lew, or
which the value was less than a hundred
dirm*. and having lost or destroyed the
same, compound the matter with the Jew
by agreeing to pay him a hundred dirmi
previous to any judicial .decree .upon tne
subject, in that case the composition is law-
ful, according to Haneefa. The two disciple*
446
COMPOSITION
(VoL. IIL
maintain .that the composition, 4rt the ca«e,
is not lawful in the decree in which it ex-
ceeds the appraised value of the cloth:
be cause nothing was due from the usurper
but the value; and the value of any article
is to be known only by appraisement; any
thing beyond that must therefore be con-
sidered as usury. — It is otherwise, however,
if the composition for the cloth be made in
articles of furniture, or so forth, ex ceding
in value the article usurped; for su^.h com
position is valid, because the difference of
the value not being obvious, from the articles
being of a different genus, no usury can be
inferred It is otherwise also, if the diffe-
rence of value be such as may come within
the estimation of some of the appraisers,
because the observance of an excessive degree
of caution is impracticable. The reasoning
of Haneefa, in support of his opinion, is that
the right of the proprietor of an usurped
article continues in it after its destruction,
until his right to an equivalent be estab-
lished; as is evident from this circumstance,
that if an usurped slave should die, and the
master refuse to accept an equivalent, he
must in that case defray the expences of his
burial. Now from this it appears either that
the right of the proprietor of an usurped
article remains in it after its destruction, —
or, that the has a right, if he choose, to a
similar, both in appearance and in reality,*
because reparation for a transgression must
be made in a sinvlar, — But his right is not
transferred to the value until such time as
the Kazee pass a decree to that effect: any
agreement, therefore, exceeding the value,
which the parties themselves may conclude
previous to such decree, being merely a com-
pensation for the article destroyed, or for
one similar to it in appearance and reality,
cannot be considered as usurious — It is
otherwise if such agreement be made after
the decree of the Kazee; for, in that case,
according to all our doctors, the composition
is not valid, as far as it exceeds the value;
because, in this instance, the right of the
propietpr to the value has become fixed and
determined by the decree of the Kazee, and
any thing beyond it is therefore usurious.
Case of composition for a share in a part-
nership slave. — If a man who is rich emanci-
pate a stave held equally in partnership
between himself and another, and compound
with that other for a sum exceeding the
value of his half such composition is invalid,
according to all our doctors:— according to
the two disciples, because (as they hold)
nothing is due from the emancipator beyond
half the value, which is to be ascertained by
appraisement; whence any degree beyond
that is usurious:— and, according to Haneefa,
because the value, in emancipation, is decreed
by the LAW; now the rate hxed by the LAW
is not short of the rate fixed by the Kaz-e;
and as in a case where the Kazee passes a
* Independent of and judicial decree.
decree -for the- valtie, *a~ cumposi ttorr "fbr* awy
thing beyond the value is dull; it is in the
present instance null a fortiori.— -It is other-
wise in the example concerning the cloth, as
before recited, because the value of that if
not decreed, by the LAW.— It is to be observed
that if, in the case in question, a composition
exceeding the value of half the slave be
made in specific goods or effects, it is valid,
because the excess in the value is not obvious
where the articles are of a different genus;
and hence no usury can ^e inferred.
CHAPTER II
Or GRATUITOUS OR VOLUNTARY COMPOSI-
TION; AND OF THE APPOINTMENT OF
' AGENTS FOR COMPOSITION.
An agent for composition in a case of
bloodshed or debt is not responsible for the
consideration, unless he expressly agree to be
so. — IF a person appoint another his agent
for composition, and the agent accordingly
enter into a composition on his behalf, he
[the agent] is not respjnsible for the thing to
be given in composition, unless, in setting
the contract, he stipul te it is as a condition
t'iat '.'he himself shall be answerable for
it." — This is where the composition is on
account of wilful bloc shed, or of some
claim in the nature of debt, in either of
which case the composition is a mere
annulment ; and as the agent, in either case,
is merely a messenger, he is therefore sub-
ject to no responsibility, any more than an
agent for marriage; — unless he himself
engage in the responsibility, — in which case
he becomes answerable, because of his con-
tract of security, but not from his contract
of composition.
But he is responsible where the composition
is of property /,r property.— WHERE, how-
ever, the composition is of property for pro-
perty, it is equivalent to a sale, and the
rights of it appertain to the agent — In such
a case therefores the claim for the property
(that, is: for the article to be given in com-
position) lies against the agent, not against
the constituent.
Fazoolee composition are of four descrip-
tions.— FAZOOLEE compositions (that is, such
as are concluded by a stranger, in behalf of
the defendant, without his desire) are of four
kinds.
I. Of a debt by property (for which the
compounder is responsible). — 1 WHERK a
person compounds for a claim of debt by pro-
perty, and makes himself responsible for the
property:— in which case the composition
is complete, because the defendant acquires
nothing from it, but is merely exempted from
a debt, and in this respect a stranger and the
party that is the defendant are considered as
the same. — It is also proper to remark fur-
ther, that in the same manner as the condi-
tion of responsibility for the thing to be
BOOK XXVf
-447
given in composition is lawful to the defen
dant, to also is it lawful to the stranger : '•
stranger, therefore, s capable of standing
a* the principal in composition, and in the
obligation of the property, when he makes
himself responsible for the thing to be given
in composition ; . in the same manner as a
Fazoolee who concludes a Khoola in behalf
of a wife. — In other words, if a person pro-
pose a Khoola to his wife, and another,
without the desire of the wife, conclude the
contract of Khoola with the husband on her
behalf, making himself responsible for the
consideration of Khoola, it is valid, and he
is responsible for the consideration ; — and so
also in the case in question, the Fazoolee is
responsible for the thing to be given in com-
position.— He moreover, stands, with respect
to the defendant, as one, who acts gratui-
tously, in the same manner as a person who
voluntarily pays the debts of another, in as
much as he exempts the defendant from
responsibility ; he therefore is not entitled
to any return from the defendant : but it is
otherwise where the com pounder acts by the
desire of the defendant, for in that case he
is not a voluntary agent. The cpmpounder
in question, moreover, is not entitled to any
part of the debt ; but that is cancelled with
respect to the defendant ; for the principle,
with respect to the legality of the com-
position, in this case, is that the plaintiff
annuls the operation of the debt upon the
defendant, and not that he renders the com-
pounder proprietor of it and this, whether
the defendant ackno-i ledge the debt, or deny
it ; — in a case of denial, evidently, because
the defendant does not in his own opinion
owe any thing, and the opinion or belief of
the plaintiff cannot operate upon him ; — and
in a case of acknowledgment, also, because
the property of, or right to the debt, cannot
be conveyed to another but by the person
who is immediately indebted : it is therefore
impossible, in this instance, to render the
composition valid on any other principle
than that of the annulnunt of the debt. — It
is otherwise where the plaintiff claims some
specific article in the possession of the de-
fendant, who acknowledges the same, and
another person, unauthorized, gives him
something as a composition for his claim —
because in this case the unauthorized person.
in compounding for his claim with the
plaintiff, does virtually purchase the article
claimed ; and his purchase of a thing from
the proprietor is lawful, although it be not
in his possession.
//. Of any thing for a specific property
(which must be immediately delivered by the
compounder t) — II. Where the com pounder
•ays. "I have compounded for these thou-
sand dirms of my own/' or "this slave
of my own ;M in which case the composition
is valid ; and it is incumbent on the com-
pounder to deliver over the article stipulated
to the plaintiff ; b cause. In referring the
composition to his own property, he renders
obligatory upon himself the delivery of it ;
on which account the composition so made
is valid.
///. Of any thing for unspecified pro-
perty (but which the compounds delivers), —
III Where the compounder says, ' I have
compounded for a thousand dirms," and im-
mediately delivers a • thousand dirms to the
plaintiff, in which case the composition is
v*lid ; for on the delivery of the thousand
djrm* the plaintiff obtains his object, and
the contract ot composition is thereby com*
pletelv fvi'Hlled.
IV, Of any th ng for unspecified property
(and which the compounder does not deliver),
—IV. Where the compounder says, "C have
compounded for a thousand dirms," but
docs not deliver them ; in which case the
composition remains suspended on the con-
sent uf the defendant. If he confirm it, he
becomes responsible for the sum stipulated ; —
or, it he withhold his assent, the composition
is annulled,— The reason of this is that in
composition of this nature, the defendant
is a principal, because of their operating to
free him from contention ; but the corns
pounder is also a principal because of his
charging himself with the consideration of
composition, either expressly (as where he sayl,
"I am responsible for the thousand dirms")
or directly (as where he compounds for
one thousand dirms, and delivers them). —
Now, if he should not so have charged him-
sMf (as the present example supposes), the
part of the defendant only ;* and the va-
lidity of it consequently rests upon his
concurrence
Case of a Fazoolee compounding Jor a
specific article, without referring the same to
his property, — THE compiler of the Hedaya
remarks that a fifth kind of composition
may be added to the preceding ; as, for
instance, where a Fazoolee Rays, "I ^have
compounded for this thousand dirms," or
"for this slave," without referring these to
his own property ; — which sort of composi-
tion is valid, because, in specifying the
thing to be delivered to the plaintiff, the
compounder does, as it were, establish it as
a condition that the said thing shall become
the right of the plaintiff. If, however the
slave should afterwards prove to be the
property of another; — or, if it should become
known that he was free, or a Mokatib or
Modabbir,— or, if the plaintiff should return
him, on account of a defect, to the com-
pounder in none of these cases is the
plaintiff entitled to take anything from the
compounder, since he engaged for nothing
further than the delivery of a specific article ;
if, therefore, that article remain safe for the
plaintiff, the contract is valid ; if otherwise
he is not entitled to take any thing from
the compounder, but must prefer his claim
against the defendant. — It is otherwise
"That is to say,
in it
he alone is concerned
448
COMPOSITION
[Vet. III.
where the compoundci stipulates dirras, and
makes himself responsible for the same, and
they afterwards prove the right of another,
or of bad quality, and the plaintiff returns
them ; for in that case the plaintiff is en-
titled to take an equal number of good
dirms from the compounder, because of his
having made himself a principal with respect
to security ; and, accordingly, if the com-
pounder refuse to comply, he must be com-
pelled to make the delivery.
CHAPTER III.
OP COMPOSITIONS OF DEBT
A debt owing in consequence of any con
tract ctncludcd upon credit may be com-
pounded by payment of a part. — IP the
thing to be given in composition be of the
same nature with the debt which is to be
compounded for, and which is owing to the
plaintiff under an Akid Moodainat, or con-
tract concluded upon credit,* the composi-
tion is not in that case construed to be an
exchange, but the plaintiff is considered as
taking a part of his right, and annulling
or relinquishing the remainder. — An Akid
Moodainat, or contract concluded upon credit,
is where a person purchases the goods of
another, for a thousand good dirms (for in-
stance), and then the parties separate, without
the seller receiving the price, of a time of pay-
ment being agreed upon : — in which case, if
the purchaser should compound the said
thousand for five hundred good dirms (or
five hundred bad dirms), and the seller agree
to the same, such composition is valid; and
it is thus construed, that he [the seller]
agrees to accept a part of his right, and
to relinquish the remainder ;— not that he
accepts the five hundred in exchange for the
thousand. — The reason of this is, that it is
necessary, as far as possible, to give validity
to the acts of rational persons ; and this
may be done, in the former ins'ance, by the
claimant relinquishing a part of the dirms
to which he is entitled, — or, in the latter
instance, by conceding that and the goodness
of them. — Such also is the rule where the
debt has been incurred, on the part of the
defendant, by a usurpation or destruction of
property.
*The commentators define Moodainat to
signify "the act of selling to a person upon
credit ;" or "the act of granting credit." —
The composers of the Persian version of the
Hedaya have evidently mistaken the sense
of the text in the beginning of this passage.
The Arabic simply states it "in ail com-
positions for a thing claimed under a con-
tract upon credit, the transaction is not
considered as an exchange, but as an accept*
ance of a part of the right, and a relinquish-
ment of the remainder.
And tl*e"&ime of -similar * compositions of
debtt owing in consequence of arty act which
subjects to resppnsiblity. — THS restriction to
debts owing "in consequecce of a contract
concluded upon rredit" (as here set forth),
is for this reason, that it is originally re-
quisite that debt be incurred in consequence
of a contract agreeable to LAW.
Debt may be compounded by a f or bear -
ancet for the same sum. — IF, in the case in
question, the composition consist of a thou-
sand dirms payable at a di tant time, for a
thousand dirms immediately payable, it is
valid ; because the construction then given
to it is that the plaintiff agreed to postpone
his claim, - not that he entered into an ex-
change ; as a future period, is not lawful.
But not if the postponed payment be stipu-
lated in money of a different denomination.
— IF, on the other' hand, the thousand dirms
be compounded for a proportionable number
of deenars, payable after the expiration of a
month (for instance, it is unlawful ; because
it is impossible to consider it merely as a
delay of/ the claim ; since the claim related
to dirmsj not to deenars ; nor is it possible
to construe it into a sale, because a sale of
dirms, for deenars payable at a future period,
is unlawful. The composition, therefore, in
this case, is invalid.
A postponed debt cannot be compounded
by thp immediate payment of a part. — IF a
person have a debt of one thousand dirms,
payable at a future period, owing to him by
another in consequence of a contract upon
credit, and compounded the same for five hun-
dred dirms payable immediately, such com-
position is invalid ; because ready-, money
is better than future payment ; and ready
money not being his right, the composition
therefore takes place in a thing which is not
his right, whence it is impossible to consider
the composition as a dereliction of part of
the claim: — it must therefore be necessarily
considered as an exchange (in this way,
that the debtor gives up his right, namely,
the delay of payment, in return for the five
hundred remitted) :—those five hundred,
therefore, are in exchange for the forbear-
ance ; and the acceptance of any thing in
consideration of forbearance is not lawful.
A debt of bad money cannot be compounded
by the payment of a smaller sum in good
money, — IF a person have a debt owing to
him by another, in consequence of a con-
tract upon credit, of a thousand adulterated
dirms; and compound it for five hundred
pure dirms, it is not valid ; because pure
dirms are not the right of the seller, as
those exceed his right with respect to their
quality, and it accordingly cannot be con-
sidered as a concession : it must therefore be
construed into an exchange of one thousand
for five hundred, superior with respect to
quality. — and that is usurious, as quality is
not regarded in transactions of exchage.
But a debt of good money may be com*
pounded by bad, whether the sum be smaller
BOOK XXI -CHAP. III.]
COMPOSITION
440
than, or equal to the demand— IT is other-
wscwhcrea person compounds a debt of a
thousand good dirms for five hundred bad
dirms, because that is a concession with
respect both to number and quality. It is
otherwise, also, where a person compounds
a debt due to him of a thousand bad diims
for a thousand good ones ; because this is an
exchange of like for like ; an 1 in that no
regard is paid to quality —It is, however,
a condition, in this case, that the plaintiff
take possession of the thing given in com-
position upon the spot, as this a Sirf sa'e
A debt in money of two denominations
may be compounds by a smaller sum of
either denomination —If a person have a
debt of a thousand dirms and a hundred
deenars owing to him by another, in con-
sequence of a contract upon credit, and
compound the same for a hundred dirms,
ready money, or payable at the expiration
of a month (for instance), such composition
is lawful, as it is possible, in this instance,
to give validity to the contract ofcompo-
8itl0nL V stlPP°sing that the creditor remits
the whole of the debt owing to him except
one hundred dirms. payable immediately, or
(as in the second case) within a month. It
therefore is not to be regarded in the light
of an exchange ; for if it were so considered,
the contract would not be valid, as it would
be usurious. In compositions moreover, a
concession is always understood ; and as. in
the case in question, concession is the pre-
valent idea, the matter must be regarded as
a concession rather than as an exchange.
Case of proposal from a creditor to grant
ms debtor a complete discharge, on condition
of his paying one-half of the debt within a
limited tim*.— If a person, having a debt
due to him of a thousand dirms, payable at
^future period, should say to the debtor,
pay me five hundred dirms tomorrow,
upon this [condition], that you are exempted
from the remainder of the debt;" and the
debtor act accordingly, he is then exempted
from the remainder, If, however, in such
case, the debtor should not pay the five
hundred dirms on the morrow, he remains
responsible, according to Haneefa and Mo-
hammed, for the thousand dirms. Aboo
Yoosaf maintains that five hundred dirms
arc immediately remitted, and that the
claim to them cannot afterwards be revived :
?r (In his °Pinion) the exemption here is
absolute ;* because the plaintiff has estab-
lished the payment of five hundred dirms
as an exchange for the exemption of five
hundred dirms ; but the payment of these
five hundred dirms cannot be considered as
an exchange for the remainder, payment
of which still continues incumbent upon the
debtor and is not at all suspended upon the
exemption. To make it an exchange, there-
fore is nugatory ;— consequently there re-
i8' not suspended upon
condition of payment on the morrow.
the
mains only the obsolute exemption ; and
hence the whole of the original debt cannot
revive from a failure of the payment on the
morrow any rmre than if the creditor had
said. "I have exempted you from five
hundred dirms out of one thousand dirms
upon this [condition], that you pay me, to-
morrow, live hundred dirms ;" in which case
the exemption is absolute, and so also in the
c;.se in question. — The reasoning of Haneefa
and Mohammed is that the exemption, in
this case, is not absolute, but conditional.
Upon failure of the condition, therefore,
the exemption docs not ake place, for two
reasons. FIRST, because the creditor hegins
his speech with requiring the payment to-
morrow, and this may be considered in itself
as an oSject, since it is possible that the
creditor is afraid of losing the whole of the
mon:y in the event of the debtor's becoming
poor, which induces him to use expedition ;
and also, because he perhaps wishes to get
the money, in order that he may acquire
profit from it in trade. The expression*
moreover, bears the construction of being
[conditional], and is therefore to be taken in
that sense, in order to give validity to the
contract.— SECONDLY, such conditions are
common in compositions ; and an exemption
may be restricted to a condition, although it
be not suspended upon it. Thus a transfer
of debt (for instance) is restricted to the
condition of safety ; in so much lhat if the
person who had agreed to accept the transfer*
should die insolvent, the debt reverts upon
the person transferring it ; the transfer,
therefore is restricted, in this instance [to
the condition of safety] and so also in the
case in question. With respect to the
reasoning of Aboo Yoosaf, an answer will
soon b? given to it.
Which admits of three different state-
ments. /. Where the proposal has no con-
dition annexed, that in failure of payment. II
Where it is annexed that, in failure of
payment the proposal shall be void. III.
Where the discharge is primarily stated. —
THE compiler of the Hadaya remarks that
this case admits of three separate state-
ments.— I. That which has been already
explained. — II. Where the creditor says, "I
have compounded with you the thousand
dirms for five hundred dirms ; which you
must pay me to morrow, and then you shall
he exempted from the remainder ; provided,
however, that if you do not pay them to
morrow, the thousand dirms shall remain
due by you a« before ;" — in which case
according to all our doctors, if the payment,
be made on the next day, the exemption
holds good ; but if otherwise, it is void. —
III. Where the creditor says. ''I have
exempted you from the payment of five
hundred dirms out of a thousand, on this
•That is, to take upon him the respon-
sibility for the debt (in the manner of an
acceptor or endorser of a bill of exchange).
450
COMPOSITION
[VOL. III.
[condition] that you give me five hundred
dirms to-morrow ;" — in which case the
debtor is exempted from the payment of
the five hundred dirms ; and this, whether
he pay the five hundred on the ensuing day
or not, because the exemption is here
primarily stated.*
An acknowledgment may be stipulated for
a composition.— If a person say to another,
"I will not acknowledge your right of pro-
perty until you first fix a distant time for
the delivery, and promise me an indulgence
in the payment,'1 — or, "until you first remit
to me the whole (or a part) of the property,"
—and the person so addressed act accord-
ingly, 'his thus fixing a time, or remitting a
part or the whole of the property is lawful,
because he does this of his own accord, and
not by compulsion.
But if the stipulation be publicly pro-
posed the composition is of no effett. — THIS
is where the acknowledger addresses the
other party, as above, secretlv and in a
covert manner.— Where, however he ad-
dresses him publicly, he becomes liable nor
the whole of the subject of acknowledgment
upon the instant.
Section.
Of Participated Debt.
One of two partners compounding his
share of a debt due to them jointly, the other
partner may either take his proportion of
ihe composition, or look to the debt for his
share. — IF there be a debt owing to two
men, jointly, from a third, and one of the
two compound with the debtor his share of
the debt for a piece of cloth, the fellow-
creditor has it in his choice either to demand
the other half of the debt, which is his due,
from the debtor, or to take the half of the
cloth from the compounder ; unless, how-
ever, he [the compounder] pay him a quarter
of the whole debt; for, in that case, he is
not entitled to take the half of the cloth. —
in short, in all cases of the nature here
exemplified, it is a rule that whatever, in a
partnership debt, one of the partners re-
ceives a part of it, the other partner is
entitled to an equal share in the part so
seized ; because although debt become a sort
of 'ncrease from seisin (since debt is not
considered as substantial property until it
be taken possession of), still this increase
has reference to the original right ; and as
the original right was equally divided, so
also is the increase ; in the same manner as
offspring or fruit. The partner, therefore,
has a right of participation in the part which
is taken possession of. — Still, however, pre-
vious to the operation of such right, the part
•Two other statements, together with a
long discussion, are omitted by the translator,
as the whole turns upon certain points of
verbal ctiticim, not capable of an intelligible
translation.
or thin? taken is the sole property of the
receiver, because substance is totally diffe-
rent from debt, and the receiver has taken
the article in question in exchange for his
right. — He is consequently the proprietor :
and accordingly all acts of his with regard
to the substance in question are valid, and
he remains responsible, in a proportionate
degree, to his partner. — It is to be observed
that by a partnership debt is meant such a
debt as becomes due to two or more persons
from one case ; such as the price of goods
sold by two proprietors under one contract ;
or a debt inherited by two men ; or the value,
of a joint property destroyed by any person.
Now such being the established rule, it fol-
lows that, in the case in question, the part-
ner is at liberty either to demand his half of
the debt from the debtor (since his share still
remains due to him, in as much as the other
partner has only received the amount of his
own right), or to take the half of the cloth
from the other partner, because of his right
of participation in it.— If, however, the other
should give him a composition, by paying
him the quarter of the debt, he then has no
right to half of the cloth, as his right is only
to quarter of the whole debt
One of two partners receiving payment of
his share m a debt due to them jointly, and
paying the other his proportion of what is
so recovered, has still a r/aim upon the re-
mainder. — IF one of two partners in a debt
should receive, from the debtor, the half of
his portion of the debt, the other partner is
then at liberty either to participate in the
half so received, or to look to the debtor for
his full share, for the reasons recited in the
preceding example.— If, therefore, he should
participate with the compounding partner,
both partners are in that case entitled jointly
to take from the debtor what remains due,
because having shared equally in what was
received, they are of consequence entitled to
share equally in the remainder.
// the other prefer receiving payment of
his part, solely, from the debtor and the
property be lost, or the debtor prove insolvent,
he has then a claim to his proportion of what
has been received by this partner ; but not
where this partner has compounded for his
share by a commutation. — IF, on the con-
trary, he should prefer demanding his share
in full from the debtor, to an equal partici-
pation in the part received by the other
creditor, and that part of the debt which
has been received should remain safe, and
that which remains due be lost, or destroyed,
either by the debtor's dying insolvent, or by
his denial of the debt upon oath, he is in
that case still entitled to a participation
with the other creditor in what has been
received ; because he declined it before only
on the supposition of the safety of the re-
maining part of the debt ; and when the
event proves otherwise, he of course be-
comes entitled to an equal participation.
Supposing, however that one of the joint
creditors, instead of receiving his share of
BOOK XXVI.-CHAP,
COMPOSITION
451
he debt, should commute if for a debt which
he had previously contracted to the debtor, —
then the other sharer, in case of the destruc-
tion of that portion of debt due to himself,
is not entitled to any participation with him
since he is in this instance, held to have paid
a debt, not to have received payment of one
— The law is also the same, where one of the
creditors exempts the debtor from that share
of the debt which is due to him, because an
exemption is a destruction and annulment,
and not a receipt.
In a release from a part of his share, by
one partner, the right of the creditors con-
tinues in p^opo-tion to their remaining
claims. — IF one of two partners in a debt
release the debtor from a part of his pro-
portion of the debt (such as an half, for
instance), the remaining part of the debt is,
in that case, due to Ihe two creditors in
degrees proportionate to their respective
rights. — As, for instance, if the debt due to
them were or ginally twenty dirms. and one
of them afterwards release the debtor from
the half of his share, the remaining debt
will then be fifteen dirms, of which five are
due to the exempting psrtner, and ten to the
other partner,
One of two partners may agree to a post
ponement of payment, —Ip one of two part-
ners should protract the period of payment
of his share it is valid, according to Aboo
Yoosaf, because of its analogy to an absolute
exemption or release— in other words, as a
suspension of the payment is equivalent to
a restricted release, it is therefore valid, in
the same manner as an absolute release.—
According to Haneefa and Mohammed this
is not valid: — as in such a case it must follow
that a division of debt takes place prior to
seisin, — since protracting the period of pay-
ment with respect to one share, and not to
the other, is, as it were, a partition of the
share; and a partition of debt previous to
seisin is not lawful ; because partition bears
the sense of endowment with a right of pro-
perty, and the endowment with a right in
a debt, made to any other than the debtor
himself, is not lawful. — Moreover, partition
implies distinction: and as distinction can-
not exist with rajpect to any obligation upon
the person, it is therefore invalid.
One of two partners receives his share by
usurping anything from the debtor : or by
losing or destroying anything belonging to
him; or, by accepting a lease in composi-
tion ; or. by burning a p*ece of cloth, his
property.— IF one of two partners usurp
some specific article from the debtor, or pur-
chase something from him by an in invalid
contract, and lose or destroy the some,
these acts are considered as equivalent to a
receipt of his debt.— So also if one of two
partners accept a lease from the debtor in
lieu of his debt, he is in that case held to
have received his debt. If, also one out of
two partners should burn a piece of cloth
belonging to the debtor of equal value with
his share of the debt, this is a receipt,
according to Mohammed, but not according
to Aboo Yoosaf. (Some, however, observe
that »his difference proceeds on the supposi-
tion of his having thrown fire on the cloth,
without having previously laid hold of it ;
for if heshou'd have first laid hold of the
cloth, and ihen burned it, all our doctors are
of opinion that he has received his share,
because he is considered first to have
usurped the cloth, and then to have de-
stroyed it )
One of two partners annu/s his share by
marrving the dtbtor (b«ing a female) and
set ling his sham of the debt as her dower ;
or, b_v compounding with it for an offence. —
IF the debtor be a female, and one of two
partners, in the debt should marry her, and
stipulate hi* share of the debt as her dower,
this, according to the Zahir Rawayet. is an
annulment : — and so also if he compound
with his share, for a wiful offence, — It is,
however, to be observed, that if one of the
partners in a debt should marry the woman
who is their debtor, without stipulating his
share of the debt as her dower, in that case
the other share has a claim upon him, as
under s«ich circumstances he is held to have
mide commutation with his wife of his
claim for hers. It is otherwise where he
stipulates his share of the debt as her dower;
for then he is held to have annulled, and
not to have commuted his right, and on this
account the other share can have no future
claim upon him.— It is an invariable rule
that. wh<>re a receipt has been made, by one
partner, the othe partner, in case of the
destruction of his right, by the debtor's
dying insolvent, or otherwise, is entitled to
participate with the receiving partner ;—
but he has not such right in the case of an
annulment.
One of the partners compounding his share
of the debt by a purchase, the zther may either
take his share from the debtor, or on equiva-
lent for his proportion in the receipt from the
purchaser.-— IF one of two partners in a debt
purchase something from the debtor (such aa
cloth, for instance) in lieu of his share of the
debt, then the other partner u at liberty,
either to require his share of the debt from
the debtor (in which case all the effects take
place, as described in the preceding examole,
where the partner requires payment from
the debtor).— or to take an equiavlent from
the purchaser of a fourth part of the debt ;—
because he [the purchaser] has taken com-
plete possession of his debt, since in paying
and selling there is no degree of loss or dis-
parity admitted in the things exchanged,—
He, therefore, is responsible for a fourth part
of the debt, and has no option of either giving
a quarter of the debt, or a half of the cloth,
—It is otherwise in a composition, because,
as comp>sition generally proceeds upon a
principle of lenity and abatement, it would
be an injury to the compounder to force him
to give a fourth part of of debt, and there-
fore an option is afforded him either to give
a fourth part of the debt, or the half of the
452
COMPOSITION
[VoL HI.
article received in composition.— The non-
receiving partner, moreover, is not entitled
to any part of tht cloth purchased, as the
purchasing partner has become proprietor or
the same in virtue of contract of sale.
OBJECTION — The cloth in question ought
to be divided between the two partners, as it
has been acquired in exchange for a joint
debt.
REPLY —The cloth in question has not been
acquired in exchange for a joint debt, but
merely in exchange for the share of the pur-
chaser, in this way, that it produces a com-
mutation of the price of the cloth for that
part of the debt which is due to him.
OBJECTION. — If the price of the cloth be a
commutation of his share of the debt, it in-
duces a partition of the debt prior to the
seisin oi it, which is lawful.
REPLY,— A wilful partition of debt, pre-
vious to the seisin, is unlawful, but an
unintentional partition of it (by that being
comprehended, for instance) is lawful : and,
in the case in question, it is comprehended
in the validity of the sale : in the same
manner as (in the preceding case) the par-
tition of the debt, previous to the seisin, is
interwoven with the validity of the com-
position.
One of two partners in a sillim contract
cannot compound for his share.— IF two
persons conclude a Sillm contract (that is,
advance money for goods, to be delivered
at a future period), and one of them after-
wards compound his share of the goods for
his share of the stock advanced, it is not
lawful, according to Haneefa and Mohammed
— Aboo Yoosaf maintains that it is lawful, as
he considers this to be analogous to any other
debt : and also to a case where two persons
purchase a slave, and one of them afterwards
dissolves the contract with respect to his
share, which is lawful ; and so also in the
persent case. — The arguments of Haneefa and
Mahammed, upon this point, are twofold. —
FIRST, if the composition in question be law-
ful with respect only to the share of one of
the partners it must necessarily follow that
a partition of the debt has been made prior
to the seism of it ; which is unlawful ; for as
the debt, prior to the seisin, is not extant, it
is impossible to discriminate part from part.
If, on the other hand it be lawful with re-
spect to the shares of both, then the consent
of the other must be had.— It is otherwise
where two persons purchase a slave, and one
of (hem dissolves the contract with respect
to his share, because the slave in question is
extant, and the partition of an extant thing
is not impracticable, since part can be discri-
minated from part, whether before seisin or
after it.— SECONDLY, if the composition in
question be valid, it must follow that the
right of the purchaser to the goods for which
the advance has been made is annulled, and
established in the capital (that is, in the price
advanced), and that it afterwards reverts
with respect to the goods for which the ad-
vance has beep made. For supossing the
composition to be valid, and that one of the
partners receives, in consequence* his share
of the capital, the other partner has then a
right to take from him his proportion of it ;
and the compounder again has a claim upon
the other partner for a proportionate part of
the goods. H. nee it follows that the right
of the compounder reverts, with respect to the
goods of which the advance has been made,
aftt r annulment ; — but an annulment cannot
take place without a dissolution : a dissolu-
tion, therefore is primarily established. —
Now. upon his right reverting, and annulment
of the dissolution is induced ; and this un-
lawful, as a dissolution in contracts of Sillim
cannot be annu led — Lawyers have observed
that this case proceeds on a supposition of
the purchasers having mixed together their
capital : for, if their shares of the capital
should not have been mixed or complicated,
then (according to the first o' the above argu-
ments) the same disagreement must still sub-
sist ; since a division of the debt previous to
the seibin must then also necessarily follow :
but, according the second argument, the
composition is valid in the opinion of all our
doctors ; for, in such a case, the non com-
pounding partner would not participate with
the cumpounder in that part of the capital
which he receives back, as they were not co-
partners in the capital, and hence it does not
follow that the right of the purchaser, to the
goods for which the advance was made, reverls
after annulment —It is recited in the Auzih
that this assertion concerning the unanimity
of our doctors, as stated in the second argu-
ment, is not well founded : because a right to
participate in tht article received is founded
on this circumstance, that the goods which
the advance has been made constitute a joint
debt, as it arises from one contract in which
they are alike concerned ; and hence the non-
compounding share has a right to participate
with the compounder in whatever he may
have received in virtue of their partnership
in the goods for which the advance was made,
whether their shares of the capital have been
complicated or not.
Section
Of Takharij.
Definition of the term. — TAKHARIJ, in the
language of the i AW, siginifies a composition
entered into by some heirs with other heirs,
for their share of the inheritance, in con-
sideration of some specific thing, which
excludes them from inheritance.
Heirs may compound with a co-heir for
his share of inheritance, consisting of land
or effects, by any equivalent, — IF the estate
of a persons, consisting of land, or of goods
and effects, be liable to be shared among
several heirs ; and the heirs compound
with one amongst themselves for his share
oi the inheritance, by giving him some
specific article, such composition is lawful,
whether the thing given be superior or in-
ferior to his right ; because it is possible to
COMPOSITION
BOOK XXVL-CW. HI.]
legalize this composition; by construing it in
the nature of a sale . and also, because it is
related that, in the time of Osman, Tamazir
t^f Tf5 ?f AWul-Rihman, the son of Auf,
who had been divorced by her husband in
his last illness, compounded her share of the
inheritance, which was a fourth of the
eighth, for one half of the fourth of an
eighth: as is evident from this circumstance,
that AbduURihman, who, besides children,
had four wives, left an estate of five millions
three hundred and twelve thousand DEENARS;
and the share she received was eighty three
thousand deenars, which is one half of the
fourth of an eighth.
Or, by one precious metal, where the in
heritance is in another precious metal. — IN
the same manner also, if the estate consist of
silver, and gold be given to one of the heirs
as a composition.— or, if it consist of gold,
and a composition be given in silver, it is
valid, whether the thing given be inferior or
superior, because this is a sale of one species
tor another, and in it the condition of
equality between the consideration and the
return is not required. —It is requisite how-
ever, that the subjects of the composition be
mutually interchanged and taken possession
of by the parties at the place where the con-
tract of composition is concluded ; for this is
a Sirf sale, and in it mutual seisin at the
meeting is a necessary condition.— -But if the
heir, in whose possession the remainder of
the estate it, should deny the possession
then the former seisin suffices, because it is
a seisin of responsibility (since it is in the
na 5Cr usurpation), and may therefore
stand for a seisin of composition.— If, on the
contrary, he should acknowledge the posses-
sion, then it is necessary that a new seisin be
made ; because the seisin, in that case, being
in the nature of a trust, and consequently
unattended with responsibility is weak in
comparison with a seisin of composition,
which is attended with responsibility, and
therefore cannot be substituted in the place
of it.
An inheritance of bullion and effects may
be compounded for bv gold or silver ; but this
gold or silver must exceed the share of the
same metal inherited; and the heir must be
put in possession of such excess at the time
oj adjusting the composition.— IP the estate
consist of gold, silver, goods, and effects, and
the heirs compound the share of one amongst
themselves for silver or for gold : it is in that
case requisite that the gold or silver given
in composition be somewhat greater than his
snare of the gold or silver by inheritance, in
order that, after opposing an exact equality
of the two similar srecies to each other, there
may remain some excess to oppose as a com-
position for his share of the other articles, to
the end that the imputation of usury may be
avoided.— In this case, also, it is requisite
that possession be taken, at the meeting, of
the thing opposed to his share of the gold or
the silver, because the composition to the
extent is considered in the nature of a Sirf
453
sale. — If, in the case in question, the com-
position be made for goods and effects, it is
lawful, absolutely, — that is, whether seisin
be made by the parties at the meeting, or
otherwise, — and whether the thing given in
cbmposition be inferior or superior to the
share of the inheritance.
An inheritance of money may be com*
pound eJ for by money ; each species being
opposed t.> the other respectively.— If the
estate consist of dirms and deenars, and the
composition also consist of dirms and deenars,
it is lawful, whether the amount given in
composition exceed or fall short of the share
of inheritance compounded for, because each
kind is opposed to its opposite, in the same
manner as in sale — It is a requ site, how-
ewr, that the seisin be made at the meeting,
because the composition in question is in the
nature of a Sirf sale
T e inheritance of a debt cannot be com-
f o mded — IF there be a debt due to the
deceased, and it be included in the composi-
tion.—by the compounding heir giving up
his share of it, and agreeing that it shall go
entirely to the other h«irs, such composition
is null ; — because in this case the heir renders
the other heirs proprietors of his share of a
debt, which is unlawful, as the property of a
debt cannot be conveyed to any but the per-
son indebted. —The composition, therefore,
is null ; — because it is null in that part
which relates to the debt ; and when a con-
tract is null in part, it becomes null in the
whole,— since where a contract is invalid
with respect to a part of its its subject, it is
invalid in toto
Except by the heir agreeing to release the
debtor from his proportion — IF, however,
the composition be made on this condition,
that the compounding heir shall release the
debtor from his share of the debt, and that
the others shall not exact it, the composition
is valid, as it is either an annulment of the
debt, or a conveyance of it to the debtor
This is one expedient for legalising the com-
position.
Or by the other heirs paying him that
proportion gratuitously, — ANOTHER expe-
dient is, by the heir? paying, in a gratuitous
manner, to the compounding heir, the share
of the debt which is due to him, and then
making a composition with him for his share
of the collected part of the estate. — In both
these expedients, indeed, an injury results
to the other heirs :— in the latter, evidently,
as there they pay his demand, out of their
right, without any return ;— and in the
former, because it is possible that they may
never receive the debt, nor any part of it,
from the property of the debtor.
Or lending it to him, to transfer to the
debtor.— THE best expedient, therefore, is
that the heirs lend the compounding heir
the amount of his share of the debt, and
then compound with him for his share of the
collected estate ; and that he then transfer
the said loan to the debtor, in order that the
other heirs may lawfully receive from the
COMPOSITION
[VOL. IIj
debtor the share of the debt which is due to
him.
Case of composition of an inheritance
where the particulars of the estate are not
known. — IF there be no debts due to the
estate of the deceased, and it be not known
of what sfjjciee the articles of the estate con-
sist, and one of the heirs compound his share
for articles of weight, or measurement of
capacity,— some have s«iid that this composi-
tion is not lawful, because of th; s'mHJance
it bears to usury — Others, however, main-
tain that it is lawful, as the semblance to
usury is dubious in this instance ; for, in the
first place, it is possible that the articles may
consist of articles of weight and of measure-
ment of capacity, and it is also posuble that
they may not ;— and, in the next place, if
they do consist of such articles, it is possible
that the quantity of the composition may be
unequal to his right, and it is als-> posuble
that it may be equal to it. — The semblance
to usury is therefore dubious ; and regard is
had to an actual semblance only, not to a
dubious semblance.
Case of the same, where the particulars are
only known in part — IF the estate consist of
something else than articles of weight or
measurement of capacity, but of which the
particular substances are unknown, and one
of the heirs compound his share for articles
of weight or measurement of capacity,— some
have said that this is unlawful ; because the
composition, in this case, is in the nature of
a sale, or an exchange of property for pro-
perty ; and this is not lawful when one of
the articles opposed in exchange is uncer-
tain. The most approved opinion, however,
is, that it is la ., ful ; since the uncertainty
here cannot be productive of strife, inasmuch
as the thing tor which the composition is
made, and which is the subject of the un-
certainty, is in the hands of the rest of the
heirs.
The inheritance of an insolvent estate can
neither be compounded for noi distributed.—
IF the estate be completely overwhelmed
with debt, neither composition nor division
of it amongst th« heirs is lawful ; because
the heirs are not, in this case, masters of the
property, as inheritance takes place only
with respect to such property as in unin-
cumbered with some essential requisite of
the deceased ; and the payment of the debts
of the deceased is one of his essential requi-
sites. If, also, the estate be not completely
overwhelmed with debt, it is not even then
becoming to enter into any composition until
the debts be discharged. Lawyers, however,
have said that if, in such case, a composition
°f a division be made, prior to a discharge of
the debts, it is valid,— Koorokhee. in treating
of partition, observes that it is not valid ac-
cording to a favourable construction of the
law ; but that it is valid upon the principle
of analogy.
BOOK XXVII.
OF MOZARIBAT, OR COPARTNERSHIP. IN THE
PROFITS OF STOCK AND LABOUR.
Definition of the term. — MOZARIBAT is
derived from Zirrib, and means, in its literal
sense, to walk on the ground. In the lan-
guage of the LAW, Moz iribat signifies a con-
tract of copartnership, of which the one party
(namely, the proprietor) is entitled to profit
on account of the stock, he being denomi-
nated Rabbi Mai, proprietor of the stock
(which is termed Ras Mai) ; and other
party is entitled to a profit on account of his
labrur ; and this last is denominated the
Mozanb (or manager) inasmuch as he
derives a benefit from his own labour and
endeavours.
A participation in the profit is an essential
of the contract. — A CONTRACT of Mozaribat,
therefore, cannot be established without a
participation in the profit ; for if the whole
of the profit be stipulated to the proprietor
of the stock, then it is considered as a Bazat ;
or, if the whole be stipulated to the imme-
diate manager, it be considered as a loan.
Chap. I. — Introductory.
Chap II.— Of a Manager entering into a
Contract of Mozaribat vith another.
Chap. III. — Of the Dismission of a
Manager ; and of the Divison of
the Property.
Chap. IV. — Of such Acts as may be
lawfully performed by a Manager,
Chap. V.— Of Disputes between the Pro-
prietor of the Stock and Manager.
CHAPTER I.
Contracts of Mozaribat are lawful.— CON-
TRACTS of Mozaribat are authorized by the
LAW from necessity ; since many people have
property who are unskilled in the art of em-
ploying it ; and others, again, possess that
skill without having the property ; — hence
there is a necessity for authorizing these
contracts, in order that the interests of the
rich and poor, and of the skilful and unskil-
ful, may be reconciled :— moreover, per pie
entered into such contracts in the presence
of the Prophet, who did not prohibit, but
confirmed the same : several of the com-
panions, also, entered into these contracts.
The stock is a trust in the manager's hands.
— WHATEVER may be given by the proprietor
of the stock to the manager is considered as
a trust, because the manager takes posses*
sion of the same at the desire of the pro-
prietor, and neither with a view to purchase
nor to pawn, — The manager is also an agent
on the part of the proprietor in regard to
the employment of the stock, as he acts in
that respect by the orders of the proprietor.
Whenever, therefore, any profit is acquired,
the proprietor and the manager are joint
shares in it, inasmuch as it proceeds jointly
from the stock of the one, and the labour of
the other,
BOOK XXVU.-CHAP. I.]
MOZARIBAT
455
I/ the contract be of an invalid nature, the
manager, in lieu of profit, receives an ade-
quate hire. — WHEN a contract of Mozaribat
is invalid: it is, in effect, an invalid hire ;
because, as the manager acts for the pro-
prietor, with regard to his stock, the profit
which is stipulated to him is similar to hire
for his labour. The contract of Mozaribat,
therefore, where it is invalid, bears the con-
struction of an invalid hire ; and such being
the case, the manager is entitled only to a
hire adequate to his labour.*
A manager opposing the proprietor, stands
as on usurper — IF the manager should
oppose the proprietor, he is then held to be
an usurper, since he wilfully transgresses
with respect to the property of another,
A M^zaribat holds only in such stock as
admits of partnership —CONTRACTS of Mo-
zaribat are valid only with respect to stock
in which contracts of copartnership are
valid ; namely, dirms and dcenars (according
*o Haneefa) and also current Faloos (accord-
ln% to the two disciples), as has been already
treated of at large, under the head of Part-
nership.— Hence if a proprietor of stock
should give goods or effects to another; and
desire him " to sell them, and then to act
as a Mozarib with regard to the price, "t
the contract of Mozaribat would in such
case be lawful, because it is not referred to
the goods or effects, but to the price of these,
and this is a thing respecting which a con-
tract of Mozaribat is valid. — In regard to
his referring the contract to a price at a
future period, it is lawful to do so in con-
tracts of Mozaribat ; because such contracts
are either in the nature of a commission of
asency, or of hire ; and neither of these is
preventive of the validity of a reference to a
future period. — In the same manner, a's^, if
the proprietor should say, "receive the debt
due to me by a particular person, and act as
manager with regard to it ;" the contract of
Mozaribat is then lawful, because, by being
referred to the period of seisin, it rebates to
substance and not to debt, and it is lawful to
refer it to a future period, for the reason
above mentioned. — It is otherwise, however,
where the proprietor of the stock says, "act
as a Mozarib with respect to the debt due by
you ;" for this is not lawful either according
to Haneefa or the two disciples : — according
to the former, because he holds an appoint-
ment of agency of this nature to be unlaw-
ful (as has been before exolained in treating
of agencv and sale) : and also according to
the two disciples, because, although such an
appointment of agency (as they hold) be
* To understand this it may be proper to
remark, that where a contract of hire is ren-
dered invalid by the invalidity of any of its
conditions, the person hired is entitled only
to a hire proportionable to the subject, and
not to the hire stipulated in the contract.
t That is, "to employ them in trade, in
the manner of MOZARIBAT."
lawful, yet as a thing purchased by a pes-
son so instructed is the property of the in-
structor, it follows that the contract of
Mozaribat relates to goods and effects,* and
is accordingly unlawful.
It reqwres that the profit be determinate.
— IT is one of the conditions of a contract of
Mozaribat, that the profit of the proprietor
and the manager be indeterminate ; that is
to say; that neither of them be entitled to a
specific number of dirms : for if the condi-
tion of a specific number of dirms be stipu-
lated with respect to one or other of the
parties, the partnership between them with
respect to the profit ceases to exist, since it is
possible that the whole profit might not exceed
the number fixed, and it is essential that they
be partners in the profit. If, therefore, ten
dirms (for instance) be fixed as the portion of
one of the parties, the manager is entitled to
an hire adequate to his labour, because the
contract of Mozaribat has become invalid,
since it is possible that the whole profit
acquired may not exceed the amount fixed,
in which case there could be no copartner-
ship with respect to it. — The manager is,
in this case, entitled to an adequate hire,
because his object in his labour was to receive
a return, and he is prevented from receiving
such return by the invalidity of the con-
tract : it is therefore indispensable that he
be paid an adequate hire.— In regard to the
profit which in such case may be acquired,
it goes to the proprietor, being consi-
dered as the offspring of his property. —
This is the law in every case of an invalid
contract of Mozaribat — It is to be observed
that an adequate hire, in the case of an
invalid contract of Mozaribat, cannot, in the
opinion of Aboo Yo35»af, exceed the quantity
stipulated. According to Mohammed, on the
contrary, whatevet may be adequate, with-
out any regard to the quantity stipulated,
must be given : as has been already ex-
plained in treating of partnership —In a
case where the contract proves invalid, an
adequate hire is declared, in the Rawayet
Aasil,t to be due, although no profit should
have been acquired, because the hire of a
hireling is due upon the delivery either of
profit or of labour, and the delivery of one or
both of these here takes place.— It is recorded
from Aboo Yoosaf that nothing in such case
is due, because of its analogous resemblance
to a valid contract of Mozaribat — that is to
say, as in a valid contract of Mozaribat
nothirg is due to the manager in the event
of there being no profit, so if the contract be
invalid, nothing is due to him a fortiori. —
It is further to be observed that the stock of
an invalid contract of Mozaribat is not to be
replaced or accounted for in case of its loss
or destruction : — that is to say, indemnifica-
• Arab. Rakht woo Mattaa, as distin-
guished from Mai. SPC Vol. I., p. 10.
f The original traditons. A law-book so
called.
456
MOZARIBAT.
[VOL III,
tion is not incumbent upon the manager ; —
because, as there is no responsibility for a
loss of stock in a valid contract, so neither is
there any in an invalid contract : and also,
because, as the manager in the case of an
invalid contract is only a hireling, and the
stock remains in his possession merely that
he may employ it, no indemnification is due
from him on account of its destruction.
And not subjected to any uncertainty—
ANOTHER requisite, in contracts of Moza-
ribat, is that there be no condition creative
of an uncertainty with respect to the profit;
for such a condition invalidates the contract,
from its destruction of the object of it Any
other invalid condition, however, excepting
this, or such as are opposite to the nature of
the contract, do not invalidate the contract,
but of themselves fall to the ground, as in
the case of a condition of loss to the manager
(where it is stipulated that "whatever profit
may accrue shall be shared between the pro-
prietor and the manager, according to their
agreement ; but that if any loss result, it shall
fall entirely on the manager"). The con-
tract of Mozaribat, therefore, is not annulled
by the stipulation of coditions of this
nature, but the condition itself is null :
because, as the condition is merely redun-
dant, and is neither productive of a dissolu-
tion of the partnership, nor of uncertainty
with respect to the profit, the contract of
Mozaribat is not thereby rendered invalid ;
in the same manner as agency does not
become invalid from the invalidity of its
conditions.
That the stock be completely made over to
the manager.— ANOTHER requisite in Moza-
ribat, is that the proprietor deliver over the
stock to the manager, and retain no seisin of
it, because it is in the manager's hands in
the nature of a deposit, and must therefore
be in his sole possession, and in no respect
in possession of the proprietor. It is other-
wise in a contract of partnership; because,
in a contract of Mozaribat, the property is
supplied by the one party, and the labour
by the other ; whence it is indispensable
that the property remain entirely with the
manager, in order that he may be competent
to perform the necessary labour with regard
to it ; whereas, in partnership, the labour is
supplied by both parties : whence, if it were
stipulated that the property shall remain
entirely with one of the parties, a contract
of partnership would not be established.
A condition of management by the proprie-
tor invati dates the contract. — A CONDITION of
management by the proprietor of the stock
invalidates a contract of Mozaribat ; because
where such a condition exists, the stock can
never be possessed solely by the manager,
wherefore he cannot be competent to act
with respect to it, and thus the object of the
contract (namely, participation in the
profit) cannot be effected ;— and this, whether
the proprietor be of sound understanding or
otherwise (such as an infant), becanse, as
the possession of the stock is established in
the pioprietor in virtue of his right of pro-
perty, so long as it continues in his posses-
sion no delivery of it to the manager can be
certified, — In the same manner, also if one
of two Mozaribat partners, or one of two
Ainan partners, deliver stock to any person
in the way of a Moz ribat, and stipulate
that the other partner shall also engage in
the management of it, such contract of
Mozaribat is null, — because the other part-
ner is also a proprietor of the stock in ques-
tion, although he be not a party to the
Mozaribat agreement.
And so also, a condition of management
by the contracting party, although he be not
the proprietor. — IF the contractor of a Mo-
zaribat agreement be not the proprietor of
the stock, and stipulate that he also shall
unite with the Mozarib, or manager, in the
management of the stock, such agreement
or contract is invalid, where the contractor
happens to be incumbent, — that is. where
he is a person who (like a privileged slave)
cannot lawfully undertake the management
of stock, in the way of Mozaribat. — Where,
therefore, a privileged slave give stock to
another to manage in the way of Mozaribat,
stipulating that he shall, corjunctly with
the manager, act with regard to the stock,
for a proportion of the profit, the contract is
invalid, because although t e slave be not
actual proprietor of the stock, yet as he has
a possession of it, with the power of employ-
ment, he is held to be the same as the pro-
prietor, and therefore his possession of it is
destructive of the validity of the contract.
Unless he be competent to undertake it. —
But if the party be competent to receive
stock, and act as a manager then the con-
tract in question would not be invalid ; — as
where, for instance a father, or a guardian,
give the property of his infant charge to
any person, to manage in the way of Mozari-
bat, stipulating that he himself, in exchange
for a certain share of the profit, shall joint in
the management of the stock ;— in which
case the contract is valid ; because, such a
person being himself entitled to undertake
the management of the infant's property, in
the way of Mozaribat, is equally entitled to
join in the management of it in the way of
Mozaribat, with others.
The manager is at liberty to act with the
stock according to his own discretion. — As
contracts of Mozaribat are absolute, that is
to say, are not restricted to time, place, or
other circumstances, It is therefore lawful
for the manager to purchase or sell, or to
eat of, or travel with, the stock ; or to lodge
it, either as a Bazat or a deposit; because
the contract is unrestricted ; and the object
of it is the acquisition of profit ; and as this
cannot be accomplished but by trade, the
contract of course extends to every occurrence
in commerce, and the appointment of an
agent, or the giving property by way of
• See Paitnen>hip, Vol. II p. 233.
BOOK XXVII.—
I.]
MOZARIBAT
45?
Bazat, or the deposit of property are all
occurrence of commerce ; — and in the same
manner, travelling is evidently so, because
a trustee, who has no power of action with
respect to his trust, has yet a power of
travelling with it, and therefore a manager,
who has the power of action with regard to
the stock, entitled to travel with it a for-
tiori : — besides, the word Mozaribat in itself
implies this power, as it is derived from
Zirrib, which signifies to walk on the ground,
or, in other words, to travel — It is recorded
from Aboo Yoosaf that a manager is not at
liberty to travel, and he has also related an
opinion of Haneefa, that if the proprietor
should give the stock to the manager in his
own city, the manager is not in that case at
liberty to travel, because to travel with
property is an unnecessary endangerment
of it ; but that, if the proprietor give the
stock to him in some other city than his
own, he may then travel to his own city,
because it is not likely that a man should
continue always travelling ; and as the pro-
prietor knowingly gave him the stock in
another city than his own, it may be pre-
sumed that he thereby consented to his
travelling with the property to his own
city.
But he cannot entrust it to another in the
manner of Mozaribat without the proprietor's
consenu. — IT h not lawful for a manager to
make over the stock to another, in the way
of Mozaribat, unless with the consent of the
proprietor, or unless he should have em-
powered him to act according to his own
judgment and discretion ; because a thing
cannot include its like, since both being of
equal force, one cannot yield to the other. —
Hence it is necessary either that an ex-
press permission should have been given,
or an absolute and discretionary power have
been delegated. — This case, therefore, is
similar to that of the appointment of an
agent ; for one agent has not the power of
appointing another agent, unless the con-
sitituent should have said "act according to
your own judgment and discretion." — It is
different with respect to the depositing of
property, or giving it by way of Bazat,
because these acts are lawful to a manager,
as they are of a nature inferior to a contract
of Mozaribat, and a thing may include its
inferior.
Nor lend it to another, although his powers
be discretional. — It is not lawful for a
manager to grant a loan to any one out of
the Mozaribat stock, although the proprietor
may have said to him "act according to
your own discretion ;" because the pro-
prietor of the stock, in giving this dis-
cretLnal power, means to give a latitude
with respect to such things only as are
relative to trade ; and Joan is not connected
with trade, but is a gratuitous dead, in the
same manner as charity, or a gift ; where-
fore, by giving a loan, the object (namely,
profit) cannot be obtained, since to receive
back more than what is lent is not lawful. —
Giving property in the way of Mozaribat, on
the other hand, is in the nature of trade, and
therefore a manager in such a case may give
the stock which is the subject of it, by way
of Mozaribat, to another, provided the pro-
prietor^ hav«» empowered him to act according
to his judgment and discretion.— The case is
the same with respect to partnership and
commixture of the sfpck with the manager's
own property ; — that is to say, if the manager
should commix the stock with his own pro-
perty and thus because a partner therein, it
is lawful, provided the proprietor have
empowered him to act according to his judg-
ment and discretion, because mixture and
copartnership are in the nature of trade, and
the power so given is therefore held to extend
to it.
The manager cannot deviate from any
restrictions imposed upon him in the contract.
— IF a person give property to another by way
of Mozaribat, and restrict his management
of it to a particular city or to particular
articles, it is not lawful for the manager to
deviate therefrom ; because this is in the
nature of a commission of agency ; and as
restriction is attended with an advantage, it
is therefore allowed to operate.— (An expla-
nation will hearafter be given of the nature
of restriction.) — Neither is it lawful for the
manager under such circumstances to give
the stock by way of Bazat to another person,
to be cairied by him from that particular
city : for as it is not lawful for the manager
himself to carry it frorr that city he there-
fore is not entitled to delegate such a power
to another.
Upjn violating the restriction, the manager
becomes responsible for the stock. — IF the pro-
prietor restrict the management of the stock
to a particular city, and the manager never-
theless carry it to another city ; and there
purchase something with it, he becomes in
that case responsible for the stock ; and
whatever he may have purchased with it
becomes his property, as well as the profit
which may arise therefrom ; because he
stands as a usurper, since he has assumed a
power of action with respect to the property
of another without that other's consent.--
If, however, the manager, having carried the
stock out of the particular city, should not
purchase anything with it until he had
returned to the city to which the proprietor
had restricted his power of action, he be-
comes freed from responsibility (in the same
manner as a trustee who has opposed the
depositor becomes freed from responsibility
on the cessation of such opposition). —and
the stock resumes its former nature of
Mozaribat, in virtue of its continuance in
the possession of the manager, under the
original contract. — In the same manner; also,
if the manager, having brought something
with part of the stock in the city in ques-
tion, should depart from it with the remaining
part of the stock, and again return without
having purchased anything with it, in that
case both the purchase which was at nrtt
458
MOZARIBAT
[VOL. III.
made, and the part which was afterwards
brought back, are considered in the nature
of Mozaribat, for the reason above-men-
tioned.— It is to be observed that what
has been here related with respect to the
manager's becoming responsible upon carry-
ing the stock to another city, and there
making a purchase with it. is recited from
the Jama Sagheer. — In the Mabsoot, treating
of Mozaribat, it is related that the manager
becomes responsible immediately on carrying
the stock from the prescribed city. — The
more approved doctrine, however, is that
the manager becomes responsible imme-
diately on carrying away the stock from the
prescribed city ; and that upon his making a
purchase with it in another city the respon-
sibility becomes fixed and permanent, since
there then exists no probability of his bring-
ing it back to the prescribed city. — The
condition stated in the Jama Sagheer, there-
fore, of the manager making a purchase out
of the city, relates to the confirmation of the
responsibility, and not to the original birth
of it, which takes place immediately on
carrying the property out of the city.
A restriction to any particular part of a
city is invalid —lp. a person give stock to
another by way of Mozaribat, on condition
of his making a purchase with the said stock
in the market-place of a particular city, the
condition is invalid ; because a city, notwith-
standing the distinction of its parts, is yet
like one place and such a restriction is
therefore useless.
Unless stipulated under an express excep-
tion of any other place. — IF, however, he
exptessly limit the purchase toth- market-
place, by saying, "purchahse with this stock
in the market-place and nowhere else," a
purchase made out of the market-place is in
that case unlawful, because the proprietor in
this instance has expressly declared that
'he shall not make a purchase out of the
market-place," — and the proprietor is autho-
rized to lay this restriction. — The restriction
here mentioned is to be understood in the
proprietor saying to the manager. ''I give
this stock to you on condition that you act
with it in such a manner" ("that you pur-
chases cotton with it," for example) ; — or, on
condition that "you employ it in such a
place ;" — and so also, from his saying,
"Take this stock and employ it in Koofa f"
or, "Take this stock on con^ ition of half the
profit arising from it in Koofa."— If, how-
ever, the proprietor were simply to say,
"employ this stock in Koofa/' the manager
may then employ it in Koofa or out of
Koofa.— H he proofs, upon these profits, are
conn wcted with Arabic grammar.
The manager may be restrict edt in his
transactions, to particular persons. — IF the
proprietor say to the manager, "Take this
stock, on condition that you purchase and
sell with it with a particular person," such
restriction is valid, being founded on the
particular credit in business of the person
to whom it relates.— It i? otherwise where the
says "Take this stock on condition that vou
purchase with it from the peoole of Koofa,"
or "sell it to them ;— or, "Take this stock
for a Sirf-sale, on condition that you purchase
with it from Sirrafa [bankers], or sell it to
them;" — for if the manager (in theforrrier
instance) sell the stock in the city of Koofa,
to a person who is not an inhabitant of that
city, or (in the latter instance) sell it tc some
one who is not a Sirraf, his act is lawful ; —
because the first of these restrictions is merely
a restriction in point of place ; for as the
people of Koofa are all different in regard to
their judgments and manner of transacting
business, the restriction to them in general
could be attended with no advantage, whereas
the restriction to the place is advantageous
in regard to the preservation of the stock :
and the second of these restrictions is a
restriction to a particular mo-Je of sale ; for
as he did not confine the restriction to any
one individual* but to a particular set of
people who prosecute the business of Sirrafs,*
it is evident that the restriction was msant
merely to a Sirf sale — Such is the meaning,
in common acceptation, of the restriction in
these two particular cases ; but not in others,
The contract may be restricted, in itr
operation, to a partic ilir period. — IF the
proprietor limit the Mozaribat to a par-
ticular period, the contract becomes null at
the expiration of that period ; because, as
this is 9 commission of agency1 its conti-
nuance is therefore restricted to the period
specified ; and as the restriction of its du-
ration may be advantageous, it therefore
operates in the same manner as a restric-
tion to a particular place, or to a particular
mode of sale.
Nothing can be purchased, by the manager,
which is not a subject or property, in virtue
of seisin; with resp*ct to the proprietor. —
A MANAGES is not at liberty to purchate,
with the stock, a slave, who would become
free by being transferred to the proprietor,
whether from the circumstance of affinity,
or from any other cause (as if the proprie-
tor had already vowed to emancipate him),
because the contract has been made with a
view to the acquisition of profit, which can
be obtained only by repeated acts such as
previous purchase and subsequent sale ; and
to this last the freedom of the slave operates
as a bar : — and for this reason the purchase
of all such things as do not become property,
in virtue of seisin (such as wine or carrion)
is not comprehended in a Mozaribat con-
tract. (It is otherwise with respect to the
purchase of a thing under an invalid tale ;
•Sirraf is derived from Sirrif, which
signifies a pure sale or the act of exchanging
one sort of specie for a another : hence Sirraf
means not only a banker or money changer,
but also any one whose dealing are of that
nature, and consequently a negotiator of
Sirf sales.
BOOK XXVII —CHAP. I.]
MOZARIBAT
459
for this is comprehended in a Mozaribat con-
tract, since the manager may lawfully sell
that thing again after seisin : and conse-
quently profit, which is the object of the
contract, may in that case be obtained,) - If
therefore, a manager purchase a slave who
becomes free with respect to the proprietor
of the stock, such purchase is not included
in the Muzaribat stock, but is considered to
have been made for the manager himself ;
for the bargain being valid with respect to
the purchaser, is therefore effectual with
respect to him, in the same manner as in the
case of an agent for purchase who opposes
his constituent.
The manager cannot purchase a slave free
with respect to himself, where any profit has
been previously acquired upon the stock. —
IT is not lawful for a manager to purchase
a slave who is free with respect to the ma-
nager himself, where a profit has been gained
upon the stock ; because the slave of the
manager (namely, in the profit) would in
this case become emancipated from the
whole stock, and consequently the share
of the property would be valid, * accord-
ing to Mancefa (The two disciples hold
that it would become emancipated, because
of the known difference of their opinion
from that of Haneefa concerning the divi-
sibility or indivisibility of manamission ) —
Now, where a slave becomes emancipated,
either wholly, or in part, h? is no longer a
lawful subject of sale ; and consequently
the end of the contract (namely, the acqui-
sition of profit) cannot by this means be
obtained. Hence it is not lawful for a
manager, where a profit has been gained
upon the stock, to purchase a slave who,
with respect to himself, becomes free. — If,
however, he should make this purchase,
under such a circumstance, he becomes re-
sponsible for the amount of the Mozaribat
stock so expended, because he is then held
to have made the purchase for himself, and
he has paid the price out of the stock. — But
if there have been no accession of profit to
the stock, the manager may lawfully pur-
chase a slave that is free with respect to
himself, because there exists no bar, in this
case, since the manager has no share in the
purchase, f so as to render his portion in
the slave free.— And if, after the purchase,
a profit should arise, from the slave increas-
ing value, the manager's portion of the
slave, involving his share of the profit, is
emancipated; and he is not, in this case, in
any respect responsible to the proprietor of
* Because the slave, by becoming free in
part, is rendered unsaleable; and obtains a
claim to freedom.
t For, as no profit has been, as yet, gained
upon the stock, and as the profit is the only
thing in which the manager has any share,
it follows that no part of the manager's pro-
perty is expended in the purchase.
the stock,* because neither the increase of
the value, not the shate acquired by the
manager, were effected by his means, but
opetated of themselves independent of his
will or endeavour. Hence this case is the
same as where a person becomes heir to a
relation, or to some one else ; as if a wife
should purchase the son of her husband,
and should afterwards die, leaving behind
her husband and brother ; in which case the
child becomes free, and the father is not in
any degree responsible ; and so also in the
case in question.— (it is to be observed that
the sla^e in question must perform emanci-
patory labour to the proprietor of the stock,
to the amount of his share in him, as the
proprietor's property is involved in his per-
son ; he must therefore perform emanci-
patory labour; in the same manner as in a
case of inheritance.
Case of the manager purchasing a famale
slave, and begetting a child upon her. — IF a
person give one thousand dirms to be man-
aged, in consideration of a moiety of the
profit, in the way of Mozaribat, and the
manager purchase, for the thousand dirms,
a famale slave of the value of these thousand,
and afterwards have carnal connexion with
her, and she in consequence produce a child
also valued at one thousand dirms, and the
manager claim the child, and the child after-
wards increase in value to fifteen hundred
dirms, in this case the proprietor of the
stock has it at his option cither or claim
emancipatory labour from the slave [the
manager's child] to the amount of one thou-
sand two hundred and fifty dirms : or to
emancipate him : but the manager does not
owe any indemnification to the proprietor
for his share, though he be rich. The reason
of this is that there is a presumption of the
validity of the claim here made since it is
possible that the female slave may be the
wife of the manager, by her former proprie-
tor having first contracted her in marriage
to him, and afterwards sold her to him on
behalf of the Mozaribat stock : and that the
child which she produced may have been the
issue of his cohabitation with her: — but his
claim to the child was not effectual (that is
to say, the child was not emancipated), be-
cause of the condition of its emancipation
(namely, his right of property in the slave)
did not in any respect appear, as no profit
had as yet arisen from her : for the value of
each (namely, of the mother and child) was
exactly equal to the amount of the stock, and
consequently no profit existed in either of
them ; in the same manner as where the
Mozaribat stock consists of different sub*
stances, and the value of each substance is
equal to the stock, — in this way , that a per-
son purchases, with a stock of one thousand
dirms, two slaves, and each of them after*
* That is, he owes him no indemnification
for the vitiation of his property in the s ave
from this circumstance.
460
MOZARIBAT.
[VOL. III.
wards because worrh one thousand dirms,—
in which case no profit is held to exist in
either of them ; and so also in the case in
question : and as no profit appears, it fol-
lows that the manager obtains no share
whatever in either the slave or the child, and
consequently that his claim is invalid : but
upon the child exceeding the stock in value,
a profit then appears, and consequently the
claim formerly made then becomes valid. — It
were otherwise if the manner were first to
emancipate the child, and afterwards the
value of him to rise, for this emancipation
would be altogether invalid (that is to say,
would be ineffectual after the appearance of
profit, as well as before), because the libra-
tion is an indication of manumission, arid
the indication being null at the time, from
non-existence of a present right of propertyf.
cannot afterwards become effectual in conse-
quence of a supervenient right : whereas
claim, on the other hand, is an express noti-
fication, and hence may lawfully be admitted
as effectual, in consequence of a supervenient
right — (in the same manner ?»s where a per-
son, having declared the slave of another to
be free, afterwards purchases him ; in which
case the slave, after the purchase, becomes
free, in virtue of the previous declaration) ;
—and the claim being effectual after the ex-
istence of profit, and the parentage, also,
being established, it follows that the child is
free in virtue of the manager's right of pro
perty in a part of him : and no compensation
for any part of his value is due from the
manager to the proprietor of the stock,
whether the manager be rich or poor be-
cause the feedom of the child is established
in virtue of the parentage, and also in virtue
of the manager's right of property (that is
to say, virtue of both): — but as the right
of property is established subsequent to the
parentage, the freedom is therefore referred
to the right of property which takes place
independent of the will and endeavour of the
manager, and in which therefore he is guilty
of no transgression; and as the indemnifica-
tion for emancipating a slave | is an indem-
nification for damages, it is not due but in a
case of transgression. — The proprietor of the
stock is entitled, on this occasion, to demand
emancipatory labour of the male slave, be-
cause the property which he had in him re-
mains, as it were, detained in him ; — and he
is also at liberty or emancipate him, because
a slave who owes emancipatory labour is
• That is to say, "it were otherwise if the
manager's claim (involving the emancipation
of the child) were first admitted, £c."
f As the manager acquires no right of pro-
perty is in the child until such time as a profit
be obtained upon it.
£ As where a partner (for instance) eman-
ates his share in a slave, which induces
Uimate freedom in toto, and is therefore,
-onsequence, destructive to the pro-
' <5 other partners.
(according to Haneefa) like a Mokatib : and
the proprietor is therefor empowered to
emancipate him. — If the proprietor require
the labour, the slave must perform it to the
amount af one thousand two hundred and
fifty dirms ; for the proprietor is entitled to
one thousand on account of the stock ; and
the remaining five hundred, which is the
profit, is equally shared between him and
the manager ; the labour, therefore, must be
performed to the amount above stated ; and
upon the proprietor thus obtaining that
amount, of him, he is then entitled to take an
equivalent for half the value of the mother ;
because the proprietor being entitled to one
thousand DIRMS out of the twelve hundred
and fif y, on account of the stock (which
claim must always be first satisfied), it fol-
lows that the female slave is altogether pro-
fit, and is therefore equally shared between
the proprietor of ths stock and the manager;
and as the manager formerly preferred a
claim that was valid (since there was a pre-
sumption that he might have cohabited with
the famale slave in virtue of marriage), and
the efficiency of which remained suspended
only on account of the defect in his right of
property, and became effectual on the estab-
lishment of that right, by which means the
female slave becomes his Am -Wai id, — he [the
manager] is therefore responsible for the
share of the proprietor, whether he be rich
or poor, because the responsibility in this in-
stance is responsibility for assumption of
property, and a responsibility of the nature
does not remain suspended on transgression ;
— in the same manner as where a person, in
virtue of marriage, cohabits with the female
slave of another, and child is born of her,
and this person afterwards obtains, by in-
heritance, a right of property in her, jointly
with another person, — in which case the
person in question is responsible to the other
for his share ; and so also in the case in
question : — contrary to responsibility for the
child as before treated of.
CHAPTER II
OF A MANAGER ENTERING INTO A CONTARCT
OF MOZARIBAT WITH ANOTHER.
A manager entrusting the stock in his
hand to a secondary manager, is responsible
to the proprietor t upon any profit being ac-
quired on it — IF a mananger give stock to
another person, in the way of Mozaribat, with-
out authority from the proprietor of the stock,
in that case the first or principal manager
is not responsible [for the stock] either on
account of having so given the stock to the
other, or on account of that other's employ-
ment of the same, until such time as profit
shall have been acquired thereon : but when-
ever profit takes place, then the principal
manager becomes responsible to the pio-
BOOK XXVH.— CHAP. II,]
MOZARIBAT :
461
prietor of the stock.— This is recorded by
Hasan as an opinion of Haneefa. The two
disciples maintain that the primary manager
becomes responsible, immediately upon the
action of the secondary manager, whether
profit may have been acquired or not : and
this is agreeable to the Zahir Rawayet. —
Ziffer holds that the primary manager is
responsible for the giving of the stock to
the other, whether that other may have
acted with regard to it or not (and there is
an opinion recorded from Aboo Yoosaf to
the same effect) ; because it is lawful for a
manager to give the stock by way of deposit,
but not by way of Mozaribat ; and as, in
the case in question, it was given by way of
Mozaribat, the manager was therefore guilty
of a trespass, and is consequently liable to
responsibility — The argument of the two
disciples is that the stock is here in reality
given as a deposit ; and is only rendered
Mozaribat by the action of the secondary
manager ; — therefore (say they) there are
two circumstances in this case, and wo pay
attention to both circumstances, and deter-
mine, accordingly, that responsibility t. kes
place in case of the action of the secondary
manager : but if he do not act, and the pro-
perty be lost in his possession without any
transgression, responsibility is not in that
case incumbent," — The reasoning of Haneefa
is that the mere act of giving, previous to
the action, is a deposit, and after the action
it is an entrusting, in the manner of a
Bazat ; and as both these deeds are lawful
to a manager, he is not consequently re-
sponsible for either of them : — but upon
profit secruing, the first manager renders
the secondary one a sharer with him in the
stock, and ip therefore responsible in the
same manner as if he had mixed the stock
with the property of another, in which case
he would have become responsible in conse-
quence of his having rendered that other a
sharer in the stock ; and so also in the case
in question. All this proceeds on a supposi-
tion of both of the Mozaribats being valid :
but if one or both of them be invalid, then
the primary manager is not responsible,
though the secondary manager should have
acted with regard to the property ; because,
in such case, the secondary . anager is con-
sidered as a hilling, entitled to an adequate
hire, and not to any share in the profit.
Mohammed, in the Mabsoot, observes that
in case of the validity of the Mozaribat, the
primary manager becomes responsible ; but
he has not stated the consequences with re-
gard to the secondary manager. Some have
said that he is not responsible, according to
Haneefa, and that he is so according to the
two disciples ; proceeding on the different
opinions which they have maintained with
regard to the trustee of a trustee, — Haneefa
holding the principal and not the secondary
trustee to be responsible ; and the two disci-
ples holding the proprietor to be at liberty
to take the compensation from whichever
he chooses ; and so also in the case in ques-
tion — others, again, have said that the
proprietor, is at liberty, in the opinion of all
our doctors, to take a compensation either
from the principal or the secondary manager :
and this is the common opinion. Tras is
evidently the opinion of the two disciples
because, according to them, a secondary trus-
tee is responsible : —and it is also evidently
agreeable to the opinion of Haneefa ; because
the principal manager was guilty of a trans-
gression, in giving the stock to the secon-
dary manager without the proprietor's per-
mission ; ami the secondary manager was
also guilty of a transgression, in taking
possession of the property of another with-
out his consent. Respecting the two cases
of a manager and a trustee, the difference
between them according to Hanecfa, is that
the secondary tru tee takes possession of the
deposit with a view to the benefit of the
principal trustee, and is therefore not re-
sponsible : whereas the secondary manager
seizes the stock with a view to his own profit;
on which account it is proper to make him
responsible. It is to be observed that upon
the primary manager becoming responsible
for the stock, the contract of Mozaribat be-
tween him and the secondary becomes valid ;
and the profit is participated between them
agreeably to their stipulation ; because the
primary manager becomes proprietor of the
Mozaribat stock, in consequence of his re-
sponsiblity, from the time that he exceeded
his authority, by making it over to another
without the owner's consent, whence it is
the same as if he had so givsn his own pro-
perty If the proprietor, on the other hand,
should require the indemnification of the
secondary manager, then the secondary must
revert for satisfaction to the primary man-
ager, because of their c >ntract of mozaribat,
as he acts on behalf of the primary manager ;
— in the same manner as where a proprietor
takes a compensation from the turstee of an
usurper, in which case the trustee has re-
course to the usurper ; and so likewise in the
case in question ; and also, because the prin-
cipal manager deceived him in the body of
the contract And in this case also the
contract of Mozaribat between the primary
and the secondary managers is valid, because
responsibility ultimately falls upon the pri-
mary manager, and it is therefore the same
as if the proprietor had taken a compensa-
tion from him first : but the profit, in this
case, is fair and lawful to the secondary,
and not to the primary manager : because
the secondary is entitled to the profit on
account of his management, in which there
is no baseness ; but the principal is entitled
to profit merely from his right of property,
which being founded only on the payment of
the compensation, is not altogether free from
baseness, since a right of property merely
constructive is in one shape established, but
in another shape it is not established.
Case of manager entrusting the stock to
a secondary manager, with the proprietor's
concurrence. — IF a person give property to
462
MOZARIBAT
[VOL.III
another by way of Mozaribat, on condition
of half the profit, and with permission to
him to give the property to another in the
way of Mozaribat, and the manager, accord-
ingly, give the said property to another by
way of Mozaribat, on condition of a third of
the profit ; and the secondary manager em-
ploy the said stock, and acquire profit upon
it in that case, if the proprietor should have
said to the first manager, "Whatever advan-
tage GOD Almighty may grant upon it is
between you and me in an equal degree,"
then a half of the whole profit is due to it
the proprietor, one third to the secondary
manager, and one sixth to the primary
manager ; — because the act of the primary
manager, in giving the stock to the secondary
manager by way of Mozaribat, was 'awful,
as he had the consent of the proprietor there-
to ; but as the proprietor stipulated to him-
self one half of the whole profit, he is there-
fore entitled to it, and the remaining half is
all with which the manager has any concern ;
and as he agreed to give a third of the whole
to the secondary manager, these will remain
of course onlv one sixth of the whole to him.
— One half of the profit is, in this instance
fair and lawful to the two managers, although
the primary manager has not employed him-
self [with regard to the stock], because the
industry of the secondary manager is held to
be that of the primary : — in the same manner
as where a person hires another to make him
a garment for one dirm ; and the person
hired hires another to do the work for half a
dirm ; in which case, although the principal
hireling does no work, yet he is fairly and
lawfully entitled to the profit of an half
dirm, as the work of the secondray is con-
sidered as his work. But if, in the case
in question, the proprietor should have said,
"Whetehr advantage GOD Almighty gives
to you, is between you and me in an equal
degree ;" then the secondary manager is
entitled to one third, and the remainder is
divided in an equal degree between the
proprietor and the principal manager ; — be-
cause, in this instance, the proprietor com-
mits the disposal of the property to the first
manager, stipulating for himself one half of
the whole profit which may accrue from
it ; and as, by this statement, two thirds of
the profit accrue, those two thirds are equally
divided between the proprietor and the
manager. — It is otherwise in the preceding
case, because there the proprietor had stipu-
lated for himself one halt of the whole profit:
hence there is an evident difference between
the two cases.
If the proprietor of the stock say to the
manager, "I gave this stock in order that
whatever profit may result to you the reform
be equally divided between us ;" and, at the
same time, give him permission to have it
managed by Mozaribat, and if, accordingly
the manager entrust it to another manager
with an agreement of half the profit to him,
in this case one half of the profit goes to the
secondary manager, and the other half is
divided equally between the proprietor and
the primary manager ; because the primary
manager has agreed to let the secondary
manager have one half of the whole profit,
and the proprietor of the stock having already
agreed to this, the secondary manager is
entitled to one half accordingly ; and as the
proprietor established for himself one half of
the profit that might accrue to the primary
manager, and one half only on the whole
accrues to him (as the half which goes to the
secon iary must necessarily be deducted),
if follows that this half is divided between
them.
IF a proprietor give stock to any person
by way of Mozaribat, upon condition that, of
whatever advantage may accrue thereon,
one half shall come to him. — or that, one
half of the increase, above the original
amount, shall be divided equally between
him and the manager. — and at the same
time permit the manager to entrust the stock
in the way of Mozaribat to another, and the
manager accordingly give it to another in
the way of Mozaribat, with an agreement of
one half of the profit to him.— in that case
the proprietor is entitled to one half of the
profit, and the secondary manager to the
other half, whilst nothing whatever is due
to the primary manager ; for the stockholder
having conditioned for himself one half of
the property in an absolute manner, one half
therefore goes to him ; and as the principal
manager agreed to give one half (which is
the share that would be due to himself) to
the secondary manager, the same must
therefore be given to him ; hence he himself
is entitled to nothing ; — in the same manner
as where a person hires another to make him
a garment for one dirm, and the person so
hired again hires another to do the work for
one dirm also — in which case the secondary
hireling would be entitled to the dirm, and
nothing whatever would be due to the prin-
cipal ; and so also in the case in question, —
But if the primary manager to give the
secondary one two thirds of the profit instead
to one ha'f, then the proprietor is entitled to
one half, and the secondary to the other ;
and the principal manager must make good
of the secondary, from his own property, to
the amount of one third of the profit, in order
that a complete share of two thirds may be
thus rendered to him : for^ere the primary
manager stipulated to the secondary a thing
which was the right of the proprietor ; and
hence, in respect to the proprietor, his agree-
ment is of no effect, since, if such were the
case, it must necessarily follow that the con-
dition he had himself established was null ;
— yet there is no illegality in referring the
obligation of it to his own person, since it
relates to a fixed and certain object, inter-
woven in a contract which he was competent
to make. Hence he becomes responsible for
the safe delivery of two thirds to the secon-
dary, and consequently the discharge of the
same is incumbent upon him. Besides, he
deceived the secondary in the body on
BOOK XXVU-CHAP. Ill ]
MOZARIBAT
463
the contract, which a cause of recourse, —
that is to say, entitles the secondary to re-
vert and have recourse to the principal : — in
the same manner as where a peison has been
hired to make a garment for one dirm, and
be again hires another to do the work for one
dirm and an half. — in which case the secon-
dary hireling is entitled to an half dirm from
the property of the principal hireling :— and
so likewise in the present case.
Section.
The contract miy stipulate! a proportion of
the p ofit tc the slave of the proprietor.— IF
a manager st'pulate to give one third of
the profit to the proprietor of the stock, one
third to the slave of the proprietor (on
condition of assistance in the labour), and
the remaining third to himself, it is lawful
whether the slave be indebted or not : be-
cause the s isln of slave is valid (scpecially
wlvre he •'• a Mazoon, or privileged slave ;
and in the present case the slave is priviledge,
inasmuch as the condition of his working
with the manager endows him with a privi-
lege ; an \ already to the rule of the seisin
of a slave being valid, a master is not per-
mitted to take from a trustee the deposit
which may have been made by his slave,
although the slave be not privileged ; and on
the same principal, also, a master may sell
any thing to his slave, provided he be privi-
ledged) :— and the seisin of the slave being
valid, tt follows that the condition of his
uniting in the management is not repugnant
either to the delivery of the stock,* or to
the distinction between the stock and the
manager : the condition is therefore ap-
proved f (It is otherwise where it is made
a condition that the proprietor of the stock
shall himself work, because that is preven-
tive of delivery,! and consequently invalid,
as has been already explained.) —The con-
tract of Mozaribat, therefore, being valid,
one third of the profit goes to the manager,
and two thirds to proprietor of the stock ;
because the earnings of the slave are the
property of the master, if he be not indebted ;
and if he be indebted they are the property
of the creditors.— The doctrine here laid
down proceeds on a supposition that the
master, and not the slave, has concluded the
contract of Mozaribat.
But if a slave engage in such a contract on
behalf of his master it is invalid.— FOR if a
*To the slave, for the purpose of manage-
ment.
tlf a slave were incapable of making
seisin, it would follow that a delivery of the
stock to the slave (for the purpose of manag-
ing it) would, in fact, be a return of it to the
proprietor, his master, and consequently the
contract would be rendered nugatory.
JSince such delivery would be return of
it to the proprietor, which would invalidate
in contract.
privileged slave enter into ia contract of
Mozaribat with * stranger, stipulating that
his master shall act with the manager in the
management of the stock, the contract is
invalid, provided the slave be free from debt :
because in that case the Mozaribat stock is
the property of the master ;* and as it is
stipulated that the master shall unite in the
management, it is requisite that he make
seisin of it for that purpose ; but the seisin
of the proprietor is repugnant to a^ due
delivery. f If. however, the slave be insol-
vent, the contract is valid, as in that case
the master stands in thp same relation as a
stranger, according to Haneefa.
CHAPTER III
OF THE DISIMISSION OFF MANAGER ; AND OF
THE DIVISION OF THE PROPERTY.
The contract is dissolved by the death of
either party.— if either the proprietor of the
stock or the manager should die, the contract
becomes null ; because a contract of Mozari-
bat (as has been already explained) is in the
nature of an appointment of agency; and
agency ceases by the death either of the con-
stituent or of the agent ; and inheritance
does not take place with regard to agency, as
has been already demonstarted.
Or by the apostacy and expatriation of tht
manager.— If the proprietor of the stock
become an apostate, and be united to a
foreign country, I the contract of Mozaribat
becomes null ; because his being united to a
foreign country is equivalent to his death
(whence it is that his property is then divided
amongst his heirs).— If, on the other hand
he should not be united to a foreign country,
the transactions of his manager remain sus-
pended in their effect.— (that is to say, if he
again becomes a Mussulman, they then take
effect) ; but if he die in his apostacy, they
then become null (according to Haneefa
because his manager's transaction [with the
stock] is the same as his own transaction,
since the manager acts on his own account :
and a* (according to Haneefa) the acts of an
apostate are suspended in their effect, so,
in the same manner the acts of his manager
are suspended. t .
If the manager apostatize, without going to
a foreign country the contract still continues
*Whereas, if the priviledged slave were
involved in debt, the stock entrusted by turn
to the manager would (in common with hit
other property) be the right of his creditors.
t Because, as the property of the slave is.
in effect, the property of his master, it follows
thut a delivery to the master would be nuga-
y a sentence of the Kazee.
464
MOZARIBAT
VOL. III.
in force. — IF the manager become apostate,
yet the contract still continues to exist in its
original state, because the actions of a person
are suspended in their effect, only on accour.t
of a suspension of his right property : but
the apostate in question has no right of pro-
perty in the Mozaribat- stock, as that belongs
solely to the proprietor of the stock : and as
the proprietor's right of property is not sus-
pended, the contract of course still continues
in force.
All acts of the manager are valid, until he
be duly apprized of his dismission. — IF the
proprietor of the stock dismiss the manager,
and he should not be acquainted with his
dismission until after he had transacted
by purchase and sale then those transactions
are valid ; because he acts as an agent on
behalf of the proprietor ; and the dismitsion
of an agent, if it be voluntary and intended
(that is to say, not virtual, such as by death)
remains suspended upon a knowledge of it
for dismission is a prohibition from action
and prohibition in injunctions respecting
any matter, do not operate until after know-
ledge of them, as in the case of the commands
and prohibition of the LAW.
The manager, after being apprized of his
dismission, may still convert what remains
on his hands into money — IF the proprietor
of the stock dismiss the manager, and he be
apprized thereof, he may nevertheless sell
such of the Mozaribat-stock as consist of
chattels and effects, because his dismission
fiom the agency is not preventive of a sale
of articles of that kind, since he has a right
to profit, which cannot be obtained otherwise
that by a division ; and this can be effected
only by turning the subject of the stock into
species. — From this necessity, therefore he
is at libery to sell such stock : but after
the sale, it is not lawful for him to make any
purchase whatever with the price he procure
for these effects ; because there is no necessity
for his so doing, and the sale is admitted
only from necessity, as has been already ex-
plained.
But if it have been already converted into
money, he cannot transact, with it. — IF the
proprietor of a stock, wh^ch had originally
consisted of dirms or deenars, dismiss the
manager at a time when it has been reduced
to specie, and the manager be apprized
thereof, in that case he is no longer entitled
to act with regard to it, since there exists no
further necessity for his so doing.
Unless this money be of a species different
from the original stock.— in which case le
may contract it into money of the same species.
— THE author of the Hedaya remarks that
the law here proceed on the supposition that
the stock has been converted into the very
same specie with the original stock : but that,
if it should have been converted into specie
of a different denomination (as if the stock
had originally consisted of deenars, it be
now converted into dirms, or vice versa), the
manager is, by the benevolence of the law,
allowed the liberty of selling it for the same
specie as the original stock ; because it is
incumbent upon the manager to return a
similar to the original stock, which is im-
practicable otherwise than by selling what
he has on hand for the same specie as the
original stock ; and also, because, as the
profit cannot be ascertained until the pro-
perty on hand be converted into something
of the very same nature as the original stock,
the case becomes exactly the same as if the
property consisted of goo s and effects. — It
is to be observed that all the rules here laid
down with respect to the dismission of a
manager are applicable to the case of the
death of the proprietor of the stock. — Thus,
if the proprietor should die, the manager is
entitled to sell the Mozaribat stock, where it
consists of goods and effects : — but he is not
allowed afterwards to purchase any thing
whatever with the price so obtained. If, on
the other hand, the stock has been turned
into dirms or deenars, he is not entitled to
act with respect to it, provided the money
into which it is converted correspond with
the specie of the original stock : but if it be
different from the specie of the original stock
he is at liberty to convert, by sale, into the
same specie with the original.
//, at the dissolution of the contract t the
stock consist of debt, the manner must be
compelled to collect them where any profit
has been acquired. — IF the proprietor and
the manager dissolved the contract, and the
stock should at that time consist of debts
due from other, in this case, where any
profit has been acquired, the magistrate
must compel the manager to possess him-
self of these debts; since he is held to be
equivalent to a hireling, and his profit
to be like hire. But if no profit have been
acquired, it is not incumbent upon the
manager to receive payment of these debts ;
since he is merely a voluntary agent, and
no compulsion can be used for the fulfilment
of a voluntary engagement (as where a
person makes a grant to another without
delivering the thing granted, in which case
the donor cannot be compelled to make
delivery of the grant). The manager, how-
ever, is in this case to be instructed to
appoint the proprietor agent in his behalf
for the receipt of these debts ; for as the
right of the contract appertain to the con-
tractor, it is indispensably necessary that
he thus appoint the proprietor his agent, to
prevent the loss of his right. Mohammed,
in the Jama Sagheer, observes that "the
manager ought to be instructed to make a
transfer of his claim upon the debtors to
the proprietor ;" the meaning of which also
is, that he should appoint the proprietor his
agent for the receipt of the debt -; because if
such transfer were sufficient, the proprietor
must necessarily be injured in case of the
debtors not acceeding to the same. It is to
be observed that this is the rule in all cases
of agency. Thus, when an agent for sale
(for instance) is dismissed, he must be told
to appoint his constituent agent for the
BOOK XXVII —CHAP. IV.]
MOZARIBAT
465
receipt of the debt, in the manner above
mentioned. A broker, however, must him-
self be compelled to receive any debts that
may be, due because with brokers the custom
is to act for hire.
All lost upon the stock is placed against
the profit —WHATEVER may be lost or
destroyed, of the Mozaribat stock, must be
placed ti the account of the profit, and not
of the original stock, because the profit being
a dependant, it is most eligible to refer the
loss to it ; in the same manner as a loss in
property subject to Zakat is referred to what
is exempt,* and not to the actual Nisab, as
the exempt property is a dependant of the
Nisab
IF more than the profit be lost, the respon-
sibility does not fall on the manager, as he
is merely a trustee.
// //it? profit be divided previous to a re-
storation of the capital and any accident
afterwards befell the stock, the manager must
return the portion of profit he had received. —
IF the stockholder and the manager devide
the profit between them, and continue the
contract in existence as before, and the
whole or part of the stock be afterwards
lost, the manager must, in that case, return
the profit to the proprietor, in order that he
may appear to recover this capital ; because
a division of the profit pervious to a restora-
tion of the capital is not valid, since the
profit cannot be ascertained until the pro-
prietor shall have recorded his capital for
the capital Is the principal, and the profit
the dependant ; and hence, when what re-
mained in the hands of the manager is lost
or destroyed, as he is in this case subject to
no responsibility (it being only a trust with
him), it follows that what he and the pro-
prietor had before taken possession of is
capital, and consequently that he is respon-
sible for the portion he had taken, and that
the portion taken by the proprietor as also
accounted as part of the capital
The rranager is not responsible for defi-
ciency.— IF, when the proprietor has received
back the whole capital, any excess remain,
such excess must be divided between him and
the manager, as being profit : but if there
be a deficiency, no compensation is due from
the manager, as he is only a trustee.
The profit received by the manager is no
way implicated, with respect to any new
contract between the same parties — IF the
manager and the proprietor, having divided
and taken the profit, and annulled the con-
tract of Mozaribat, should again enter into
a new contract of Mozaribat and the stock
be afterwards lost, in this case the profit
gained upon the first Mozaribat is not to be
returned to the proprietor, because that
Mozaribat was completed, and the second
Mozaribat is a new contract ; — and the de-
struction of the stock of the second Moza-
ribat cannot effect the first ; — in the same
•Arab. Afoo.— Sec Vol. I. p. 43.
manner as if the proprietor should have
given some other property than that which
was the subject of the former contract to the
manager, in which case, if the said addi-
tional propertv should be lost, it doe* not
affect the contract ; and so also in the case
in question.
CHAPTER IV.
OF SUCH ACTS AS MAY LAWFULLY BE PER-
FORMED BY A MANAGER.
A manager may sell the stock either for
ready money, or upon tru t.-— IT is lawful
for a manager to sell the stock either for
ready money, or upon trust ; because these
acts are in the na ure of traffic, and, as
such, are included in an absolute contract.
— The period of trust, however, must not be
extended beyond what is customary amongst
merchants (such, for instance, as a period
of ten years) ; because he is only permitted
to act according to the common practice, and
custon of merchants ; whence it is that he
may lawfully purchase a quadruped for
conveyance ; but he can only hire a boat :
for such is the custom among t merchants.
ACCORDING to the Rawayet Mashoor. a
manager is at liberty to give the privilege
to trading to slave whornc he may have
purchased with the stock, since this is in the
nature of traffic.
| Or entrust a slave with the management
of it : or (having sold it for icady money)
may grant a suspension of piymsnt.—If a
manager should sell part of the stock for
ready money, and afterwards admit of a
suspension in the payu-ent, it is lawful
according to all our doctors : — according to
Haneefa and Mohammed, because, as an
agent is permitted to grant a suspension of
payment, a manager, as having a share in
the profit, is entitled to do so a fortiori (the
manager, however, is not responsible be-
cause, as he has a power of dissolving the
sale, and afterwards selling the thing upon
trust, the deferring of payment is accor-
dingly lawful : contrary to an agent, as he is
responsible to his constituent for the price of
what he bells, because he is not at liberty
to dissolve a sale and sell the article over
again upon trust) :— ar.d according to Aboo
Yoosaf, because a manager may, if he please,
annul the sale, and sell the ' article over
again : contrary to an agent, who has no
power of dissolving a sale.
Or allow the purchaser to transfer the
payment upon another person. — If a manager
should sell something to Zeyd upon trust-
and Zeyd, with the consent of the manager,
should transfer the payment ot the price
upon Omar, this is lawful, whether Omar
be rich or poor, because transfer of debts is
customery amongst merchants.— It is other.
466
MOZARIBAT
[VOL. III.
wife where a guardian assents to such a
transfer with respect to the property of his
orphan ward, as he cannot lawfully accept,
in his ward's behalf, of a transfer upon a
person that is poor ; because the interest of
the orphan is what must be consulted
(whence the power of a guardian is restricted
to what may conduce to the interest of his
ward; ; and as the acceptance of a transfer
upon a person that is poor is debtructwe of
the orphan's interest, it is therefore illegal.
The acts of manager are such as he is
empowered to perform by the contract. —
THE acts of a Mozarib, or manager, are of
three kinds. I. Such as he is competent to
perform in virtue of the absolute contract of
Mozaribat ; including all deeds partaking
of the nature of Mozaribat, or of its depen-
dences ; such for example, as agency for
purchase or sale, because of the necessity
lor those acts ; and also pawn, as this is in
the nature of a discharge or satisfaction ;
and like wise deposit, hire, entrusting in the
manner of Bazat, and also travelling with
the stock, as before mentioned.
Or in virtue of general and discretionary
power v erst ed in him by the proprietor, — II,
SUCH deeds as he is not competent to per
from in virtue of the absolute contract, but
in virtue of a general power granted him by
the proprietor, to act agreeably to his own
judgment and discretion ; including all
such deeds as may have a probable con-
nexion with a contract of Mozaribat ; and
which are accordingly held to be connected
with it, when there exists any argument for
their being so ; — such as the giving of the
stock to another in the way either of Moza-
ribat, or of partnership, or the mixing of it
with the manager's own property, or with
that of another ;— to which acts a manager
is not competent, merely in virtue of the
absolute contract, except where something
argues a connexion between the act and the
contract ; because it is presumed that the
proprietor of the stock intends that the
manager alone should be his partner, and
not any other person ; and these acts are not
in the nature of tralftc (as traffic does not
depend upon such acts), and consequently
are not comprehended in the absolute con-
tract : yet, as they are all instruments of an
increase of profit, and are therefore admis-
sible in a contract of Mozaribat, they are
accordingly included in the contract, where
any argument exists of their so being ; and
the power granted to the manager by the
proprietor " to act according to his own
discretion/' clearly argues thus much.
Or such as he is not empowered to perform
in either way. — III. SUCH deeds as the
manager is not competent to perform, either
in virtue of the absolute contract, or from
the discretionary power granted him by the
proprietor, being neither in the nature of
traffic, nor having any probable connexion
with the contract, but such as he may per-
from in case of an express power from the
proprietor of the stock. These are termed
Istidanit * ; such as where a manager pur-
chases something in exchange for dirms and
deenars, after having laid out the whole
capital in the purchase of goods and effects
in which case the transaction relates entirely
to the manager, and he is entitled to all the
profit as well as subject to the loss or debts
that may result from it : or, where a manager
lays, out, in purchasing goods, more than the
amount of the capital, in which case what
is tantamount to the stock is considered as
belonging to the Mozaribat ; and the profit,
loss, or debts resulting fron? the excess
I relate solely to the manager : or, where the
j stock consists of dirms and deenars, and the
i manager purchases something in exchange
; for articles of weight, measurement of
i capacity, or of s le ; for, in that case, as
the manager makes the purchase with
something else than the stock, it is con-
sidered as an Istidanit, and operates entirely
with respect to the manager : that is to say,
the proht. loss, and debts arising from it,
I relate entirely to him, and not to the pro-
prietor of the stock ; the reason of which is,
that Istidanit is a transaction with respect
to other property than the capital ; and as
the agency is confined to the capital, the
manager is of course not competent to such
transaction. — Moreover, the property, in this
case, exceeds the amount of that which was
the subject of the contract, to which the
proprietor has not assented : and although,
| in such excess of property, there be advan-
i tage: yet it is not free from the risk of loss,
j and of its producing debts. If, however
i the stockholder give his assent to the
Istidanit, then the thing which the manager
may have purchased is participated between
him and the stockholder, in the manner of a
Shirkat Wajooh, or partnership upon per-
sonal credit,f which signifies, where two
persons are partners without either stock or
labour, and purchase something upon credit,
to be paid for at a future period, and sell it
again. Of the third species of acts in Mo-
zaribat is also the taking of Sifatja, which
is a species of Istidanit, and the giving of
Sifatja, which resembles a loan. — Sifatja
means the delivery of property to another
by way of loan, and not by way of trust, in
order that that other may deliver it to some
friend of his , and the object cf it is to
avoid the dangers of the road.— In the same
manner also emancipation, either in ex-
change for property, or without property in
exchange, and contracts of Kitabat, are of
the third species of acts in Mozaribat, as
not being in the nature of traffic ; — and the
same of gifts, loans, and charities, which are
mere gratuitous acts.
A manager is not allowed to contract male
* Anglice. — Desiring to borrow. — In its
common acceptation, it signifies contracting
debt, on behalf eitrer of one's self or of
another.
t See Vol. p. 226,
MOZARIBAT
467
and female slaves (forming a part of the
st >ck) in mainage to each other. — IT is
not permitted to a manager, according to
Haneefa and Mohammed, to join in mar-
riage male and female slaves which are of
the stock of the contract. — It is recorded as
an opinion of Aboo Yoosaf. the he may
contract in marriage a female but not a
male slave, because the bestowing of a
female slave in marriage is in the nature
of acquisition; since her d^wer is obtained
from it, and her maintenance annulled. —
The argument of Haneefa and Mohammad
is, that the bestowing of a female slave in
marriage is not in the nature of traffic, and
a contract of Mozaribat includes only agency
in such things as relate to traffic, whence
this is the same as the making a slave
Mokatib; or the emancipating him in ex-
change for property ; for in both these cases
there is an acquisition of property ; but as
neither of them relates to traffic, they are not
included in a contract of Mozaribat ; and so
aUo in the case in question.
Any part of the stock delivered by the
manager of the proprietor in the manner of
a Bazat. still continues to appertain to the
Mozaribat stock. — IF the manager deliver
any part of the Mozaribat stock to the
proprietor as a Bazat, and he make purchase
and sale with it, it continues to belong to
the Mozaribat stock, in the same manner
as before. Ziffer says that the Mozaribat
is annulled ; because the proprietor, in this
instance, acts with what is his own, and he
is incapable of being the manager's agent
in work which he performs with his own
property ; the proprietor, therefore, on this
occasion, may be said to have taken back
so much of the Mozaribat stock ; whence
it is that a contract of Mozaribat is not
valid where the labour of the proprietor
is stipulated for at the time of making
the contract. The argument of our doctors
is, thatafttr the Mozaribat stock has been
duly delivered to the manager, and taken
possession of by him; and the manager has
thus acquired a right of transacting with
it, the proprietor is fully capable of acting
as an agent on behalf of the manager, in
transacting with the stock ; and as making
it over in the way of Bazat amounts to a
commission of agency, it follows that (in
this view) the proprietor cannot be considerec
merely as receiving back his stock It is
otherwise where the proprietor's uniting in
the management is made a condition of the
contract, originally, as this is repugnant to
the delivery of the stock to him for the
purpose of management, and also to hi
taking possession of it. It is also otherwise
where the manager makes over the stocfc
to the proprietor in the way of Mozaribat
which is not lawful ; because a contract o
Mozaribat is a contract of partnership in
the profit derived from the stock of th
proprietor, and the labour of the manager
and, in the case in question, none of thi
stock appertains to the manager ; whenc
f this were allowed, it would follow that
both the stock and the labour proceed from
>ne party , and this defeats the use of the
ontract.
OBJECTION —Making it over as Bazat also
defeats the use of a contract of Bazat, as a
xmtract of Bazat signifies the stock being
bund by one party, and the labour by
another ; and if, in the case in question,
his were admitted, it would follow that
)oth the stock and the labour proceed from
one party.
REPLY. — Bazat signifies, simoly, agency ;
and as a manager is endowed with a power
of transaction, it follows that his delivering
the stock, as a Bazat, is a commission of
agency, proceeding from him, in regard to a
thing concerning which he is empowered.
It is to be observed that, the secondary
Mozaribat not being valid, the proprietor's
management with the property still remains
subject to the orders of the manager ; and
hence the primary Mozaribat is not annulled.
No part of the stock delivered by the
defrayed unless he travel. — IF the manager
transact his business in his own city, his
mamtenence does not fall upon the stock
If, however, he travel with it, his provisions
and clothing are to be furnish d out of the
stock ; — and the same, also, of his convey-
ance (that is to say, it is also lawful for him
to purchase or hire a quadruped to carry
him from place to place at the expense of
the stock), for this reason, that a subsistence
is due to him on account of his confinement,
in the same manner as the subsistence of a
Kazee, who, as being in a state of confine-
ment, in the exercise of his public duties,
is entitled to a recompense from the public
treasury, — or like a wife, who is entitled
to subsistence from her husband, because
of her being in his custody : — for the
manager, so long as he remains in his own
city, resides there merely as it is his home,
and not on account of the Mozaribat in
particular : but upon his travelling he be-
comes confined on behalf of the Mozaribat,
and is therefore entitled to subsistence out
of the Mozaribat stock. — It is otherwise
with an hireling, who is not entitled to
any subsistence although he travel because
he is already entitled to a compensation,
namely, his wages, which are certain, and
for which, if he were subsisted out of the
stock entrusted to his management, there
would be no absolute necessity: — whereas a
manager, on the contrary, is not entitled to
anything but his share of the profit : but
profit is uncertain (in other words, it is
possible that a profit may be gained ; and it
is also possible that he pr >fit may be gained) ;
if, therefore, the manager were obliged to
furnish his own maintemnce, he might be
a loser. —It is otherwise, also, in a case of
invalid Mozaribat, because the manager, in
such a case, is entitled to wages : and it is
likewise different from a case of Bazat, since
a person who undertakes the management of
a bazat gives his labour gratuitously, and is
468
MOZARIBAT
[VOL. III.
therefore not entitled to a subsistence. — It
is to be observed that if, on the manager's
return into his own city, there remain any
victuals or clothing in his hands, he must
return them into the Mozaribat stock, since
his right to those articles no longer remains,
because of his return into his own city .
To a distance beyond a day's journey from
the usual place of his abode. — IF a manager
go forth from his place of residence to a
distance short of what constitutes a journey,
his maintenance does not fall upon the
stock ; for where he goes only to such a
distance as that, if he set off in the morning,
he may be the evening return and pass the
night at home with his family, he is as any
other merchant of the place. — If however,
he go to such a distance as not to be able to
return home the same evening, his mainten-
ance is due from the stock, since he is absent
upon the business of the Mozaribat, — Nifka,
or subsistence, signifies such things as are
expended in the supply of our daily wants,
such as meet, drink, and clothing ; and
among these things, also, is the hire of a
washerman, and other servants, and the
maintenance of a quadruped for riding ; and
oil for anointing, where that is commonly
used, as in Mecca. — It behoves the manager
not to expend any of those articles of subsis-
tence in a degree beyond what is customary ;
insomuch that, if he exceed in his expenses
what is customary among merchants, he is
responsible for the excess. Medicine used
by a manager, however, must be furnished
at his own cost, according to the Zahir
Rawayet. It is recorded from Haneefa, that
medicine is included in the subsistence :
because this is taken for the preservation
of health ; and as it is impossible that he
should engage in commercial transactions
unless he be in health, it consequently par-
takes of the nature of subsistence. — The
reason for what is said in the Zahir Rawayet
upon this point is, that the necessity of sub-
sistence is known and certain. Medicine, on
the contrary, is necessary only in case of
supervenient sickness ; and as sickness some-
times occurs, and sometimes does not occur-
it follows that medicine is not part of main-
tenance ; and hence it is that, although a
wife's maintenance must be furnished by her
husband, yet she finds herself in medicine
at her own expense.
And it is defrayed out of the profit, not
out of the stock. — WHEN a profit is gained,
the proprietor first takes the whole capital
stock, and then the remainder is divided
between both the parties according to stipu-
lation ; the subsistence of the manager,
therefore, is taken from the profit, and not
from the capital, although the manager
should have expended out of the capital for
his subsistence.
All expenses incident to the sale of stock
must be defrayed out of that. — IF the manager
sell goods and effects in the way of traffic, he
must charge the expense attending these
goods and effects (such as porterage and
brokerage) to the account of the capital
stock : — but he is not to charge the capital
with what he expends upon himself for sub-
sistence ; for this reason, that it is the cus-
ton of merchants to charge the former to the
account of their capita/, but not the latter ;
and also, because the former enhances the
value of the goods, but not the latter.
All expenses upon articles purchased which
do not substantially add to the article, are
voluntary on the part of the manager. — IF a
manager have in his hands one thousand
dirms, and lay them all out in the purchase
of cloth, and expend one hundred dirms of
his own property in bleaching and porterage
and the proprietor of the stock had desired
him to act according to his own discretion,
— in this case the manager is accounted to
have acted voluntarily, because as he hereby
subjects the proprietor of the stock to a debt,
it follows that the proprietor's instruction to
him to act according to his own discretion
does not include a transaction of this nature,
as was formerly explained. — If, on the other
hand, the manager, in the case i-n question,
expend one hundred dirms of his own in
dying the cloth red, he is a partner in the
excess occasioned by the dying, because the
colour is a substantial property existing in
the cloth : hence, when the cloth is sold, the
manager receives his share in respect to the
colour ; and also his proportion of the cloth,
as undyed, according to the contract of
Mozaribat : contrary to the case of bjeach'ng
and porterage, as that does not occasion any
additional substantial property to exist in
the cloth ;— whence it is that if any usurper
bleach cloth which he has seized, without
the consent of the owner, and the value be
enhanced by the bleaching, yet the proprietor
is at liberty to take back the cloth without
making him any compensation ; — whereas, if
the usurper dye the cloth red or yellow, the
owner is not at liberty to take it back with-
out making a compensation, but has it at his
option either to take the cloth, allowing the
usurper the difference occasioned in the value
by dying, — or to take an indemnification for
ths value of the cloth as it stood at the time
of dying, and suffer it to remain with the
usurper. It is to be observed that, on the
manager becoming a partner in the cloth in
consequence of the dying, he is not respon-
sible for any things, because the proprietor's
direction to him, "to act according to his
own discretion", comprehends a liberty to
manager to mix his own property with
the Mozaribat stock ; as was before men-
tioned
Section.
Case of loss of the stock after a profit having
been acquired and a debt incurred upon it. —
IF a manager, having one thousand dirms in
his hands, under an agreement of half the
profit, purchase linen (for instance) to the
amount of one thousand dirms, and sell the
same for two thousand dirms, and again pur-
chase a slave for two thousand, — and should
BOOK XX VII— CHAP. IV.]
MOZARIBAT
469
n-'t pay the price of cither article (that is, of
the cloth, or of the slave) until such time as
these two thousand dirms perish in his hands,
in this case the proprietor of the stock must
make satisfaction to the amount of fifteen
hundred dirms, and the manager to the
amount of five hundred; and one fourth of
the slave appertains to the manager, and
three fourths to the Mozaribat stock.-— The
compiler of the He daya remarks that what is
here said is the necessary result of the case ;
for the whole of the price is incumbent upon
the manager (since he is the contracting party
in the purchase) ; but yet he is entitled to
call upon the proprietor of the stock for
fifteen hundred dirms ; the proprietor, there-
fore, is responsible for fifteen hundred (at
the end of the transaction, not at the begin-
ning of it), for this reason, that when the
Mozaribat stock* was converted into cash, a
profit appeared upon it, of which five hun-
dred dirms go to the manager : consequently
upon his purchasing the slave for two thou-
sand he purchases one fourth of the s'ave
on his own account, and three fourths on
account of the Mozaribat (according to the
division of the two thousand) ; and upon the
two thousand perishing, the price of the slave
is due from him, as it is he who made the
bargain for him; but he is entitled to call
upon the proprietor for three fourths of the
price, because he acts as his agent in the
purchase thereof. The manager's share,
which is one fourth, is detached fro-n the
Mozaribat stock for that is secured (that is
to say, is incumbent upon the manager to
give one fourth of the price to the sellers
[of the slave and cloth] after the destruction
of the stock) ; but the Mozaribat stock is a
trust ; and a property secured is inconsistent
with a property in trust : it is therefore in-
dispensable that the manager's share be so
detached ;— and three fourths of the slave
continue in the Mozaribat stock, for in that
there is nothing inconsistent with Mozaribat ;
—consequently the capital then becomes two
thousand five hundred, because the proprie-
tor of the stock has given to the manager, in
the first instance, one thousand dirms, and
fifteen hundred in the second instance —The
slave, however, cannot be sold, so as to make
any profit of him, for less than two thousand
because he has been bought for two thousand,
—With respect to what is above said, that
the fourth of the slave is detached, and
the other three fourths continue in the Moza-
ribat stock,"— the use of this appears where
the manager sells the slave (suppose) for four
thousand dirms,— for in this case the capital,
which is two thousand five hundred dirms,
must be deducted from that proportion which
appertains to the Mozaribat, which is three
thousand dirms.— and consequently a profit
or five hundred remains to be shared between
the parties.
Cases of sale by the employer to the
•Namely, the linen.
manager. — IP the manager be possessed
of one thousand dirms, and the proprietor
of the stock purchase a slave for five hun-
dred dirms, and sell him to the manager
in return for the capital stock (namely,
one thousand dirms) he [the manager] is
considered as selling him [the slave] by a
Morabihat sale at the rate of five hundred
dirms ;* for such sale is lawful, because of
the difference of views in it,— since the view
of the proprietor of the stock is to obtain one
thousand dinns, at the same time securing
the continuance of the Mozaribat contract ;
and the view of the manager is to obtain pos-
session of the slave. — The sale, therefore is
lawful, that the ends of both parties may be
answered, although it be a sale of property
belonging to the party for property belonging
to the party. — There is however, in this
sale, a semblance of illegality ; since the
slave does not, in fact, pass out of the pro-
perty of the proprietor of the stock ; and a
semblance is connected with a reality in any
matter concerning which caution is requisite.
— Now caution is requisite in a Morabihat
sale, since the points on which it turns are
confidence, and a caution against the sem-
blance of deceit : and accordingly in the
Morabihat sale, regard is had to the lowest
price, which is five hundred dirms.
Or by the manager to the employer. —
IF a manager, possessed of stock to the
amount of one thousand dirms purchase *
slave for those thousand, and sell him to his
employer for 'welve hundred, ha is con-
sidered as selling him, by a Morabihat sale,
for eleven hundred, since the contract in
question is considered, with respect to one
half of the profit (which is the proprietor's
share) as non-existent : — as was formerly
explained in treating of Morabihat sales.
Cases of a slave purchased by the manager
and who is afterwards quality cf homicide. —
IF a manager be possessed of one thousand
dirms, under a condition of half the profit, and
with these thousand purchase a slave valued at
two thousand, and the slave ^accidentally slay
a person, three fourths of the atonement rest
upon the proprietor of the stock and one fourth
upon the manager ; — because, at the atone-
ment is an expense attendant upon the right
of property, the proportions of it are, conse-
quently, according to the proportions of right
of property. Now the property is here held
between the parties in four lots, three of
which appertain to the proprietor of the
stock, and one to the manager ; because, upon
the capital being resolved into one specific
article, the profit (namely, one thousand
dirms) becomes evident ; and that is between
the two in equal shares ; and one thousand
(the original capital) appertains to the proprie-
tor of the stock, as the value of the slave is
two thousand. Upon each party paying his
proportion of the atonement, the slave be-
comes excluded from the Mozaribat stock :—
•See sales of profit.
470
MOZARIBAT
[VOL III.
the manager's share in him ; because, in the
present instance, his responsibility with res-
pect to that share operates upon him, and
hence that share is no longer as a deposit
with him ; and Mozaribat stock is a deposit,
as was formerly explained : — and the pro-
prietor's share; because, upon the magistrate
decreeing the atonement to be divided be-
tween both, the slave also becomes divided
between them ; and a contract of Mozaribat
is dissolved by a participation in the stock
— It is otherwise in the case exemplified
in the beginning of this section (where two
thousand dirms perish in the manager's
hands), for three the three fourths which
form the share of the proprietor of the stock
do not become excluded from the Mozaribat
contract. — The difference between that case
and the case now under consideration, exists
in three shapes. I. In the former case the
responsibility of traffic only is incumbent ;
and responsibility of traffic is not repugnant
to Mozaribat, since Mozaribat itself is a
branch of traffic ; — whereas, in the case in
question, responsibility for offence is incum-
bent ; and responsibility for offence is not a
branch of traffic. — II In the former Cise the
whole price is incumbent upon the manager,
although he have a right to revert upon the
proprietor of the stock ; — in that instance,
therefore, there is no necessity for division. —
III. The slave, in the instance of offence,
escapes, as it were, from the property of both
parties, in consequence his offence, and
their paying an atonement for him, is, as it
where, a purchase of him d«» novo. — He. there-
fore, no longer appertains to the Mozaribat
stock, but is held between the parties in four
lots, performing service to the manager one
day, and to the stock proprietor three days,
alternately— contrary to the former case.
The manager bargaining for an article,
and then losing the stock, must have recourse
to his employer for another stock, to enable
him to fulfil his engagement. — IF a manager
be possessed of a thousand dirms, and there-
with purchase a slave, but neglect paying
the price to the seller, and the thousand
dirms perish in his hands, the proprietor of
the stock must, in this case, made over an-
other thousand to the manager, and the Mo-
zaribat stock is then two thousand dirms. —
The reason of this is, that as the stock is
merely a deposit with the manager, he there*
fore cannot be considered as having duly re-
ceived the price in virtue of his seisin [of the
one thousand dirms], since a receipt in virtue
of seisin is not established unless it involve
responsibility —Now, as a due receipt of the
price, by the manager, is not established, it
follows that he is entitled, even repeatedly,
to take the price from the stock proprietor,
that is to say, if he take the price from the
proprietor, and it be again lost in his hand,
he may again take the price from him ; and
so on, repeatedly, until the seller's demand
be satisfied ;— and the whole of what the
proprietor thus makes over to the manager
becomes stock.— -It is otherwise in the case of
£an agent commissioned to purchase a specific
slave for one thousand specific dirms, — where
the constituent delivers the price to the
agent before the purchase, and they are lost
in his hands after the purchase ; for in this
case the agent cannot take the price from his
constituent more than once, since it is possi-
ble to consider him as having already made
a due receipt of the price from his consti-
tuent : for agency is not repugnant to re-
sponsibility, but is rather involved with it ; —
as where, for instance, an usurper is com-
missioned by the proprietor to sell the thing
he has usurped. — It is to be observed that,
in the case of agency, as here adduced, the
agent reverts to his constituent only once. —
If, however, the agent were first to make the
purchase, and then to receive the price from
his constituent, he cannot afterwards revert
to him at all ; because, as the agent becomes
endowed with a right to cail upon his consti-
tuent on the instant of the purchase, it fol-
lows that his seisin of the price, after that
was due, is a complete receipt on his p^rt : —
he is therefore considered as having duly
received the price, in virtue of his seisin of
it after the purchase : — on the contrary, what
the constituent makes over to the agent
before the purchase is merely a deposit in
his hands ; and after the purchase it still
remains a deposit with him, since, in this
instance, no cause of responsibility appears
even after the purchase. — The agent, there-
fore in this case, is not considered as having
duly received the price ; and consequently,
upon that being lost in hu hands, he may
take it again from the purchaser : — but if,
again, it be lost in his hands, he cannot
again revert upon the purchaser, since here
a due receipt has been established, as before
explained.
CHAPTER V
OF DISPUTES BETWEEN THE PROPRIETOR OF
THE STOCK AND THE MANAGER
In disputes respecting the acquisition of
profit upon the existing stock, the assertion
of the manager is to be credited. — IF the
manager have two thousand dirms in his
hands, and say to the stock-proprietor, "you
entrusted me with one thousand, and one
thousand has accrued as profit/' and the
proprietor reply, "I entrusted you with two
thousand/' — the assertion of the manager
is to be credited. — Haneefa was at first of
opinion that the assertion of the proprietor
should be regarded : and such is the doctrine
of Ziffer ; because the manager here appears
as a plaintiff, claiming a partnership in the
profit, — and the proprietor as a defendant,
denying his claim ; and the assertion of the
defendant is to be credited. — Haneefa, how-
ever, afterwards retracted, this opinion, and
admitted that the assertion of the manager
BOOK XXV IN.]
MOZARIBAT
471
must be credited ; because the dispute here
turns upon the amount received ; and con-
cerning that the assertion of the receiver
must be credited, whether he be merely a
trustee, or otherwise, since he best knows
what he was received.
But m disputes concerning the proportions
of profit, that of the proprietor. — IF the
parties dispute, not only concerning the
amount of the stock, but also concerning
the proportion of the profit, — the manager
affirming it to b^ between them in equal
shares, and the proprietor asserting it to be
in three lots, two for himself and one for the
manager, the assertion of the proprietor is
to be credited ; because the manager here
claims profit in virtue of a condition, which
condition operat.s to the prejudice of the
proprietor ; his assertion, therefore, is to be
credited, — But if either of the two produce
evidence, his declaration must be admitted
as evidence is positive proof.
As also in disputes concerning the nature
of the agreement under which the stock was
entrusted to the manager, — IF a person,
having one thousand dirms in his hand, say,
' such a person entrusted ms with these in
the way of Mozaribat. under a condition of
half the profit," — and the person alluded to
say, "I gave him the one thousand dirms as
Bazat," the declaration of the proprietor is
to be credited ; because the manager is plain-
tiff in this instance since he either claims
from the proprietor a recompense for his
service, or alleges a condition to his pre-
judice, or a partnership in the profit, — all of
which the proprietor denies.
IF a person, having in his hands one thous-
and dirms, the property of another, assert
that "those thousand had been lost to him
by that other," and the other assert that
"he entrusted him with them in the manner
of Bazat, deposit or Mozaribat." the asser-
tion of the proprietor is to be credited on the
one hand, or evidence adduced by the person
in question on the other ; — because he asserts
his having obtained possession of the sum
in dispute, by a loan ; which the proprietor
denies
// the proprietor assert a restriction, the
denial of the manager is credited. — IF the
p-oprietor of the stock advance an allege-
tion, against the manager, of restriction to
one mode of traffic, affirming, for instance,
that "he had directed him to trade in cloth
and in no other article," — the assertion of
the manager, upon oath, must be credited, —
for, as universality is the original thing in
a contract of Mozaribat. and restriction can-
not be impossed in it but by particular stipu-
lation, if follows that the assertion of the
party \*ho rests upon the original thing
must be credited. It is otherwise in agency,
for in that restriction is the original thing.
But if each allege a different restriction,
the allegation of the proprietor is credited. —
IF the proprietor allege a restriction to one
particular mode of traffic, and the manager
allege a rectriction to another particular
mode, the assertion of the proprietor muit
be credited ; for here b9th parties agres in
the contract being restricted, and the pro-
prietor's admission , in this particular, is
pleaded against him.--His assertion, there-
fore, is to be credited on the one hand; or
evidence adduced by the manager, on the
other ; — for the manager stands in need of
evidence to disprove his responsibility ; but
the proprietor does not stand in need of
evidence.
In disputes concerning restriction to time,
the evidence which proves the latest date is
preferred — IF the proprietor allege a restric-
tion in point of time, and produce evidence
thereto, and the manager allege a restriction
to another time, and produce evidence there-
to,— the proprietor, on his part, asserting
that "he entrusted him [the manager] with
one thousand dirms, in the manner of Moza-
ribat, for the purpose of purchasing what
in the month of Ramzan" (producing evi-
dence in support of his allegation), — and the
manager, that "he [the proprietor] gave
him one thousand dirms for the purpose of
purchasing wheat in the month of Shawal"
(producing evidence in support of his allcga-
fon), — the evidence which tends to prove
the latest date must be preferred ; because
the condition last stipulated annuls the con
dition first stipulated.
BOOK XXVIII,
OF WIDDA, OR DEPOSITS.
Definition of the terms used in deposit. —
WIDDA, in the language of the LAW, signifies
a person empowering anotht r to keep his
pro erty. — The proprietor of the thing is
styled Modee, or the depositor ; — the person
so empowered, the Moda or trustee : — and
the proper y so left with another, for the
puropos- of keeping it, is styled Widdeeyat,
because Widda literally means to leave, and
the thing in question is left with the Moda
or trustee.
A trustee is not responsible for a deposit
unless the transgress with respect to it. — A
DEPOSIT remains in the hands of the person
who receive charge of it, as a trust, — that is
to say, he is not answerable for it. If, there-
fore, a deposit be lost or destroyed in the
trustee's hands, without any transgression
on his part, he is not in that case responsible
for it; because the prophet has said, 'an
honest trustee is not responsible;" — and also,
because there is a necessity, amongst man-
kind, for deposits ; and this necessity could
not be answered in case of making trustees
responsible, as no one would then accept the
trust . . , .
He may keep it himself, or commit the care
of it to and of this family.— A. TRUSTEE may
either keep the deposit himself, or commit
472 DEPOSITS
for that purpose to some one of his family
such as his wife his son, his mother, or his
father ; because it is evident that a trustee
does not engage to keep the property of
another with more care than he does his
own ; and he sometimes keeps his own him-
self, and sometimes commits it to one of his
family. Besides, there exists an absolute
necessity for committing the trust to his
family, since it is neither possible for him to
remain always in the house, nor, when he
goes out, to carry the deposit with him —For
all those reasons, therefore, the consent of
the proprietor is understood to extend to the
trustee's committing the deposit to the care
of his family.
But if he give charge of it to a stronger
he becomes responsible. — BUT if the trustee
should commit the deposit to the charge of
any other than a member of his family (as if
he were either to hire some person out of his
family, for the purpose of keeping it, — or
to give it in deposit to some one out of his
family), he is then responsible, in as much
as there is a difference between the care of
different people, and it was his own care, and
not that of another, to which the proprietor
assented. Besides, a thing does not involve
its similar ; and hence a trustee is not em-
powered to constitute another the trustee of
the same thing ; in the same manner as an
agent is not permitted to constitute another
agent. (By the term family, in this place,
is to be understood all such as live with the
trustee, or whose maintenance is incumbent
upon him, or his upon them, as a wife or
adult son.)
And so also, if he lodge it in a place of
custody belonging to another. — IF a trustee
lodge the deposit in a place of custody *
belonging to another, he becomes respon-
sible for it ; becomes the lodging it in
another's place of custody is, in efiect, depo-
siting it with that other, — It is otherwise,
however, if he hire the said p'ace ; for in
that instance his lodging it there is con-
sidered in the same light with his keeping
it himself, and therefore does not induce
responsibility.
He is not made responsible by putting it
out of his own possession with a view to the
immediate preservation of it. — IF the house
of a trustee take fire; and he deliver the
deposit to his neighbour, — or if, being in a
boat on the point of siaking, he throw the
deposit into another boat, — and it in either
case be lost he is not responsible, since he
acted only for the preservation of it, and
consequently according to the consent of the
proprietor. But the assertion of the trustee,
in such cases, is not to be credited unless
supported by witnesses, since, upon the
establishment of a cause oi responsibility,
he pleads the existence of a necessity, which
[VOL. Ill,
• Arab, Makan Mohirrez ; meaning a
hest, or other place of security. (See Hirz,)
invalidates the responsibility, and the case i
therefore the same as if he were to plead that
the proprietor had empowered him to consign
the deposit to another.
He becomes responsible on neglecting to
deliver it on demand. — IF the proprietor of
the deposit demand it from the trustee, and
he neglect delivering it to him, being at
the same time capable of such delivery, he
becomes in that case responsible for it, since
his neglecting or refusing to deliver it, under
a capacity to do so, is a transgression .—The
ground of this is, that the demand of the
proprietor clearly indicates his dissent from
the trustee's retaining possession any longer,
and is therefore a dismission of him from the
trust.— Hence th* trustee is responsible, be-
cause of his retaining possession after such
dissent.
If he mix it inseparably with his own pro-
perty, he must make the proprietor a com-
pensation— IF the trustee mix the deposit
with his own property, in such a manner
that a separation becomes difficult, he must
in that case maks an adequate compensation,
and the proprietor (according to Haneefa)
has not the option of sharing the mixed pro-
perty, whether the mixture be of a homo-
geneous nature (such as milk with milk,
what with wheat, or white dirms with white
dirms), or of a heterogeneous nature (such as
oil of sesame with oil of olives, or wheat with
barky). The two disciples allege that where
the mixture is of homogenous articles not
of a liquid nature (such as white dirms with
white dirms, or wheat with wheat), the pro-
prietor of the deposit has the option either
of becoming a sharer with the trustee, or of
taking a compensation for the value ; because
although it b^ imp.ssiblein such a case, for
the proprietor to receive his right with
respect to appearance ; still it is possible for
him to receive it with respect to reality (that
is in effect), by making a division, since, in
all articles of weight, or measurement of
capacity, a delivery by division is equi-
valent to a delivery of the actual article,
according to all authorities. — Such, there-
fore, being the case, it appears that mixture,
in the instance in question, is a destruction in
an ther respect ; and consequently, that the
proprietor of the articles placed in deposit has
the option either of taking a compensation
on the principle of the mixture being a
destruction, or of becoming a sharer (if he
please) on the principle of its not being a
destruction. — The argument of Haneefa is
that mixture is in every respect a destruc-
tion, because of its being an action which
occasions an impossibility of returning the
thing to the proprietor in its original sub-
stance,— In regard to what the two disciples
advance, that "it is possible for the pro-
prietor to receive his right with respect
to reality, by means of a division/' it ii
answered that the proprietor cannot attain
his actual right by means of division,
Besides. division has been instituted
BOOK XXVIII,]
DEPOSITS
473
from necessity, merely as a mode of |
advantage in cases of partnership. Divi-
sion, therefore, is merely an effect of part-
nership, and is incapable of being a cause
of it, for otherwise the principal would
become secondary, and the secondary prin-
cipal.— The result of this disagreement is that
if the proprietor should exept the trus-
tee, where he makes the mixture, by saying
to him "I exempt you from the compensation
due by you on account of the mixture," in
that case, according to Haneefa, his right
becomes entirely cancelled, since (agreeably
to his tenets) the proprietor's right is limited
to the compensation, which he expressly
forgog ; — where as, according to the two
disciples, the proprietor's right of option to
a compensation ceases in consequence of such
exemption, and resolves itself into a share in
the mixed property ; because although by the
exemption, his right of option be destroyed,
still his actual property is not destroyed. —
It is to be observed that the mixture of one
liquid with a different liquid (such as of oil
of Sesame with oil of olives) destroys the
right of the proprietor to a participation in
the mixed property, and fixes and deter-
mines it to a compensation, according to all
our doctors, as such a mixture is a destruc-
tion with respect both to appearance and
reality ; since a division is in this instance
impracticable, because of the difference of
species — Of the same class, according to the
Rawayet Saheeh, are all cases of an admix-
ture of different articles, not liquids, where
the separation is difficult, as in the mixture
of wheat with barley.— In cases where the
separation requires a process, or is attended
with some difficulty (such as if dirms should
be melted and incorporated with others), the
depositor's right to the substance ceases, and
he is entitled to a compensation, according
to Hane.fa, as before stated. Aboo Yoosaf
holds that in this case the smaller is subordi-
nate to the greater (for, according to his
tenets, superiority must be regarded), and
that therefore, the person who possessed the
largest share of the property becomes pro-
prietor of the whole, and liable to compen-
sate to the other tor the value of his quan-
tum. —Mohammed, on the other hand, main-
tains that the proprietor of the deposit be-
comes a participator with the other in either
case, because according to his tenets, species
cannot acquire a superiority over the same
species, as has been already explained in
treating of fosterage.
If the mixture be occasioned bv accident,
the proprietor becomes a proportionate sharer
in the whole. — IF a deposit be mixed with
the property of the trustee, not by any act
of the latter, but by accident (as if a bag
containing tha deposit, and another contain-
ing property of the trustee, should both be
torn, and the contents mingled together), in
that case the trustee becomes a sharer in
the property with the depositor, and i« not
responsible for a compensation, since he did
not commit any act inducing responsibility
They therefore become partners in the
whole according to all our doctors.
// the trustee expend a part, and supply
the aeficiency, by mixture, from his own pro-
perly, he is responsible for the whole. — IF a
tru.-tee expend part of the deposit, and then
produce a similar to what he had expended,
and mix it with the remaining part, in such
a manner that a separation is difficult, he is,
in that case, responsible for the whole of the
deposit ; because the pjrt expended is a
debt due by him, which he cannot otherwise
discharge than in the presence of the owner.
— When, therefore, he mixes his own pro-
perty with the remainder of the deposit, he
in fact destroys that remainder ; as was before
explained.
In cases of transgression respect to the
depo it, the trustee is responsible so long as
the transgression continues. — IF a trustee
transgress with respect to the deposit, by
converting it to his own use (as if, being a
quardruped, he should ride upon it,— or, being
a gown, he should wear it, — or, being a slave,
he should use his services), — or by com-
mitting ic to the care of a stranger, and he
afterwards refrain from the use of it, or re-
ceive it back from the stranger, his respon-
sibility thereupon ceases. Shafei maintains
that he does not become exempted from
responsibihty ; because the contiact of de-
posit ceases and determines immediately on
the extence of responsibility, since respon-
sibility and deposit are irreconciieable : — the
trustee, therefore, in such case, cannot be
exempted until he made actual restitution to
the proprietor. The argument of our doctors
is, thai the order of the depositor to preserve
the property continued to operate, as it was
absolute, and not restricted to any particular
time ; it being understood, in this case, that
the proprietor had generally desired him to
preserve the property, without restricting
such desire to any particular tune.— As,
therefore, the order is still in force, it follows
that the trustee, after abstaining from the
transgression, becomes again trustee, be-
cause the object of the contract was preser-
vation.— The contract, moreover, was .sus-
pended in its effect merely irom the neces-
sity of establishing a branch of it : when,
therefore, the branch is removed, the con-
tract becomes revived in us effect ; in the
same manner as where a person hires another
to guard his property fur a month, and the
person so hired remits his guard for part of
the month, in which case he is entitled to
wages in proportion to the number of days
he did watch.— In answer to Shafei s asser-
tion, that "the trustee cannot be exempted
from responsibility until he make actual
restitution to the proprietor/' it is to be ob-
served that, as the original order still. con-
tinues in force, and the trustee ceases from
his transgression, a recovery of the deposit
is obtained into the possession of the trustee,
who is the substitute or confidant of the
proprietor ; and as this recovery is equiva-
lent to a restitution of it to the proprietor
474
himself, he [the trustee] is consequently not
responsible for it on the ground of destruc-
tion.
// the trustee deny the deposit, upon de-
mand, he is responsible in case of the loss
of it. — IF the proprietor of the deposit de-
mand it of the trustee, and the trustee deny
the deposit, and it be afterwards lost, the
trustee is in that case responsible ; because,
as the depositor, in making the demand,
dismisses the trustee from his charge, if fol-
lows that the trustee, in retaining the deposit
after such demand, is an usurper, and is con-
sequently responsible. — If, also, after the
denial, the trustee should acknowledge the
deposit, still he does not thereby become
exempted from responsibility, because the
contract had been previously done away,
inasmuch as the demand of restitution by
the depositor was a dissolution on his part,
and the denial of the deposit was a dissolu-
tion on the part of the trustee ; in the same
manner as the denial of agency by the agent,
or of sale either by the buyer or seller, is a
dissolution on their part — Now when a
dissolution takes place on both sides, the
contract to which it relates is done away ;
and cannot afterwards be revived, unless by
a new formation, which does not appear in.
the case in question. — In this case, there-
fore, a recovery into the possession of the
proprietor's substitute cannot be understood.
— It is otherwise where the trustee deviates
from his instructions by transgressing upon
the property, and afterwards ceases from
such deviation, and conforms to his orders,
for in this case a recovery appears into the
possession of the proprietor's substitute, as
was before explained.
But not if the denial be made to a stranger.
— IF the trustee deny the deposit to some
other than the proprietor, he is not respon-
sible, according to Aboo Yoosaf (contrary to
the opinion of Ziffer), because denial to any
other than the proprietor may be for the
sake of preservation. The trustee, more-
over is not competent to his own dismission,
unless in the presence of the depositor, or
unless the depositor claim his property from
him. The order for keeping the property,
therefore, still continues in force • — contrary
to where the denial is made to the depositor.
A trustee is at liberty to carry the deposit
with him upon a journey. — A TRUSTEE is at
liberty, according to Haneefa, to carry the
deposit with him when he travels, although
carriage and other expenses be thereby in-
curred.— The two disciples maintain that
that is not permitted to him where carriage
or other expense is incurred. Shafei, on the
other hand, maintains that it is not allowable
in either case, because he considers an order
to keep the article in the common accepta-
tion of keeping, namely, keeping in cities ;
in the same manner as where a person hires
another for the preservation of his goods for
a stated time, in which case the person hired
is not at liberty to travel with the goods, —
or, if he should do so, becomes responsible
DEPOSITS [VOL. Ill
foi them. The argument of Haneefa is, that
the proprietor's commission for preservation
is absolute and unconfined ; and that a plain
is a place of preservation, provided the road
be secured ; on which principle it is per-
mitted to a father or guardian to travel with
the property of their ward. The rea>oning
of the two disciples is that, in case of tra-
velling, where carriage for the deposit is
necessary, the expense of it must fall on
the depositor ; and as it is probable he may
not assent to this, his commission for keeping
the article must, in such a case, be considered
as limited to a city. — The answer to this is
that the circumstance of the expense of re-
moval falling upon the proprietor is of no
moment, as it may be a consequence of an
attention to the preservation of his property,
and the fulfilment of his commission — The
answer to Shafei is that although are articles
chi fly abound in cities, still the keeping or
preserving of them is not particularly con-
fined to cities, but extends alike to cities and
to plains ; since the inhabitants of plains
must necessarily keep their property in
plains — Besides, a removal of the deposit
may sometimes be a desirable object to the
proprietor : as where it is made from a city
in danger to one in security ; or to the par-
ticular city in which the proprietor dwells,
— Now as the keeping of an article is not, in
its common acceptation, limited to cities, it
follpwi that a commission for keeping is not
limited to any particular city. It is other-
wise in a case of hire for keeping, as hire is
a contract of exchange, which requires a
delivery of the subject of the contract
(namely, keeping or guarding) in the place
where the contract is executad
Provided the contract be absolute, the road
safe, arid the journey necessary — IT is to be
observed that this case proceeds on a suppesi-
tion of the contract being absolute, the road
which the trustee travels safe, an . the journey
necessary : for, if the road be dangerous, or
the journey not necessary, the trustee is
responsible, according to all our doctors —
If, also, the journey be not necessary, and
the trustee travel with all his family, he is
not responsible : but if, the journey not being
necessary, he should leave his family be-
hind, he becomes responsible, as in that case
it was his duty to have left the deposit with
his family.
Unless this be expressly prohibited. — IF the
proprietor expressly prohibit the trustee
from carrying the deposit out of the cily, and
he nevertheless carry it put, he becomes in
that case responsible for it, as the restriction
so imposed is a valid one sir ce keeping the
article in a city is most eligible.
In case of a deposit by two persons, the
trustee cannot deliver to either his share, but
in presence of the other. — IF two men deposit
something jointly with another, and one of
them afterwards appear, and demand his
share of the deposit, the trustee must not
give it, unless in the presence of the other
depositor, according to Haneefa. The two
Boox XVII.
DEPOSITS
475
disciples maintain that the trustee must
deliver the claimant his share ; — and the
same is also taid in Ka decree's compendium.
In the Jama Sagheer is said that if three
men deposit one thousand dirms with a
particular person, and two of them after-
wards disappear, the third is not entitled to
take his share, according to Haneefa ; but
according to the two disciples he is entitled
to take it. (It is to be observed that this
difference of opinion relate solely to articles
of weight, or measurement of capacity.) The
argument of the two disciples is tha, the
depositor claims his own share only, and is
therefore entitled to receive it, where it is
attainable, in the same manner as a copartner
in a debt. The argument of Haneefa is
that the person present, in claiming his
on share, necessarily claim half of the
absentee's since he claim a separate and
determinate portion, whereas his right is
indefinite. Now where a right is mixed
indefinitely with another, it is to be rendered
separate and determinate only by means of
division ; but the trustee has no power to
make a division ; and accordingly, if he were
to give the present claimant his share, it is
not account a division by any of our
doctors — It is otherwise in a case of a par-
ticipated debt, because, in that mstanre, the
present creditor claims from the debtor a
delivery of his right, which may be made
without a division, since debt is discharged
by means of similars. — With respect to what
is advance by the two disciples that "thz
depositor is entitled to receive his share
where it is attainable." it may be answered,
that it does not from hence follow that the
trustee is liable to any corpulsion on that
head : — in the same manner as where, for
instance, a person deposits one thousand
dirms with another, who is indebted in one
thousand dirms to a third person ; in which
case, although it be lawful for the creditor
to take his due whereyer it be attainable, still
it is not lawful for the trustee to pay him
with the said deposit.
Two persons receiving a divisible article in
trust, must each keep on half.—lv a perscn
deposit, with two men, an article capable of
division, it is not lawful for either of these
trustee to commit such article entirely to
the other, but they must divide it, and
retain each an half ; whereas, if the article
were incapable of division, either might law-
fully keep it entirely with the consent of the
oth.r. — This is the doctrine of Haneefa; and
such alto is the law, according to him, in a
case of two pawnees, to whom a thing
incapable or a division is jointly pledged ;
for in that case either of them, with the con-
tent of the other, may retain sole possession
of it : — and so likewise, in the case of twc
agents empowered to buy anything, and
entrusted jointly with the purchase money
for in that case, also, one of the parties may
retain the whole of the money with the con-
sent of the other.— The two disciple allege
that it is lawful for one of the parties to take
entire charge, with the consent of the other,
n either case ; for as the proprietor hat
manifested his confidence in the integrity of
both, it, is therefore lawful for either to
leliver the deposit to the other without being
p.«r*~-»-i'hU_ jn the same manner as where the
deposit is incapable of division.— The argu-
ment of Haneefa is, that the proprietor hat
given his approbation to the charge being
united in two, but not to its being vested
entirely in one ; because the act of keeping,
where it relates to a divisible article applies
only to a part of the article, not to the whole.
—-The delivery therefore, of the whole by
either party to the other is without the pro-
prietor's consent ; and the party who makes
;uch delivery is accordingly responsible. —
3ut the receiver is not responsible, since
according to his tenets) the trustee of a
:rustee is not subject to responsioility. It
s otherwise where the deposit is incapable of
division ; for where an article of that nature
is deposited w th two personj, it is impos-
sible for them jointly to be concerned in the
case of it every hour of the day and night,
unless by turns ; and the approbation of the
proprietor, with respect to the whole, is
therefore of necessity construed to extend to
either of them in particular.
Restrictions are not regarded where they
are repugnant to custom or convenience. — IF
the proprietor of a deposit say to the trustee
"deliver not the deposit to your wife," and
he neveitheless deliver it to his wife, he
becomes in that case responsible. — It is
recorded, in the Jama Sagheer, that if the
proprietor prohibit the trustee from deliver-
ing the deposit to any one of his family and
he nevertheless deliver it to one of his family
from any unavoidable neces-ity, he is not
made responsible by having so delivered it ;
— as if, for instance, the deposit be an animal,
and the proprietor prohibit the trustee from
giving charge of it to his slave ; — or as if,
being of the description of things usually
committed to the care of women, he should
prohibit him from delivering it to any of hit
wives. The compiler of the Hedaya remarks,
that as the former of these reports is absolute,
and that quoted from the Jama Sagheer
restricted, the first ought also to be under-
stood as restricted ; for this reason, that it is
impossible to manage the conservation with
an observance of the condition, which i*
therefore nugatory But if she trustee should
not act from necessity ,— as if, having two
wives, or two slaves, the proprietor should
prohibit the delivery to one particular wife,
or to one particular slave, and the trustee
nevertheless commit the deposit to the par-
ticular wife or slave so prohi bited, — he
becomes responsible, since the condition in
this case is useful, as same of the family may
not be trustworthy : and, as the conservation
of the deposit is not inncmpatible with the
observance of the condition, it is therefore
valid.
Or where they relate to the particular
apartment in a house.— IP the proprietor say
476
DEPOSITS
[VOL. HI.
to the trustee. "Keep the deposit in this
apartment of the Sarai," and he keep it in
another apartment of the same Sarai, in that
case he is not responsible for it ; because the
condition was useless, inasmuch as there is
no difference with respect to keeping in
different apartments of the same Serai —(If,
on the contrary, he were to keep it in a
different Serai, he is responsible ; because, as
a difference of Serais occasions a difference
in the keeping, the condition is therefore of
use, and the restriction is consequently
valid.) — If, however, there be an evident
different between two different apartments
of the same Serai (as if, the Serai being
extensive, the apartment prohibited should
be full of holes and crevices), the condition
so made is valid, and the trustee become*
responsible in case of preserving it in that
apartment.
Where the deposit is transferred to a
second trustee, and lost, the proprietor re-
ceives his composition from the original
trustee. — IF a person deposit something with
another, and that other again deposit it with
a third {person, and it he lost in this person's
hands, in that case the proprietor of the
deposit, according to Haneeia, must take a
compensation from the first trustee, not from
the second. The two disciples allege that
the proprietor is at liberty to take the com-
pensation either from the first or second
trustee ; and that, in case he should take it
from the first, he [the first] is not empowered
to take an indemnfication from the second;
but that, in case of his taking it from the
second, the is second then entitled to take
an indemnification from the first. — The rea-
soning of the two disciples is that the second
trustee has received the deposit from the
hand? of a person who has himself become
reponsible,* and is therefore responsible ; —
in the same manner as the trustee of an
usurper ; — that is to say, if an usurper
deposit with any person the goods he has
usurped, and they be lost in the trustee's
hands, the proprietor is at liberty to take
a compensation either from the usurper or
the trustee ; and so also in the case in ques-
tion.—The ground of this is, that the pro-
prietor of the deposit not having given his
approbation to the second deposit ; the first
trustee was guilty of a transgression ; and
the second trustee was also guilty of a trans-
gression in having received it without the
consent of the proprietor. — The proprietor,
therefore, has the option of taking a com-
pensation from either.— -If, however, he take
the compensation from the first trustee, he
[the first trustee] is not in that case entitled
to indemnify himself from the second ; be-
cause, upon paying the compensation, he
becomes proprietor, which constitutes the
second a legal trustee ; and a legal trustee
is not responsible for the deposit.— If, on
•In consequence of the deviation from
is trust.
the contrary, the proprietor take the com-
pensation from the second trustee, he [the
second] is in that case entitled to an indem-
nification from the first ; because, as not
being a legal trustee; he must be considered
merely as an agent for conservation on be-
half of the original trustee; and as such he
is entitled to an indemnification for what-
ever losses he may sustain, connected with
the agency. — The reasoning of Haneefa is,
that the second trustee received the article
from the hands of a trustee, and not of a
responsible person ; because the first trustee
does not become responsible until the thing
be separated from the second trustee ; since
so long as it is in existence wiih him, the
wisdom and judgment of the first trustee
are considered to be, as it were, extent and
at hand with regard to it. — The proprietor,
moreover, is supposed assenting to any
mode of keeping his property which may
be agreeable to the trustee's judgment ; and
as that still continues to be exerted, it fol-
lows that no transgression whatever has as
yet taken place. — But. upon the article being
lost by the second trustee, the first trustee it
held to abandon the charge he had under-
taken, and is therefore responsible. The
second trustee, on the oiher hand, continues
in his original predicament ; that is, his
seisin is a seisin of trust in the end, in the
same manner as it was at the beginning ;
and as he is not found in any transgression,
he therefore is not responsible for the de-
posit ; — in the same manner as where the
wind blows a gown near to any person, and
it is after vards destroyed.— in which case
that person is not responsible.
Case of claim advanced by two persons to
a sum of money in the possession of a third.
— IF two persons should separately claim a
thousand dirms in the possession of a third ;
each asserting that he had deposited them
with him ; and the possessor deny their
claims, but refuse to take an oath to that
effect, the thousand dirms must, in that
case, be divided between the two claimants,
and the defendant remains answerable to
them for one thousand more. — The reason
of this is, that the claim of each several
claimant is valid, as the claim of each has
the probability of truth — Hence each is en-
titled to exact an oath from the defendant,
who, on his part, is required to make a sepa-
rate deposition with respect to each, as the
right of each is distinct. The Kazee, in
administering the paths, may lawfully being
with either, since it is impossible to admi-
nister both at the same time, and neither
has ground of preference over the other. —
If however, a contention should take place
between the claimants on this point, the die
must be thrown in order to satisfy them, and
to remove feny suspicion of partiality on the
part of the Kazee — If he then take an oath
in denial of the claim of one, let another
oath be administered to him in denial of the
second's claim ; and if he thus made oath,
denying the claims of both, nothing is due
BooKXXVIL]
DEPOSITS
fro»Yi him, for want of proof. — Ifhesbould
refuse to take the second oath, a decree must
be passed in favour of the second claimant,
since the proof is established. — If, on the
contrary, he refuse to take the first oath, a
decree must not be passed in favour of the
first claimant, but an oath must be tendered
to him with regarded to the claim of the
second — It were otherwise if, at the time
of refusing, he were be make an acknowledg-
ment in favour of the first ; for in that case
a decree would immediately pass ; since
acknowledgment is proof and a cause of
property in itself ; whereas a refusal to take
an oath is neither proof : nor a cause of pro-
perty, unless in conjunction with the decree
of the Kazee. It is therefore lawful for the
Kazee, in such a case, to suspend his decree
until he shall have tendered the second oath,
that he may be apprised of the full extent
to which his decree is to go :— and if the
defendant refuse to take the second oath
also, the Kazee must then pass a decree
equally in favour of both ; because neither
party has a superiority over the other in
point of proof ; and no regard whatever is
paid to priority of refusal [to swear], since
the two refusals do not constitute proof
separately, but together and at one period,
namely, at the period of the decree of the
Kazee ; — and as, i* both had adduced evi-
dence, no superiority would have been given
to either evidence on the ground or priority,
to also in the present instance — The defen-
dant must also give a compensation of ano-
ther thousand dirms to the c aimants, since
iu paying them the one thousand which was
present he only pays each half his due. —
supposing the t the Kazee, in consequence of
a refusal to take the first oath, should imme-
diately pass a decree in favour of the first
claimant, without waiting to tender an oAth
with respect to the claim of the other, in
this case Imam Alee Yezadee, in this com-
mentar, upon the Jama Sagheer, says that
an oath must be tendered with regard to the
second ; — and if the difendant refuse to take
it, a decree must then be passed jointly, in
favour of both claima, ts, in an equal degree ;
because the decree in favour of the first
claimant was not destructive of the right of
the second, since the precedence, in the
administration of the oath, was determined
either by the will of the Kazee, or the
chance of the die ; and neither of these have
power to destroy the second's right — Khasaf
has subs-ituted a slave in this case ; that is,
instead of one thousand dirms, he has sup-
posed the dispute to relate to a slave, and
he maintains that the sentence ought to be
executed in favour of the first claimant,
since the matter is uncertain, in as much as
several of the learned have given it as their
opinion, that a decree should be passed in
favour of the first without waiting for the
second, as a denial to take an oath is equiva-
lent, by implication, to an acknowledgment.
—He, moreover, remarks, that the oath with
respect to the second claimant must not be
477
administered to this effect, "this slave is
not the slave of such as one," because a
refusal on the part of the defendant to take
such an oath is of no consequence, after the
slave in question had been proved to be the
property of another. — The tenor of the oath,
therefore, must be "there is nothing due
from me to this man ; not this slave, nor the
value of him (which is so much), nor less
than the said value." — He also observes,
that it is requisite this oath be administered,
according to Mohammed ; hut not according
to Aboo Yoosaf ; because if a trustee should
make an acknowledgment of the deposit in
favour of a certain person, and the thing
acknowledged should by a decree of the
Kazee be given to another, then, according to
M >hammed, the acknowledger is respons b'e
but not according to Aboo Yoosaf — Now the
case in qurs'ion is a bianch of this case
relative to the acknowledgment of a deposit,
and consequently the law in the one case is
the same as in the other. — The case of
acknowledgment here alluded to, is where
a person first acknowledges a particular slave
to be the property of a particular person,
and afterwards denies it, averring that ano-
ther person had deposited the slave with
him, and a decree is passed in favour of the
first acknowledge, because of the second
acknowledgment being a retraction of the
first ; — in which case, if he should have
given the s'ave to the first without a decree
of the Kazee he is responsible, in the opinion
of all our doctors ; or if he should have
given the slave by the decree of the Kazee,
in that case also, according to Mohammed,
he is responsible, because he acknowledges
his obligation to keep the slave on account of
the second and yet he destroys the said
slave (that is, so far as relates to the claim
jf the second), by means of his acknowledg-
ment, and is consequently responsible. —
According to Aboo Yoosaf he is not respon-
sible in this instance, because he as holds,
it is not the immediate act of acknowledg-
ment that destroys the slave, so far as
relates to the right of the other, but the
giving of him to the other, which is the
ne:essary consequence of the order of the
Kazee. Mohammed, on the other hand,
maintains that it wa< he w'io urged the Kazee
to pass that decree ; whence he is respon-
sible. Now the reason fur assimilating the
case in question with this one is, that the
acknowledgment in favour of the second
claimant, after the first had acquired a right
to the thing, is useful to the second claimant
in as much as (the opinion of Mohammed,
it induces a responsibility in his favour.
Hence in this case, it is requisite, according
to Mohammed, to administer an oath to the
second claimant, notwithstanding the slave
have been proved to be the right of the first,
because the object from it is to obtain a
refusal to take the oath, which is equivalent
to an acknowledgment ; and an acknowledg-
ment, even in that case, is useful, as it
induces responsibility. According to Aboo
478
LOAN
[VOL. III.
Yoosaf , on the contrary, an oath is not to be
administered ; because, in this same manner
as the defendant is not made responsible by
an acknowledgment, so neither is he by a
refusal to swear, and hence the tendering of
an oath is useless.
B60K XXIX.
OF AREBAT OR LOANS.
Definition of Areeat, and the nature of the
use granted in a loan. — AREEAAT, according
to our doctors, signifies an investiture with
the use of a thing without a return. — The
person who so grants the use is termed
Moyeer, or the lender ; the person receiving
it, Moostayir, or the borrower ; and the
article of which the use is granted, Areeat,
or the loan — Koorokhee and Shafei define
Areeat to signify, simply, a license to use
the property of another because it is settled
by the world Ibahit, signifying license or
permission. Besides, a specification of the
period is not a necessary condition in a loan :
but if a loan were an investiture, it would
not be valid without such specification, since
without a specification of the period the full
extent of the use cannot be ascertained, and
an investiture with anything uncertained
is invalid. A loan, moreover, is rendered
null by a recall, whereas if it were an
investiture with the use, it could not be
rendered null by a recall, in the same manner
as a lease cannot be annul ed by a recall.
Further, the borrows is not entitled to hire
the loan ; whereas, if it were an investiture,
he might let it out to hire, because whosoever
is himself proprietor of a thing may constitute
another proprietor of it. Our doctors, on the
other hand, argue that the word Areeat in-
dicates an investiture, since it is derived from
Areeya, which signifies a grant ; and that,
accordingly, in forming the contract the ex-
pression investiture is used. The use of a
thing, moreover, is capable of being property,
in the same manner as the actual thing itself ;
and as investiture with the latter may take
place either with or without a return, so also
with respect to the former. — With respect to
what Koorokhee urges concerning for term
Ibahit, it may be replied that this term is not
uncommonly used to express investiture, since
it is used in setting contracts of lease, which
are an investiture with respect to the use of
the thing hired. — With respect to his con-
clusion, that "if a loan were an investiture
it would not be valid without a specification
of its period, because of uncertainty, "—it
may be replied that uncertainty, in loans, is
of no consequence, as if car not be productive
of strife, inasmuch as loans are not binding,*
whence the uncertainty cannot be injous, uri
•That is, may be retracted at pleasure.
It is to be observed that a recall operates in
a loan, because a recall is a prohibition with
respect to the enjoyment of the use, and
after such prohibition the use, of conse-
quence, ceases to be the property of the
borrower. The borrower, moreover, is not
competent to let out to hire the thing bor-
rowed, since that is attended with an injury
to the lender, as will be hereafter explained
— It is also to be observed that investiture is
made in four different shapes. I, By sale,
which is an investiture with substance, for a
return. — II. By gift, which is an investiture
with substance, without a return. — III. By
lease or hire, which is an investiture with
the use of a thing for a return — IV. By
loan, which is an investiture with the use of
a thing without a return, as before explained ;
and which is lawful, as being a species of
kindness; because GOD has said "DO KIND-
NESS TO EACH OTHER ;" and also, because
the prophet borrowed a suit of armour from
S if wan.
Forms under which i t is granted. — A DEED
of loan is rendered valid by the lender
saying "I have lent you this/' as there the
purpose is expressly mentioned ; or, by his
saying, ' I have given you to eat of this
earth, because such an expression is used
to denote a loan metaphorically ; for as it is
impossible to eat of the earth itself, the
meaning is therefore construed "to eat of
the produce of it/'*
The lender may resume it at pleasure. —
THE lender is at liberty to resume the loan
whenever he pleases ; because the prophet
has said "MooNHA is liable to be recalled,
and a loan must be returned to the pro-
prietor (Moonha is a species of loan, where
a person lends another a goat, a cow, or a
she-camel, for instance), that he may use
the»r milk ; — and also, because the produce,
or use of the thing lent, becomes property,
particle by particle, merely according as it
is brought into being ; hence, with respect
to such part of the produce as is not yet
brought into being, there is merely an inves-
titure, but no seisin : retraction with re-
spect to such part is therefore valid.
The borrower is not responsible for the lost
of it, unless he transgress respecting it. — A
LOAN is a trust. If, therefore, it be lost in
the hands of the borrower, without any
transgression on his part, he is not answer-
able for it, whether the loss happen at the
period of his using it, or otherwise.— bhafei
maintains that he is responsible for it in case
the loss should take place at a time when he
is not using it ; because he has taken possess-
sion of the property another without a right
in it ; and also, becau e as the borrower is
liable to the charges of removal, in case of
the existence of the substance, so also he is
answerable for the value, in case of its
•Some cases are here omitted, as they
turn entirely upon different modes of expres-
sion, in the original idiom.
BOOK XXIX.]
LOANS
479
destruction, in the same manner as an
usurper the article standing in the same
predicament with merchandise detained
with a view to purchase. — With respect to
the permission of seisin, established on the
borrower's behalf that was granted merely
with a view to enable him to enjoy the use ;
and hence, where the use .ceases it no longer
operates ; in other words, where the loan is
destroyed during his enjoyment of the use;
he is not responsible, because of the exis-
tence of the necessity ; whereas, ^if it be lost
at a time when he is not using it, he is rea-
ponsible, because of the non-existence of
the necessity at the time. The argument
of our doctors is, that the term Areeate does
not indicate responsibility ; for (according to
their exposition) it is an investiture with the
use without a return or (according to Shafei
and Koorokeee) a permission of the use ;
and the seisin of it is not a transgression on
the part of the borrower, since it was made
with the consent of the lender ; and although
that consent was merely with a view to
enable the lender to use the article, still to
borrower did not make the seisin with any
other intention ; he therefore, is not guilty
of any transgression ; and consequently is
not responsible. — In reply to what Shafei
urges it may be observed, that the expense
attending a removal of the article is incum-
bent on the borrower, merely on account of
the advantage he derives from it, in the
same manner as t^e maintenance of a loan
is incumbent upon the borrower, on account
of the advantage he derives from it, and not
on account of any defect in his tenure. It
is otherwise in the case of an usurper, where
the charges of removal are due merely be-
cause or the defect in his tenure. — With
respect to seisin with a view to purchase,
the responsibility in that instance does not
arise from the seisin, but from the design
with which it was made ; for as seisin in
virtue of a contract of sale induces respon-
sibility, so also seisin with an intention of
purchase induces responsibility, since seisin
with a view to any contract is subject to the
same laws with that contract, as has been
explained in its proper place.
He cannot let it out to hire. — IT is not
lawful for a borrower to let out a loan. If,
therefore, he should let it out, and it be
afterwards lost, he is in that case reponsible
for it ; because a loan is inferior to a lea e,
and an inferior cannot compreh:nd his supe-
rior ; and also, because if the hire be valid,
it can only be so on the supposition of its
being binding ; and that cannot be supposed
otherwise than with the consent of the
lender ; for if it were binding without his
consent, it would be a great injury to him,
as it would deprive him of the power of
resuming the loan, until the expiration of
the lease. — The lease of a loan is therefore
invalid
Or, if he let it* he becomes responsible. — IT
is to be observed that, in case of letting out
the loan, the borrower becomes responsible
fcr it immediately upon the delivery to the
lessee; for as the act of lending does not
comprehend hire, it follows that such deli-
very is an usurpation. The lender is in this
case at liberty to take the compensation, if
he please, from the lessee, because of his
having taken the property of another with-
out his c msent. If, however, he take it
from the borrower, he is not then entitled to
any indemnification from the lessee, since,
in consequence of his receiving a compensa-
tion from the borrower, it becomes evident
that the borrower only let his own property. —
f he take the compensation from the leasee,
the lessee is in that case entitled to an in
demnincation from tha borrower, who is the
lessor, provided he [the Its-^ee] had not
known that the lease wa? a loan, as in that
case he suffers an imposition. It is other-
wise where he takes the lease knowing it to
be a loan, as there he suffers no imposition.
He may lend it to another person, unless
this subject it to be differently affected.— IT
is lawful for a borrower to lend the thing
borrowed, provided it be of such a nature !
may not subject is to be differently affected
by different uses.*— Shafei is of opinion that
the borrower is not entitled to lend the loan
to another, because (according to him) a loan
is merely a permission of the use, and a
person to whom the use of a thing is per-
mitted is not entitled to communicate that
permission to another, for this reason, that
the use of a thing is not capable of being
property, as it is a non entity, the use being
considered is an entity in the case of a lease
merely from necessity, which in a loan may
be completely answered by permission. —
Our doctors, on the other hand, argue that
as loan is an investiture with the u^eofa
thing, the borrower may therefore lend the
loan, in the same manner as a person to
whom the use of a thing devolved by re-
quest. —Besides, in the same manner as the
use is made property in the case of a lease,
so also is it from a principle of necessity, in
the case of a loan.
OBJECTION. — If a loan signify an investi-
ture with the use, it would necessarily follow
that the borrower is at liberty to lend the
loan even where a difference of use may
occasion a different affection in the thing ;
whereas the law is otherwise.
REPLY. — It is not permitted to the bor-
rower to lend the thing borrowed when of a
nature to be differently affected by different
use, because of the possibility of the use of
the second borrower being more injurious to
*Thus if the loan be a cow or a goat, as
the object from these is milk, it matters not
whether for this purpose they remain with
Zeyd or Omar. — But if the loan be a riding-
horse, it may be consequence that Zeyd be
should not lend it to Omar, for if Zeyd be
thin and Omar fat, Omar's use of the horse
would in that case affect it more than the
use of it by Zeyd.
480
LOANS
VOL. III.
the thing than that of the first ; ?nd the
consent and approbation of the first lender
is give to the use of the first borrower, but
not to that of the second. — The compiler of
the Hedaya remarks that what is here re-
lated proceeds on the supposition of the loan
being absolute ; for that loans are of four
kinds. I. Loan that are absolute with re-
spect both to the period and the use ; in
which case the borrower is entitled to take
the use in any manner and at any time he
pleases because of the loan being absolute.
— II. Loans that are restricted both as to
the use and the time, in which case the bor-
rower is not allowed to depart from these
restrictions, excepting where the deviation
is in an instance that is similar to the one
prescribed, or of a better kind ; as where
a person borrows a quadruped in order to
load it on a particular day with ten measures
of a particular kind of wheat ; and he loads
it on that day with ten measures of a
different kind of wheat, or with less than
ten measures of the same or a different kind
of wheat.— III. Loans that are restricted in
point of time but absolute with respect to
the use ; — and IV. Loans that are restricted
with respect to the use, but absolute with
respect o time ; — in either of which it is
not lawful for the borrower to depart from
the restrictions.— -If therefore, a person
borrow a quadruped without any conditions
whatever, he is in that case entitled either
to load it on his own account, or to lend it
to another for the purpose of landing, as in
landing there is no difference ; and, in the
same manner, he may either ride upon it
himself, or lend it to another for that pur-
pose ; — but as riding is supposed to be of
different kinds, he is not entitled to more
than one kind, which his own act must fix
and determine ; and hence, if he should ride
upon it himself, he is not afterwards at
liberty to lend it to another to ride ; or, if
he should lend it to another to ride upon,
he is not afterwards entitled to ride upon it
himself.
Loans of money, &c , as opposed to loans of
specific property. — THE loan of clirms and
deenats, and of articles estimated by mea-
surement of capacity, by weight, or by tale,
is considered in the light of Karz.* — The
* Areeat and Karz are, in common con-
versation, used indiscriminately to denote a
loan ; but there is a distinction in law with
regard to them. Areeat is used with respect
to such things at, after being lent to another,
are identically returned to him ; and Karz,
with regard to such things are returned,
not identically, but equal in point of num-
ber, weight, or measurement of capacity. —
Thus where a pen on, having borrowed a
book, and read it, afterwards borrowed a
book, and read it, afterwards returns it,
it is considered as Areeat ; but if a person
should borrower one hundred dirms from
another, and after using them should re-
turn another hundred dirms, it is considered
as Karz.
principle on which this proceeds is that
Areeat is an investiture with the use [of the
property lent] ; and as this cannot be ob-
tained, with regard to these articles, without
a destruction of the substance, it must, with
respect to him, be necessaiily considered as
an investiture with the substance, — Now an
investiture of this nature is to be considered
in two lights, — a gift or a loan :* — the act is,
however, regarded as a loan in this instance,
either because loan is more probable than
gift, or because the objects of a loan are two-
fold,— namely, the use of the article, and
the restitution of the substance : and in the
loan of the articles in question, a restitution
of an equivalent is admitted in place of the
identical substance. — Lawyers, however,
have observed t at this doctrine proceeds on
the supposition of the loan being absolute :
for if it be limited (as if a person should
lend another a quantity of dirms merely to
place in his shop and attract customers from
the persuasion of his being rich), it IN not in
this case a Karz-loan, but an Areeat-loan,
whence he is not entitled to derive any other
use from it then what was specified : the
case, therefore, becomes the same as if he
had borrowed a vessel or a sword to decorate
his shop,
Land may be borrowed for the purpose of
building or plantations . but the lender is at
liberty to resume it. — IF a person borrow
land, with a view to build upon it, or plant
trees in it, it is lawful ; because the use to
which the loan is to be applied is here ascer-
tained ; and as such use is the subject of
property in leases, so also in loans. — but in
this case it is permitted to the lendei to re-
sume the land ; and as he is to receive it
back in the state in which he lent it, he is
therefore empowered to compel the borrower
to remove his houses or trees. — It is to be
considered, however whether or not any
period was fixed for the loan. — If no period
was fixed, then no compensation is due by
the lender for the loss he may have occa-
sioned to the borrower by the destruction of
his buildings or trees, since no deceit was
practised on the borrower, but rather he de-
ceived himself, in trusting to a contract
which was absolute and unaccompanied with
any condition —If, on the other hand, a pe-
riod was fi ed for the loan, and it be resumed
before the expiration of that period, the re-
sumption so made is valid, since a lender
(as was before explained) may resume a loan
when he pleases : but it is nevertheless
abominable in this instance, as it involves a
breach of promise, and the lender is respon-
sible to the borrower for the loss he sustains
*Arab. Karz.— As the English language
makes no distinction between the termr Karz
and Areeat (although essentially different
in their effect) , the translator is under the
necessity of adopting the term loan in both
instances ;— leaving it to the reader to con-
ceive the original term from the context.
BOOK XXIX ]
LOANS
481
in the removal of his trees and buildings, in
as much as he deceived the borrower in fixing
a period which it was natural to suppose he
would adhere to : — the borrower, therefore,
is entitled to a compensation from the lender,
in consideration of the damage he receives ;
and the same is mentioned by Kadoree in his
compendium. — Hakim Sruheed maintains
that the borrower is at liberty either to take
from the lender the value of the trees and
buildings (in which case they become the
property of the lender), or to take a compen-
sation for his loss (in which case he is at
liberty to carry away the tr^cs and the build-
ings). Lawyers have observed that if the
removal of the trees and buildings be detri-
mental to the ground, the choice of the alttr-
native rests with the proprietor of the ground,
as he is the principal, and the borrower the
secondary, and a preference is always given
to the principal.
Land bonowed for the purpose of tillage
cannot be resumed until the crop be reaped
from it. — IF a person borrow a piece of land
for the cultivation of grain, the lender has
not the power of resuming the loan until
the gathcri ig in of the grain, whether a
period have been fixed or not : because the
gathering of the crop comes within a certain
and known period ; and in suffering it to
remain on the ground, an observance of the
right of both the lender and borrower is
maintained; in the same manner as, under
similar circumstances, in tru case of a lease.
It is otheiwise with respect to trees ; be-
cause, as the period of their existence is un-
certain, th? suffering them to remain would
be an injury to the lender.
The borrower must defray the charges
attending the restoration oj a loan. — THE
charges of returning the loan must be de-
frayed by the borrower ; because, as the res-
titution of it is incumbent on him (since he
took it with a view to his own benefit), he is
consequently liable to the expenses attendant
on such restitution — It is to be observed
that the expenses attending the return of
the subject of a lease are incumbent on the
lessor; because the rent being a return for
the benefit arising from the tenure of the
article let, all that is required from the lesses
is merely to put it in the power of the lessor
to recover it, by divesting himself of it, and
not that he should return it to him. — The
expense of returning the subject of an usur-
pation, on the contrary, must be defrayed by
the usurper : for as the return of the article
to the proprietor is incumbent on the usurper
of it in order to remedy the injury he occa-
sioned, as the expense attendant on such
return must of consequen e be borne by him.
In restoring an animal borrowed it suffices
that it be returning to the owner's stable.
— IF a person, having borrowed a quadruped
from another, should restore it to the stable
of the proprietor, and it be afterwards lost,
in ihat case he is not responsible for it, on
a favourable construction.— Analogy would
suggest that he is responsible, since he has
neither restored it to the proprietor nor his
asent. but merely to his ground.— The reason
pjr a more favourable construction of the
aw in this instance is, that a restitution has
lere been made according to general custom,
since it is customary to restore loans to the
liouse of the proprietor ; as where, for in-
stance, vessels or utensils belonging to a
bouse are borrowed, in which case it is usual
to return them, not into the proprietor's
lands, but merely to his house. — Besides, if
be had returned the quadruped to the pro-
prietor, he [the proprietor] would have sent
it to the stable and therefore his doing so at
once is considered as a valid return
And, in restoring a slwe. that he be re-
turned to his master's house. — IF a person
borro-v a slave, and aftewards return him
to the house of his master without delivering
him, personally, to the master himself, he is
not in that case responsible for him for the
reasons above mentioned, — Is, on the con-
trary, an usurper or a trustee return the
subject of the usurpation or the tru^t to the
house of the proprietor, without delivering
it to the proprietor, they are in that case
responsible for the eventual loss of it : — the
usurper, because Tit was incumbent on him
to undo his act, and his act cannot be undone
but by a delivery to the proprietor himself ;
an. 1 the trustee, beciu^-e the proprietor did
not wish that he should i-cliver the deposit
merely to his house or his family, for if that
had been the case, he would not have depo-
sited it with him. — It is otherwise with re-
spect to loans, as the^e are commonly returned
to the house : excepting, however, where
they consist of jewels, for in that case they
must be returned to the proprietor, and not
to the house or family
It suffices to return the loan by a slavt or
servant either of the borrower. — IF the bor-
rower send the quadruped he had borrowed
to the proprietor of it; by his own slave or
his hireling, and it be lost in the way, in
that case he is not responsible for it. — (By hire-
ling is here to be understood a servant who
receives yearly wages.) — The reason of this
is that a loan is in the nature ot a trust ; and
the borrower may commit it, for the sake of
preservation, into the hands of any of his
family, in which relation a slave and a yearly
servant stand.— It is otherwise with respect
to a daily servant, as he is not held to be one
of the family.
Or lender — IF a borrower should send
back the horse or other animal he had bor-
rowed to the proprietor, by the slave or the
hireling of the proprietor, and it be lost or
destroyed on the way, he is not responsible
for it, since the proprietor is virtually sup-
posed to have approved of this, in as much
as he himself, if a delivery had been made to
him, would have consigned the horse to one
of these:— Some have said that the law here
proceeds on the M supposition of the slave or
hireling, to whom the quadruped ii con-
signed, being the one to whom the care and
management of it is always given. Others,
482
LOANS
[VOL III,
again, have said that it matters not whether
it be consigned to such a slave, or to any
other slave of the proprietor ; and the latter
is the most approved doctrine.
If it be returned by a stranger, the borrwer
is responsible. — IP a borrower should send
the quardruped to the proprietor by the hands
of a stranger, he becomes in that case respon-
sible for it, and must make good the value
in the event of its loss.— It is to be observed
that the case seems to imply the illegality of
a borrower's depositing a loan with a stran-
ger ; since, if that were lawful, he would not,
in the present instance, be responsible. — Such
also is the opinion of some of our modern doc-
tors.— Others of them have said that it is law-
ful for a borrower to deposit the loan, because
the contract of deposit is inferior to that of
loan ; and they have reconciled the doctrine,
in the present case, by observing that the
borrower does necessarily become respon-
sible on sending the loan by a stranger, since
from the moment of his consigning it to a
stranger the loan determines, and being no
longer a borrower, he becomes of consequence
responsible. — Our doctors, however, do not
admit the legality of a borrower's deposit,
unless he be the borrower of a borrower,
which in fact is not a borrower.
Terms in which a contract of loan with
respect to land must be expressed. — IP a
person lend a piece of fallow ground to an-
other, that he may cultivate it, the borrower
must insert, in the contract of loan, the
words, " You have given me to eat of this
land." — This is according to Haneefa. The
two disciples have said that the term Areeat
or loan must be inserted ; because the term
Areeat is particularly used to express a loan;
and it is preferable that a contract of loan be
expressed in terms particularly appropriated
to loans : — as in the loan of a house, for
instance, where the borrower etpresses the
contract. "You have lent me this house."
The argument of Haneefa is, that the words
" You have given me to eat of this land,"
are more expressive of the fact, since the
term I tarn [giving to eat] is particularly
restricted to the produce of land ; whereas
the words " You have lent me this ground, '
may apply to any other object, such as build-
ing, or the like. — The use of the former, there-
fore, in the case in question, is by much the
most advisable. — It is otherwise with respect
to a house, because the loan of it is given
for no other purpose than that of residence.
BOOK XXX.
OF HIBBA, OR GIFTS.
Definition of the terms used in gift. — HIBBA.
in its literal sense, signifies the donation of
a thing from which the donee may derive a
benefit : in the language of the LAW it means
a transfer of property, made immediately,
and without any exchange. — The person
making the transfer is termed the Wahib, or
donor: — the person to whom it is made the
Mohoob-le-hoo; or donee ; — and the thing
itself the Moohoob, or gift.
Chap. I.— Introductory.
Chap. II —Of Retractation of a Gift.
CHAPTER I.
Gifts are lawful. — DEEDS OF GIFT are
lawful ; because the Prophet has said
"Send ye presents to each other for the
increase of your love," which implies the
legality of gifts, as by presents is meant
gifts. All our doctors, moreover, concur in
the validity of them.
And rtndered valid by tender, acceptance,
and seisin. — GIFTS are rendereu valid by
tender, acceptance, and seisin — Tender and
acceptance are necessary, because a gift Is
a contract, and tender and acceptance are
requisite in the formation of all contracts ;
and seisin is necessary in order to establish
a right of property in the gift, b; cause a
right of property, according to our doctors,
is not established in the thing given merely
by means of the contract, without seisin. —
Malik alleges that right of property is
established in a gift antecedent to seisin,
because of its analogous resemblance to sale:
and the same difference of opinion obtains
with) respect to alms-gift —The arguments
of our doctors upon this point are twofold,
— FIRST, the Prophet has said, "A gift is
act valid without seisin " (meaning that the
right of property is not established in a gift
until after seisin). — SECONDLY, gifts are
voluntary deeds ; and if the right of pro-
perty were established in them previous to
the seisin, it would follow that the delivery
would be incumbent on the voluntary agent
before he had voluntarily engaged for it,
— It is otherwise with respect to wills ;
because the time of establishment of a right
of property in a legacy is at the death of the
testator : and he is then in a situation which
precludes the possibility of rendering any
thing binding upon himself,
OBJECTION — Although a dead person be
not capable of being bound, still an obliga-
tion may he against his heir, who is his
successor and representative,
REPLY. — The heir is not proprietor of the
legacy, and cannot therefore be subjected to
obligation on account of it.
A gift may be taken possession of on the
spot where it is tendered, without the express
order of the donor : but not afterwards. — IF
the donee take possession of the gift, in the
meeting of the deed of gift,* without the
order of the giver, it is la\vful, upon a
favourable construction.— -If, on the con-
trary, he should take possession of the gift
after the breaking up of the meeting, it is
not lawful, unless he have had the consent
of the giver so to do. — Analogy would
suggest that the seisin is not valid in either
case as it is an act with respect to what is
•Arab. Majlis Akidal Hibba ; — meaning,
the place where the deed is executed.
BOOK XXX.— CHAP. I.]
GIFTS
still the property of the giver ; for as his
right of property continues in force until
seisin that is consequently invalid without
his consent. The reason i or a more favour-
able construction of the law, in the instance
in question, in that seisin, in a case of gift,
is similar to acceptance in sale, on this con-
sideration, that in the one the effect of the
deed (that is, the establishment of a right of
property) rests upon the seisin, and in the
other upon the acceptance. — As, moreover,
the object of a gift is the establishment of a
right of property, it follows that the tender
of the giver is, virtually, an empowerment
of the donee to take possession. — It is other-
wise where the seisin is made aft^r the
breaking up of ihe meeting ; because our
doctors do not admit of the establishment of
the power over the thing but when se-sin is
immediately conjoined with acceptance ; and
as the validity of acceptance is particularly
restricted to the place of the meeting, so
also is the thing which is conjoined with it.
— It is also otherwise where the giver pro-
hibits the donee from taking possession in
the place of meeting, for in that case the
seisin of the donee in the place of the meet-
ing would be invalid, as arguments of
implied intention cannot be put in competi-
tion with express declaration.
A gift made from divisible property must
be divided off ;— -but not a gift made from
indivisible property. — *A GIFT of part of a
thing which is capable of division is nut
valid unless the said part be divided off and
separated from the property of the donor :
but a gift of part of an indivisible thing is
valid. Shafei maintains that the gift is
valid in either case ; because a gift is a deed
conveying property, and valid, as such,
with regard either to things that are con-
nected or separated : in the same manner as
in sale, — The ground of this is that as an
indefinite share has the capacity to consti-
tute property, it is consequently a fit subject
of gift : nor is a voluntary deed rendered
null by the indefiniteness of the subject of
it : as in a Karz-loan, for the subj ->ct of
person gives another one thousand dirms, of
which one half is to be in the nature of a
loan, and the other of copartnership : or as
in bequest ; or in the gift of indivisible
things — The arguments of our doctors upon
this point are twofold.— FIRST, seisin in
cases of gift is expressly ordained, and con-
sequently a complete seisin is a necessary
condition : but a complete seisin is imprac-
ticable with respect to an indefinite part of
divisible things, as it is impossible, in such,
to make seisin of the thing given without
its conjunction with something that is not
given ; and that is a defective seisin. —
SECONDLY, if the gift of part of a divisible
* A small portion of the text immediately
preceding, which relates to words synoni-
mous, either directly or by implication, to
the word Hibba, or gift, has heen necessarily
omitted in the the translation.
thing, without separation, were lawful, it
must necessarily follow that a thing is in-
cumbent upon the giver which he has not
engaged for, — namely, a division which
may possibly be injurious to him (whence
it is that a gift is not complete and valid
until it be taken possession of ; since if it
were valid before seisin, a thing would be
incumbent upon the donor which he has not
engaged for, — namely, delivery). — It is
otherwise with respect to articles or an in*
divisible nature; because in those a com*
plete seisin is altogether impracticable, and
hence an incomplete seisin must necessarily
suffice, since this is all that the article
admits of :— and also, because in this in-
stance the donor does not incur the incon-
venience of a division
OBJECTION. — Analogy would suggest that
the gift of a part of an indivisible article is
invalid : because, although the donor do not
in such a case, incur the inconvenience of a
division, still he incurs a participation in
the property ; and this also is a sort of in-
convenience.
REPLY. — The donor is subjected to a par-
ticipation in a thing which is not the subject
of his grant, namely, the use [of the whole
indivisible article], for his gift related to the
substance of the article, not to the use of
it; — hence the necessity of a participation is
not incurred by him with respect to the
thing which is properly, the subject of his
grant.
WITH respect to the analogy advanced
by Shafei between the case in question and
that of Karz-loan, or bequest, it is totally
unfounded ; because in bequests the seisin
[of the legatee] is not a necessiry condition ;
neither is it so in a valid sale; — and although
seisin be requisite in Sillim and Sirf sales,
still is not ordained with respect to them
and hence is not required to be complete in
those instances. Besides, as all those con-
tracts [of sale] are contracts of responsi-
bility, the obligation of a division is agree-
able to them. — With respect to a Karz-lpan,
it is a voluntary contract in the beginning,
but a contract f responsibility in the end
(since it involves responsibility for a simi-
lar) ; and hence, in consideration of its
resemblance to both, an incomplete seisin
is made a condition in it, n6t a division :
besides, seisin is not especially ordained in
this instance.
IF a person make a gift to his partner, of
his share in the partnership-stock, capable
of division, it is invalid, because of the in-
validity of the gift of an undefined part of
a divisible subject, as before explained.
IF a person make a gift, to another, of an
undefined portion of land- -(such as an half,
or a fourth), such gift is null, for the reasons
already set forth. — If, however, he after-
wards divide it off, and make delivery of it,
the gift becomes valid : because a gift is
rendered complete by seisin ; and in this
case nothing else remains indefinitely in-
volved with the gift at the time of seisin.
484
GIFTS.
[VOL. III.
Agift of an article implicated in another
article is utterly invalid. — IP a person make
a gift of the flour of Sessame which is yet in
grain, or of oil of Sessame which is not yet
expressed from the seeds, such gift is invalid;
and if he afterwards grind the wheat into
flour; or extract the oil from the Sessame
seeds; and so deliver them to the donee, still
the gift is not thereby rendered valid,— The
same rule also holds with respect to butter
which is yet in milk. — The reason of this is
that the thing given, in all these cases, is a
nonentity (whence it is that if an usurper
of wheat, or of seeds, should either grind
the one into flour, or press the other into oil,
he then becomes oroprietor of them); and as
a nonentity cannot be a subject of property;
the deeds in question are therefore null, and
cannot afterwards be rendered valid other-
wise than by being executed de novo. — It is
different in the preceding case, because an
undefined portion of any thing is neverthe-
less capable of being transferred.
THE gift of milk in the udder, of wool
upon the back of a goat, of grain or trees
upon the ground, or of fruit upon trees, is in
the nature of the gift of an undefined part
of a thing, because in these instances the
cause of invalidity is the conjunction of the
thing given with what is not given, which is
a bar to the seisin, in the same manner as in
the case of undivided things.
The gift of a deposit to the trustee is valid
without a formal delivery and seisin.— IF the
thing given be in the hands of the donee, in
virtue of a trust, the gift is in that case
complete, although there be no formal seisin
since the actual article is already in the
donee's hands, whence his seisin is not re-
quisite. It is otherwise where a depositor
sells the deposit to his trustee, for in this case
the original seisin does not suffice, because
seisin in virtue of purchase is a seisin induc-
ing responsibility, and therefore cannot be
substituted by a seisin in virtue of a trust;
but seisin in virtus of gift, on the contrary,
as not being a seisin inducing responsibility,
may be substituted by a seisin in virtue of a
trust.
The gi/t, by a father to his in/ant son, of
any thing rather actually o virtually in his
possession* is valid in virtue of his [the
father's] seisin. — IF a father make a gift of
something to his infant son, the infant, in
virtue of the gift, becomes proprietor of the
same, provided the thing given be, at the
time, in the possession either of the father
or of his trustee ; because the possession of
the father is capable of becoming possession
in virtue of gift and the possession of the
trustee is equivalent to that of the father.
(It were otherwise if the thing given have
been pawned or usurped by another, or sold
by an invalid sale : because a pawn and an
usurpation are in the possession of another,
and the subject of an invalid sale is the
properrty of another.)— The same rule holds
when a mother gives something to her infant
son whom she maintains, and of whom the
father is dead, and no guardian provided ;
and so also, with respect to the gift of and
other person maintaining a child under these
circumstances. — It is to be observed that the
law with respect to seisin in cases of alms-
gift is similar to that in gifts.-— Thus if a
person should bestow in alms, upon a pauper,
any thing of which the pauper has possession
at the time, he [the pauper] in that case
becomes proprietor of the same, without the
necessity of a new seisin ; and so also, if a
father should bestow in alms, upon his infant
son. something of which he himself or his
trustee has the possession, the infant becomes
proprietor thereof;— contrary to where the
thing so bestowed has been pawned, lost by
usurpation, or sold by an invalid sale.
And so also, a gift to an infant by a
stranger.— IF stranger make a gift of a
thing to an infant, the gift is rendered com-
plete by the seisin of the father of the infant:
for as he if master of deeds with respect to
the child liable to both good and evil (such
as sale) he is consequenty, in a superior
degree, master of gift, which is purely ad-
vantageous.
Gift to an orphan is rendered valid by the
seisin of his guardian.— IF a person make a
gift of a thing to an orphan, and it be seised
in his behalf by his guardian. --being either
the executor appointed by his father, — or his
grandfather, or the executor appointed by
his grandfather, it is valid ; because all these
relatives have an authority over the orphan,
as they stand in the place of his father.
And, to a fatherless infant, by the seisin
of his mother. — IF a fatherless child be
under charge of his mother, and she take
possession of a gift made to him, it is valid;
because she has an authority for the pre-
servation of him and his property: and the
seisin of a gift made to him is in the nature
of a preservation of himself, since a child
could not be subsisted without property. —
The sime rule also holds with respect to a
stranger who has the charge of an orphan: —
because as his seisin is of legal force (whence
it is that another stranger has not a right to
take the orphan from him), he is consequently
competent to all such things as are purely
for the advantage of the orphan,
Gift to a rational infant is rendered valid
by the seisin of the infant himself.— IF an
infant should himself take possession of a
thing given to him, it is valid, provided he
be endowed with reason ; because such an
act is for his advantage ; and he has a
capability of performing it, as capability de-
pands on reason and understanding, which
he possesses.
IT is lawful f >r a husband to take posses-
sion of any thing given to his wife, being an
infant, provided she have been sent from her
father's house to his ; and this although the
father be present ; because he is held, by
implication; to have resigned the manage-
ment of her concern to the husband. It is
otherwise where she has not been sent from
her father's house because then the father is
BOOK XXX— CHAP II.]
GIFTS
485
has made a difference with respect to them,
as appears by the case recited in the Jama
Sagheer, since he has admitted of charity to
two poor men, but not of a gift to two rich
men ; whilst in the Mabsoot he has made no
difference between them, but on the contrary
has declared them to be equal, as he there
declares "neither a gift nor alms to two men
is valid, because the mixture of property is a
bar in both cases, as both are dependant on a
parfiict seisin.1'— The reason of the distinc-
tion in the Jama Sagheer is that the end of
aims is to give to GOD, who is one : and the
alms comes not to the poor men, but as their
daily food from GOD Almighty ; whereas the
gift goes directly to the object of it, namely,
the two men.— Some have said that the
recital in the Jama Sagheer is the most
approved doctrine ; and that the meaning of
the doctrine in the Mabsoot is that charity to
two rich men is invalid; in the same manner
as a gift to two men or any description.
Case of the gift of a house inseparate lots,
—!F a person make a gift to two men, of
one third of his house to one of them, and of
one third to the other, it is invalid accord-
ing to the two disciples, and according to
Mohammed it is valid If, however, he make
a gift of one half to one, and one half to the
other, there are in that case two reports with
respect to the opinion of Aboo Yoosaf. —
According to the two principles maintained
by Haneefa, the gift in that case is invalid ;
whereas, according to the principles of
Mohammed, it is valid — The reason of the
distinction, in the latter instance, as main-
tained by Aboo Yoosaf, is that because of the
express apportioning of the gift, it becomes
evident that the object of the giver was to
establish a part of the property in each, by
which means a mixture of the property must
inevitably take place ;— whence it is that it
is not lawful for a person to pawn a thing
into the hands of two, by apportioning an
half of it separately to each.
CHAPTER II.
OF RETRACTATION OP GIFTS.
The donor may retract his gift to stranger.
—!T is lawful for a donor to retract the gift
he may have made to a stranger : Shafei
maintains that this is not lawful ; because the
Prophet has said. "Let not a donor retract
his gift ; but let a FATHER, if he please,
retract a gift he may have made to his
SON ;" and also ; because retractation is the
very opposite 'to conveyance,— and as a deed
of gift is a deed of conveyance, it conse-
quently cannot admit its opposite. It is
otherwise with respect to a gift made by a
father to his son, because (according to his
tenets) the conveyance of property from a
father to the son can never be complete ; for
it is a rule with him that a father has a power
over the property of his son.— The arguments
of our doctors upon this point are twofold. —
FIRST, the Prophet has said. "A donor pre-
not held to have resigned the management
of her concerns. It is also otherwise with
respect to a mother, or any others haying
charge of her; because they are not entitled
to possess themselves of a gift in her behalf,
unless the father be dead, or absent, and his
place of residence unknown ; for their power
is in virtue of necessity, and not from any
supposed authority ; and this necessity cannot
exist whilst the father is persent.
A house may be conveyed in gift by two
persons to on«,~ IF two persons, jointly, make
a gift of a house to one man, it is valid : be-
cause, as they deliver it over to him wholly ,
and he receives it wholly, no mixture of
seisin.
But not by one person to two — IF one man
make a gift of a hpuie to two men, the < eed
is invalid, according lo Haneefa. The two
disciples hold it to be valid, because as the
donor gives the whole of he house to each of
the two donees (in as much as there is only
one conveyance) there is consequently no
mixture of property ; in the same manner as
where one man pawns a house to two men.
— The arguments of Haneefa upon this point
are twofold. — FIRST, the gift, m this case, is
a gift of half the house to each of the donees
(as is evident from this, that if one man give
to two men something incapable of division,
and one of them accept the same, the gift
becomes valid with respect to his share) ; —
and such being the case, it follows that, at the
time of seisin by each of the donees, a mix-
ture of property take place. SECONDLY,
as a right of property is established in each
of the donees, in the extent of one half, it
follows that the conveyance or investiture
must also be in the same proportions, since
the right of property is an effect of the con-
veyance : on this consideration, therefore,
that right of property is established in each
with respect to one half, an indefinite mix-
ture of their respective share in the gift is
fully established. — It is otherwise in a case
of pawn, because the effect of that is deten-
tion, not right of property, and the right of
detention is wholly and completely estab-
lished in each of the pawn holders, respec-
tively, insomuch that if the pawner should
discharge the debt of one of them, still the
right of the other to a complete detention
remains unimpaired.
Distinction between joint gift or alms to the
rich and to the poor. — IT is recorded, in the
Jama Sagheer, that if a rich man bestow
ten dirms, in alms, upon two poorrren, or
make a gift of that sum to them, it is valid,
but that if the said charity or gift be made
to two rich men, it is invalid. (The two dis-
ciples maintain that in this last instance
both gift and alms are valid), --From this it
appears that Haneefa has construed a gift
into alms, when the object is a poor man;
and alms into a gift, when the object is a
rich man, — because of the similarity betwixt
these deeds, as each is a conveyance of pro-
perty without an exchange. Hence Haneefa
486 GIFTS
serves a right to his gift, so long as he does
not obtain a return for it." — SECONDLY, the
object of a gift to a stranger is a return; —
for it is a custom to send presents to a person
of high rank that he may protect the donor ;
to a person of inferior rank that the donor
may obtain his services ; and to a person of
equal rank that he may obtain an equivalent ;
— and such being the case, it follows that the
donor has a power of annulment, so long as
the object of the deed is not answered, since
a gift is capable of annulment. With respect
to the tradition of the Prophet quoted by
Shafei, the meaning of it is that the donor is
not himself empowered to retract his gift, as
that must be done by a decree of the Kazee,
with the consent of the donee,— -excepting in
the case of a father, who is himself competent
to retract a gift to his son, when he wants it
for the maintenance of the son ; and this is
metaphorically termed a retractation, — it is
to be observed, however, that although a
retractat.on of a gift be agreeal le to the
letter of the law, still it induce abomina-
tion ; for the Prophet has said. "The retrac
tation of a gift is like eating one's spittle."
But there are various circumstances which
bar the retractation. — IT is further to be
observed, that th* bars to a retractation of
a gift are many, — amongst which are the
following : — I. The donee giving the donor a
return of consideration ; because this fulfils
the donor's object. — U. The incorporation of
an increase with the gift : because in that
instance a retractation cannot take place
without including the increase, as that is
implicated ; and it cannot take place so as to
include the increase, since that was not
included in the deed of gift, — III. The death
of one of the parties ; for if the donee should
die, his property shifts to his heir, and
becomes the same as if it had shifted during
his lifetime ; and if the donor should die, his
heirs are strangers with respect to the con-
tract, since they made no tender of the thing
given. — IV. The alienation of the gift from
the donee's property during his lifetime ;
because this is a consequence of the power
vested in him by the gift, which power
therefore, cannot then be retracted ; and also
because the right of property has regenerated
in another person, in virtue of a fresh cause,
namely, conveyance to a second donee ; and
as a regeneration of the right of property
is equivalent to an essential change in the
thing, the case is therefore the same as if the
gift were to become, in effect, a different
thing from what it was, and consequently
not liable to retractation.
A gift of land cannot be retracted after
the donee has built or planted on it.— IF a
person make a gift to another of a piece of
land destitute of buildings or plantations,
and the donee plant trees in it, or build a
house, a stable, or a shop of such a size as to
be deemed an increase, in that case the donor
is not entitled to retract the gift, because of
the increase which it has received. — The
restriction it stated with respect to the shop,
[VOL. III.
because shops are sometimes so small as not
to be deemed an increase, and sometimes the
land is very extensive, the shop occupying
only one particular part of it : in which case
the bar operates only with respect to that
part.
After the sale of a part of the land by the
donee, the donor may resume the remainder.
— IF the donee sell one half of granted land
undivided, the donor may in that case resume
the other half, as to the resumption of that
no bar exists. If, on the other hand, the
donee should not have sold any part of the
land, the donor may resume one ha !f of it,
for as he is entitled to resume the whole, it
follows that he is entitled to resume the half,
a fortiori.
A gift to a kinsman cannot be resumed. —
IF a person make a gift of anything to his
relation within the. prohibited degrees, it is
not lawful for him to resume it, because the
Prophet has said. "When a gift is made to a
prohibited relation, it must not be resumed ;"
— and also because the object of the gift is
an increase of the ties of affinity, which is
thereby obtained.
Nor a gift to a husband or wife during
marriage. — IF a husband make a gift of any
thing to his wife, or a wife to her husband, it
cannot be retracted, because the object of the
gift is an improvement of affection (in the
same manner as in the case of presents to
relations) ; and as the object is obtained,
the gift cannot be retracted.* This object,
however, is to be regarded only during the
existent period of the contract ; insomuch
that if a person give something to a strange
woman, and afterwards marry her, he may
retract the gift ; — whereas, if a man give
something to his wife, and afterwards divorce
her three times, he is not entitled to retract
the gift.
The receipt of a return prohibits retracta-
tion.—I r the donee say to the donor. "Take
this thing in exchange for your gift," and
he accept it, the right of retractation is an-
nulled, because of the donor having obtained
the object of his gift.
Although the return be given by a stranger,
— IF a stranger, on behalf of a donee, give
something gratuitously f to the donor in ex-
change for his gift, and the donor accept the
same, the right of retractation then ceases ;
because a stranger may lawfully give a com-
pensation for the relmquishment of a right,
in the same manner as in cases of Khoola or
composition.
If a part of the gift prove the property or
another, a proportionable part uf the returJn
may be resumed.— IF the half ot a gift prove
* Because of the existence of the first bar
before mentioned : for the increase of affection
excited in the wife by the gift is supposed,
by the law, to be a return which she pays
for it, and which consequently deprives the
donor of the power of retractation.
fArab. Tibbarran ; that is, of his awn
accord, and without solicitation.
BOOK XXX.— CHAP. II. J
GIFTS
487
the property of some other than the donor,
the donee is in that case entitled to take
back from the donor half of return he
may have made him for the gift, since the
thing opposed to that half was not secured
and rendered safe to him. If, on the con-
trary, half the return prove the property of
some other than donee, the donor is not
in that case entitled to take back from the
donee a particular part of the gift ; but he
may restore the remaining part of the return,
and then resume the whole of the gift from
the donee. — Ziffer maintains that the donor
may take back half of the gift, as he con-
siders this case to be analogous to that of
part of the gift proving the property of
another.— The reasoning of our doctors, in
support of thz their opinion, is that the remain-
ing part of the return has a fitness to be
considered as a return for the whole of the
gift from the beginning : as, moreover, in
consequence of half the return proving the
right of another, it becomes apparent that
there is no other return for the gift than the
remaining part, it follows that the donor is
not entitled to resume an equivalent from
the gift. — He is, however, allowed an option
in this instance, with respect to the whole
gift, because he did not relinquish his right
of retractation on any other condition than
that of the security of the whole of the
return ; and as that does not p-rove com-
pletely secure to him, he is therefore at
liberty to restore the remaining half of the
return, and to take back the whole of the
gift.
When the return is opposed only to a part
the remainder of the gift may be resumed.-—
IF a person make a gift of a house to another,
and the donee give a return to the donor for
a half only of the house so given, the donor
may in that case resume the half of the
house for which he received no exchange,
since a bar to his retractation existed only
with respect to the other half
Retractation requires mutual consent, or
decree. — A GIFT cannot lawfully be retracted
but with the consent of both parties, or by a
decree of the Kazee, because the retractation
of a gift is a disputed po nt amongst the
learned. There is, moreover, a degree of
weakness in a retraction, because the ad-
mission of it contrary to analogy, since it
is a power over the property of another, as
the right of property in a gift is established
in the donee. Besides, as there may arise
contention with respect to the object in lieu
of it (since the donor may claim something
which the donee may refuse), the contention,
therefore, cannot possibly be settled but by
the consent of the parties, or by a decree of
the Kazee, — insomuch that if the gift be a
slave, and the donee should have emanci-
pated him previous to the decree of the
Kazee, the emancipation holds good. If the
donor should prohibit the donee from keep-
ing possession of the gift, and he neverthe-
less retain possession of it, and it be lost or
destroyed in his hands, he is not responsible
"or it, because his right of property in it is
icld still to continue in force — The same
rule also holds where the gift is lost or de-
stroyed in the possession of the donee, sub-
sequent to the decree of the Kazee, but prior
;o the demand of it by the donor, because
he original tenure by which he held it was
not a tenure of responsibility, and that
tenure still exists.— But if the donor de-
mand the article, and prohibit the donee
From keeping possession of it, subsequent to
a decree of the Kazee, and the donee never-
theless continue to retain it, he is respon-
sibl* for it, as he is then guilty of a trans-
gression
The donor's re-possession of the gift is not
requisite to the validity of retractation. —
WHEN a person retracts his gift, either in
virtue of a decree of the Kazee, or of the
mutual consent of the parties, it is an annul-
ment of the original gift, and not a gift* de-
novp on the part of the donee, and therefore
seisin by the donor is not in such case a
requisite condition. Retractation, moreover,
is lawful with respect to an undivided por-
tion ; but if a retractation were a gift de novo
seisin would be a requisite condition, and
consequently retractation with respect to an
undivided portion would not be lawful. The
reason of this is that a deed of gift is valid
under the reservation of a right of annul-
ment. The -jdonor, therefore, in annulling
the deed, does no more than possess himself
of his own established right : and hence a
retractation is an annulment in all cases, that
is, whether it take place in virtue of a
decree of the Kazee, or by the consent of
both parties. — It is otherwise with respect to
a buyer's return of goods on account of a de-
fect without a decree of the Kazee ; for that
with respect to a third person, is considered as
a contract de novo, since the purchaser has not
a power of annulment but has merely a right
to the quality of safety in the goods ; anoTin
defect of that quality, he is, from a principle
of necessity, allowed to annul the contract.
— Its being an annullment, therefore, with
respect to any third person, must depend
upon the Kazee's decree.— Hence there is an
essential difference between the retraction
of a gift, and the return of goods on account
of a defect.
The donee, incurring any responsibility in
consequence of a gift, receives no compensa-
tion from the donor. — IF the substance of a
gift prove the property of another after it has
been destroyed, and the donee make good the
loss to the proprietor, in that case he is not
entitled to receive anything in compensation
from the donor ; because a gift is a gratuitous
contract, and a donee has no right to the secu-
rity or safety of the gift, nor is he entitled
to act in behalf of the donor. — Hence he is
not entitled to any thing from the donor, not-
withstanding the fraud that has been prac-
tised upon him ; for although fraud be a cause
of, resumption in a contract of mutual ex-
change, it is not so in contract not of
mutual exchange.
488
GIFTS
[VOL. Ill,
A mutual gift requires mutual seisin. — IF
a person give something to another on con-
dition of that other giving something to him
in exchange for it, the mutual seisin of the
respective returns is regarded ; that is to
say, the contract is nothing until the two
seisins take pi act, and is made null by the
subject of it, on either side, being mixed
with other property. — The reason of this i>>,
that a deed of this nature is in its or ginal
a gift ; but when the two seisins take
place, it becomes, in effect, a sale ; and, as
such, return may be made on account of
a defect or from an option of inspection :
and the right of Shaffa is also connected with
it. — Ziffer and Shafei maintain thit th«s is
a sale both original and ultimately, in as
much as the characterise of sale, namely,
a conveyance of property for a return, exists
in it ; and in all contracts regard must be
paid to the spirit of them, insomuch that if
a master should sell his own slave to the slave
himself, he [the slave] is in that case free.
— The arguments of our doctors are, that the
contract comprehends two different shapes or
descriptions. — I. It is a gift with respect to
the letter. — II. IT is a sale with respect 10
the spirit. It is therefore requisite to pay at-
tention to both in the utmost possible degree.
Now, in the deed at present under considera-
tion, an observance of both is practicable ;
because, in a gift, the right of property is
suspended till seisin : and ; in a sale, the
right of property is undone in case of any
invalidity. The effect of sale moreover is
obligation : and a gift also becomes obliga-
tory upon giving a return for it. — Out of
attention, therefore, to both shapes, the con-
tract is considered as being originally a gift,
and ultimately a sale. It is otherwise with
respect to the sale of the person of a slave to
the slave himself ; for it is impossible in any
respect to consider this as a sale, since a slave
cannot possibly be master of himself.
Section
The gift of a pregnant slave includes a gift
of her Jcetus. — IF a person make a gift to
another of a female slave, and except the
child in her womb, the gift is valid : — but
the exception is null ; because an exception
is never valid unless it relate to such a thing
as might have been the subject of the deed ;
and a child in the womb cannot be the sub-
ject of gift, because it is equivalent to a
constituent part, like the members of the
body, as has been already shown in treating
of sale j— such, therefore, being the case, the
exception is in effect the same as an invalid
condition : hence the gift remains in force ;
and the exception is null. — The same rule
also holds in cases of marriage, Khoola, and
composition for wilful bloodshed : — that is to
say, if a person assign a female slave (for
instance) as the dower, in marriage, or as
the consideration for Khoola, or the compo-
sition for wilful bloodshed, and except the
child in her womb, the deed is valid, but
the exception is null ; because none of these
contracts are invalidated by the insertion
of an invalid condition, — It is otherwise in
cases of sa'e, lease, or pawnage ; for these
are all rendered invalid by involving an
invalid condition.
Unless that h&ve been previously emanci-
pated ~-!F a master emancipate the foetus in
the womb of his female slave, and after-
wards make a gift of the slave to some per-
son it is valid ; because as the foetus is not,
in this instance, the property of the donor,
it therefore is not dependant on the gift, in
the manner that an exception is
If the foetus hive been previously created
a Modabbir, the g'/t is null — IF a master
create the foetus in the womb of his female
slave a Modabbir, and afterwards make a
gift of the slave to some psrson, the gift
is not valid : because the child of the said
slave still remains his property, and there-
fore his act of making it Modabbir does not
resemble an exception, but rather operates
as a total bar to the legality of the gift : for
as it is impossible to render the gift valid
with respect to the child, because of his
being a Modabbir it bscomes the same as
the gift of an undivided portion, or as the
gift of a thing involved with the property
of the donor.
The gift of a thing renders all provision*!
conditions respecting it nugatory — IF a per-
son make a gift of his female slave to another,
on condition that he restore her to him, or
that he emancipate her, or create her an Am-
Walid, or, if a percent make a gift of a house
to another, on condit.on that the donee give
back a part of it, -—or, if a person make a
gift of his house in charity to another on
condition that the receiver of the charity
give him something in exchange for part of
the house, — such gift or charity is valid ; but
the condition annexed is invalid, because it
is contrary to the spirit or intendmcnt of the
contract ; and neither gifts not charities are
affected by bein? accompanied wilh an in-
valid condition, because the Prophet approved
of Atnrees [gifts for life], but held the con-
dition annexed to them by the granter* to
be void — It is otherwise in sale ; because
the Prophet has prohibited sale with an
invalid condition ; and also because invalid
conditions, as being in the nature of usury
manifest their effects in contracts of ex-
change, but not in such as are not of the
description of exchange.
The gift of a debt, by a conditional exemp-
tion from it, is null. — IF a person, having
a debt due to him of one thousand dirms,
should say to the debtor "when to-morrow
arrives the said thousand dirms are your
property," — or, "you are exempted from the
debt/' — or, if he should say "whenever your
pay me one half of the said thousand the
other half is your property," or "you are
exempted from the debt of the other half,"
— the gift so make is null. The reason of
*Namely, the condition of restoration
ftupon the demise of the grantee.
BOOK XXXI.]
GIFTS.
489
this is that the gift of a debt to a debtor is
an exemption : but an exemption has two
meanings: — I, It is a conveyance of pro-
perty, on the principle of debts being pro-
perty, on which account lawyers have held
that "an exemption may be undone by a
rejection :"— II. It is an annulment, since
debt is in the nature of a quality, on which
account an exemption does not rest upon
acceptance, — Now nothing can be suspended
on a condition excepting an utter annul-
ment, such as a divorce or an emancipation;
— and an exemption (as has been already
said) is not an utter annulment, and there-
fore cannot be suspended on a condition, but
on the contrary is perfectly nugatorv,
Case of life- grants. — AN Amree: or life-
grant, «s lawful to the grantee during his
life, and descends to his heirs, because of
the tradition before quoted. — Besides, the
meaning of Amree ir a gift of a house (for
example) during the life of the donee, on
condition of its being returned upon his
death. — The conveyance of the house, there-
fore, is valH without any return ; and the
condition annexed is null, because the Pro-
phet has sanctioned the gift in this instance,
and annulled the condition, as before men-
tioned. An Amree, moreover, is nothing but
a gift and a condition ; and the condition is
invalid ; but a gift is not rendered null by
involving an invalid condition, as has been
already demonstrated.
IF one person say to another, "my house
is yours by way of Rikba," it is null, ac-
conding to Haneefa and Mohammed. Aboo
Yoosaf has said that it is valid, because his
declaration "my house it yours," is a con-
veyance of the house ; and the condition of
Rikba is invalid ; because the meaning of
this phrase is "if I die before you then my
house is yours," — that is to say, he waits in
expectation of the other's death, that that the
house may revert to himself : — Rikba, there-
fore, resembles Amree. — The arguments of
Haneefa and Mohammed upon this point are
twofold, — FIRST, the Prophet has legalized
Amree and annulled Rikba. — SECONDLY, the
meaning of "my house is yours by way of
Rikba," is "if I die before you, my house
is yours," which is a suspension of the con-
veyance of property upon the decease of the
donor previous to that of the donee: and
this is a matter of doubt and uncertainty,
and consequently null. — It is to be observed
that Rikba is derived from In tikab, which
means expectation ; for the donor is, as it
were, an expectant of the death of the
donee.
Section.
Of Sadka, or Alms-deed.
Alms-deed requires seisin of the subject —
ALMS-DEED, like gift, is not valid unless
attended with seisin, as it it gratuitous, in
the same manner as a gift, Neither is an
alms lawful, where it consists of an undivided
part of a thing capable of division, for the
reasons already explained in the case of a
gift under these circumstances.
And cannot be retracted. — RETRACTATION
of alms is not lawful ; because the object, in
alms, is merit in the sight of GOD, and that
has been obtained. If, also a person bestow
alms upon a rich man it is not lawful to
retract therefrom, on a favourable construc-
tion of the law, because to acquire merit in
the sight of GOD may sometimes be the
object in bestowing alms upon the rich — In
the same manner also, if a person make a gift
of any thing to a poor man, it is not lawful
to retract it, because the object in such gift
is merit, and that has been obtained.
Distinction between votive vows of Mai-
and Milk, in alms. —I F a person vow to
devote his property [Mai] in charity, let him
give of that kind on which it is incumbent
upon him to pay Zakat. — If, on the other
hand, he vow to devote his possessions
[Milk], he must give the whole of his pro-
perty — It is related that there is no differ-
ence ''between these two cases. — We have,
however, in treating of the duties of the
Kazee, shown the difference between Mai
and Milk ; and also the principles on which
both these traditions proceed, — It is to be
observed that, in this case, the person that
made the vow must be told to reserve for
himself and his family as much of his pro-
perty as may suffice for their maintenance
until he able to acquire more. The re-
mainder, after such reservation, must be
bestowed in charity ; and after he has ac-
quired more, he must then give in charity
a portion equal to what he had reserved for
the subsistence of himself and family. —
An explanation of this has already been
given in treating of inheritance, under the
head of duties of the KAZEE.
BOOK XXXI.
OF IJARA, OR HIRE.
Definition of the terms used in hire.—
IIARA, in its primitive sense, signifies a tale
of usufruct ; namely, a sale of certain usu-
fruct for a certain hire, such, as rent or
waces In the language of the LAW it signi-
fies a contract of usufruct for a return.—
(Analogy is repugnant to the validity of
hire, as the thing contracted for. namely,
the usufruct, is a nonentity : and the refer-
ring an investiture to a thing which is forth-
coming is in valid.-The contract in question
fs howlver valid : because mankind stand in
need of such contract; and also, because
£1 Prophet has said, "Pay the hireling his
wages before the sweat has dried from his
brow •" and also, "If a person hire another,
let him inform him of the wages he is to
receive" "-The hirer or the lessee is termed
AUr or Mawjir ; and the lessor, or the per-
son who ^ceites the w is deno-
minated the Moostajir,
490
HIRE.
[VOL. III.
Chap* I, — Introductory.
Chap. II.— Of the Time when the Hire-
may be claimed.
Chap, III.— Of Thinge the Hire of which
is unlawful or otherwise ; — and of
disputed Hire.
Chap. IV,— Of invalid Hire.
Chap. V. — Of the responsibility of a
Hireling.
Chap. VI. — Of Hire on one of two Con-
ditions.
Chap, VII.— Of the Hire of Slaves.
Chap. VIII. — Of Disputes between the
Hirer and the Hireling *
Chap. IX. — Of the Dissolution of Hire,
CHAPTER I.
The usufruct and the hire |must be particu-
larly specified.— A CONTRACT of hire is not
valid unless both the usufruct and the hiref
be particularly known and specified, because
of the saying of the Prophet, "If a person
hire another, let him inform him of the wages
he is to receive."
OBJECTION. — It would appear, from that
saying, that a knowledge of the hire alone is
requisite, not a knowledge of the usufruct.
REPLY. — The usufruct is the subject of the
contract, and the hire the thing contracted
for. — Now the subject is the principal in a
contract, and the thing contracted for the
dependant : as therefore a knowledge of the
dependart (namely the hire) is requisite, it
follows that a knowledge of the principal is
requisite a fortori : — consequently 7a know-
ledge of the usufruct is established, from the
tradition in question, by inference. — and
also, because ignorance with respect to the
subject of the contract, and the return, tends
to excite contention, in the same manner as
ignorance with respect to the price and the
article in a contract of sale,
The hire (or recompense) may consist of
anything capable of being price. — WHATEVER
is lawful as a price, is also lawful as a recom-
pense in hire ; because the recompense is a
price paid for the usufruct, and is therefore
analogous to the price of an article pur-
chased— All articles, moreover, which are
incapable of constituting price (like things
not of the description of similars, such as a
slave, or cloth), are nevertheless a fit recom-
pense in hire, since those constitute a return
consisting of PROPERTY.
• The former of these terms is |remarkably
ambiguous in our language. It sometimes
serves to express the person who lets to hire,
as we speak of a man who hires horses. For
the sake of accuracy, however, the translator
has uniformity, in this treatise, employed the
word "hirer," to express the person who
engages the service of another, or the use of
any article, as we commonly mean when we
speak of a person who hires a servant, &c.
t A-ab. Ujara ; meaning the wages, rent,
recompense, &e., according to the subject to
which it applies.
The €xtent of the usufruct may be defined
by fixing a term — THE extent of usufruct
may be defined by fixing a term ; as in the
hire of a house for the purpose of residence,
or the hire of land for the purpose of cultiva-
tion.— A contract of hire, therefore, stipu-
lated for a certain term, to whatever extent,
is valid : because, upon the term being
known, the extent of the usufruct for that
term is also known. This proceeds on a *up-
position of the use not being various. —
Where, however, the uses to which the
article is to be applied are various, the
usufruct cannot be ascertained by the mere
declaration of a term : as in the case, for
instance, of hiring ground, for a certain
term, for the purpose of cultivation, which
contract is invalid unless it express the par-
ticular species of cultivation, since some
modes of tillage are injurious to the land,
and others are not so. — It is to be observed
that the expression of our author "for
whatever term." denotes that hire is valid,
whether it be fora long or a short term, as
the term is ascertained, and men, moreover,
frequently require a long term, If, how-
ever, the Mootwalee [procurator] of a charit-
able appropriation let out the appropriated
article, the hire of it for any long term is
made unlawful, lest the lessee might be
enabled to advance a claim of right to it. —
Hire for a long term, signifies for any term
beyond three years This is approved.
Or (in hiring servants. Sec.) by specifying
the work to be performed. — USUFRUCT may
also be ascertained by a specification of work,
as where a person hires another to dye or sew
clothe for him, or an animal for the purpose
of carrying a certain burden, or of riding
upon it a certain distance, — because, upon
showing the cloth, and mentioning a particu-
lar colour, and the degree of the dyeing (such
as dipping once or twice, of instance) in the
first case, — or explaining the nature of the
needlework (such as whether it is to be after
the Persian or Turkish fashion) in the second
case, — or explaining the weight and nature
of the load in the third case,— or the length
of the journey in the fourth case,— the
usufruct is fully ascertained ; and the con-
tract is consequently valid. — It moreover
frequently happens that a contract of hire is
a contract for work, as in the case of hiring
a fuller or a tailor, where it is requisite that
the \\ork be particularly specified, It is
also sometimes a contract for usufruct, as in
the case of hiring a domestic servant ; and
in this case a specification of the term is
requisite.
Or by specification and pointed reference. —
— USUFRUCT may also be ascertained by
specification and pointed reference ; as where
a person hires another to carry such a par-
ticular load to such a particular place ; be-
cause, upon seeing the load and the place to
which it is to be carried, the service to be
performed is precisely ascertained : and the
contract is consequently valid.
BOOK XXXI.— CHAP. II.]
HIRE
491
CHAPTER II.
OF THE TIME WHEN TH* HIRE MAY BE
CLAIMED.
Hire can only be claimed tn virtue of an
agreement, or in consequence of the end of
the contract being obtained.— HIRE is not due
immediately on concluding the contract, but
becomes claimable on one of three grounds :
for it is claimable in advance, in virtue of a
previous agreement — or in advance, inde-
pendent o* such agreement, — or, in conse-
quence of the hirer obtaining the thing con-
tracted for.* Shafei maintain that it be-
comes a property immediately upon the
conclusion of the contract ; because a non-
existent usufruct is accounted existent from
the necessity of giving val d.ty to the con-
tract ; and consequently the effect (which is
right oi property) is established with respect
to the thing opposed to the usufruct, namely,
the consideration or recompense, — The argu-
ment of our doctors is that a contract of hire
is renewed every instant according to the
occurrence of the usufruct, as has been
already explained. — Now the contract in
question is a contract of exchange, which
requires that the consideration and the re-
turn be equal. Hence, because of the un-
avoidable delay attending the usufruct, there
must also be a delay with respect to the re-
turn for it, namely, the hire ; but upon the
usufruct being obtained, a right of property
takes place with respect to the hire, in order
that equality may be established ; — and so
also, where it is stipulated that the hire
shall be in advance, or where it is paid in
advance; because equa'ity was required on
account of the right of the hirer, who, in this
instance, foregoes his right.
The tenant becomes bound for the rent by
a delivery of the house, &c , to him. — UPON
a tenant taking possession of a house he
becomes bound for the rent, although he
should not reside therein ; because as it is
impossible to make delivery of the usufruct,
the delivery of the subject from which the
usufruct is derived it a substitute for it ;
since in delivering the article an ability to
enjoy the usufruct is established.
So long as it is not usurped from him —
IF, therefore, any person were to usurp the
house from the tenant he [the tenant] is
no longer responsible for the rent ; because
a delivery of the article was admitted to
be a substitute for a delivery of the usu-
fruct only, as this enabled the tenant to
enjoy the usufruct ; but when the one no
longer remains, the other ceases cf course ;
and as the contract is thereby broken, the
rent consequently ceases, — If, also, a person
usurp the house at any time before the ex-
piration of the term of the lease, the agent
drops in proportion, since the contract is
broken in that proportion.
If it be not otherwise specified in the con-
*Namely, the usufruct, work, or so forth
tract, rent may be demanded from day to
day — IF a person hire a house, the lessor is
at liberty to demand the rent from the tenant
from day to day, because the object wa§
daily use, and that has been obtained ; the
lessor may therefore insist upon his rent
from day to day, unless the time for claiming
the rent be specified in the contract, as if
that were to express that " the rent shall be
paid at such a time."— or, "at the expira-
tion of such a month."— since this amounts
to a stipulation of ready payment.— The same
rule also obtains with respect to a lease of
land, for the same reason.
Or the hire of an animal (upon a journey)
from stage to stage. — IN the same manner also,
if a person hire a camel to Mecca (for instance)
the owner is at liberty to insist upon the hire
stage by stage, because the object wag to
travel by stages.— What is here advanced is
an opinion which was subsequently adopted
by Haneefa. He was at first of opinion that
the rent is not due, in the former instance,
until the expiration of the term ; nor the
hire, in the latter, until the end of the
journey (and such is the doctrine of Ziffer) ;
because, as the object of the contract is the
whole of the usufruct within the time or
iourney specified, it follows that the hire
cannot be separately applied to separate por-
tions of it:— in the same manner as where
the object of the contract is labour, by a
person hiring a tailor (for instance) to sew
his garment.— The reason for the last opinion
of Haneefa is that analogy requires that the
hire be demanded from instant to instant ; m
order that equally may be established. If,
however, the demand were admitted every
instant, it would follow that the hirer or
lessee would be perpetually employed in pay-
ing the hire, without leisure to attend to any
thins else, which would be highly incon-
venient and injurious to him.-For this
reason: therefore, the proportion is deter-
mined at the rate of one day, m the hire of
T house or land,-and atone stage, m the
hire of a quadruped.
A workman is not entitled to any thing
°s work be finished.-* WORKMAN is
in tb. H«d.y.
-
Seining & ca~, therefore, there .re
492
HIRE
[VOL. ill
two opinions, as is mentioned in the
Jama Ramooz. — If an advance of hire be
stipulated in the agreement, the workman
is in such case at liberty to require his pay
before his work be finished, as a stipulation of
this nature, in a contract of hire, is binding,
Case of a baker hired to bake bread. — IF a
person hire a baker to bake bread in his [the
nirer's] house, at the rate of one Kafeez of
flour for a dirm, the baker so hired is not
entitled to his wages until he draw the bread
out of the oven, since until this be done his
work is not completed. If, therefore, the
bread be burnt, or fall out of his hands, and
thus be spoiled, he is not entitled to his hire,
because of the destruction of the bread before
delivery of it to the hirer — If, on the other
hand, he draw the bread out of the oven
and it be afterwards burnt or otherwise
destroyed, without his act, he is entitled to
his hire, because he has made a due delivery
or it to the hirer, in virtue of having depo-
sited it in his house ; neither is he, in this
instance, liable to make any compensation,
as he has not been guilty of any transgres-
sion.—The compiler of the Hedaya remarks
that this is according to Haneefa, proceeding
on the idea that the bread is a trust in the
baker's hands ; — but that the two disciples
maintain that the hirer has it in his option
to exact a compensation for the value of the
flour only ; and that in this case he is not to
pay the baker any part of his hire, since (as
they hold) the bread is insured with the
baker, whence he is not exempted from re-
sponsibility until he duly deliver it to the
hirer :— or, if he please, he may exact a com-
pensation for the bread, paying the hire for
the baking.
And of a cook. — IF a person hire a cook to
prepare an entertainment, he [the cook] must
also dish the meat, as this is customary.
And of a brickmaker. — IF a person hire
another to make him a certain quantity of
bricks, he [the brickmaker] is entitled to his
hire when he sets up the bricks, *according to
Haneefa. — The two disciples hold that he is
not entitled to his hire until he collect the
bricks together and build them up, because
it is this which completes his work, since
bricks are not secured from injury until they
be so collected and built up — the collecting
them together, therefore, is analogous to
drawing bread out of the oven. — Besides,
this is what is always customary with persons
hired for such work ; and custom is regarded
in every matter concerning which we have
no express ordinance. — The argument of
Haneefa is that the work is completely
finished by setting up the bricks, the collect-
* The case here considered has a reference
to the various stages of brick-making, and
relates merely to sun-dried bricks, the burn-
ing being a different trade. — The bricks are
first molded ; then, when half dried, set up
on end; rand when completely dried, built
into stacks for use.
ing them together and stacking them being
an extra business, in the same manner as
removal from one place to another ; and acc-
ordingly people take bricks, to build with,
from the place where they have been set up,
without waiting for the stacking of them —
It is otherwise before they are set up, since
the clay is not then hardened : and it is also
otherwise with bread, as the use of that ca-
not be obtained until it be drawn out of the
oven.
The article wrought upon may be detained
by the workman until he be paid his hire.
— EVERY artificer whose work produce a
visible effect upon an article (such as a
dyer or fuller) is at liberty to Detain such
article until he receive his hire ; because in
this instance the subject of the contract is
descriptively existent in the article, whence
he is allowed to detain it with a view to re-
ceiving the return for such subject, in the
same mnnneras if it were an article of sale ;
— in other words, as the seller is allowed to
detain the article sole until he receive the
price, so also in the case in question.
And he is not responsible, in case of acci-
dents, during such detention.— Ivt therefore,
a dyer or fuller detain cloth for the purpose of
being paid his hire and the cloth perish in
his hands he is not responsible, according to
Haneefa, inasmuch as he has not transgressed
in so detaining it, the cloth remaining as a de-
posit with him after detention, in the same
manner as before. — He is not, however, in this
case entitled to any hire, because of the subject
of the contract perishing be fore deli very; —The
two disciples hold that the cloth is a subject
of responsibility before detention, ami so also
afier detention : but that the owner of the
cloth has it at his option either to take a
compensation for the value of the cloth as it
stood before the fulling or dyeing, — in which
case the workman is not entitled to any pay
—or to take a compensation for the value of
it as it stood after the work, — in which case
the workman is entitled to his hire. — This
shall be more fully explained hereafter.
If the work be of a nature not to produce
any visible effect in the article t it cannot be
detained — A WORKMAN, the effect of whose
labour is not visibly extant in an article
(such as a boatman, or a porter), is not at
liberty to detain the article with a view to
receiving the hire ; because, in this instance,
the subject of the contract is merely labour,
which is in no manner existent in the article
conveyed or carried : — and the washing or
bleaching of cloth is analogous to the por-
terage of ic in this particular. From this
analogy in regard to washing or bleaching
it may be inferred that the term fuller
[Kissar] in the preceding example, applies
solely to one who uses starch, or such other
material ; but, that where such a person, in
cleaning cloth, makes use of things of no
estimable value, such as water and sunshine,
he has no right of detention, since in such
case nothing remains that can be termed an
effect from his labour, the whiteness being
BOOK XXXI.— CHAP II.]
HIRE
493
an original quality inherent in the cloth.
Kazee Khan says, that if a fuller wash cloth,
and an effect be produced from his work
by means of starch (for instance), he has a
right of detention ; but that if he merely
whiten the cloth, there is in that case a dif-
ference of opinion. The approved doctrine,
however ; is that he has a right of detention
in either care ; because the whiteness was a
quality concealed in the cloth, and brought
forth by his labour. This is different from
the case of a fugitive slave ; for the restorer
is entitled to detain a fugitive slave with a
view to his reward, notwithstan ling there be
no visible effect produced in the slave ; the
reason of which is, that the slave was in
danger of being altogether lost, and was pre-
served only by the restorer bringing him
back ; whence he may be said to sell the slave
fo his owner, and conpequently, that he has a
right of detention. What is here advanced
is according to our three doctors. Ziffer
maintains that a workman possesses no right
of detention in either case ; that is, whether
the effect be existent in the article, or other-
wise ; — because, where his work is attended
with an effect existent in the article he has
already made a delivery of the same to the
hirer, as having blended it with his pro-
perty ; and a right of detention necessarily
ceases upon delivery. Our doctors, on the
other hand, argue that the workman, in
blending the effect of his work with the
hirer's property, ha^ aUoJ merely from neces-
sity, since unless he were so to do it would be
impossible io perform the work. This impli-
cation, i here for , does i.ot int r that ihe worl-
man intends or designs a delivery ; and htnce
his right to detention does not cease ; in the
same manner as where, in a sale, the pur-
chaser takes possession of the merchandise
without the seller's consent : in which case
the seller's right of detention with a view to
receiving the pric3, does not ceases; and so
also in the case in question.
A workman, if the contract be restricted to
his work, cannot employ any other person. —
IF the hirer stipulate with the workman that
he shall himself perform the work, he [the
workman] is not at liberty to employ any
other person ; because the subject of the con-
tract is the work of this person and not of any
other, and therefore the right of the hirer is
connected with his work in particular, in the
same manner as the right of the person who
hires a place or an article is connected with
the use of that particular place or article.
If, on the other hand, the work be absolute,
without any stipulation that the workman
shall himself perform it (as if a person were
to say to a tailor "Make up this garment")
the workman is at liberty to hire any other
person to perform the work, as the right of
the hirer, in this instance, is merely to tailor's
work, which may be performed either by this
or by any other tailor : in the same manner
as the payment of a debt, which may be
made either by the debtor himself, or by any
other person.
Section
Cases in which (from an unavoidable acci-
dent) the contract cannot be completely ful-
filled.— IP a person hire another to go to
Basra, and bring his family thence, and this
person accordingly go to Ba<-ra, and there
find some of the family dead, and bring away
the remainder, he is entitled to his whole hire
for the journey to Basra, and to a hire for re-
turning back in proportion to the number he
brings with him ; because, as he has per-
formed a part of his contract, and not the
whole, it follows that he is entitled to an
equivalent for what he performs, and that
his t ight is annulled in proportion to what he
does not perform The compikr of the Hedaya
j remarks that this proceeds upon a supposition
of the nun.ber of ihe family being gieviously
ascertained, so as to oppose the hire agreed
upon to the whole ; for otherwise the whole
hire is due. This rule, moreover, obtains
only where the expenses of the remainder are
materially lessened by the death of some ;
for if the expense of the whole be not thereby
diminished (as where those who died were
not grown up, but yet able to travel on foot),
the person in question is still entitled to his
whole hire.
Ira perton hire another to carry a letter
to Basra and bring back an answer, and he
accordingly go to Basra, and there find the
person dead, to whom the letter is addressed,
| and come back and return the letter, he is
not entitled to any wages whatever. This
is according to the two disciples. Mohammed
I maintains, that he is to receive the usual
I hire for going to Basra, since in so doing he
| has performed a part of the contract,
i namely, the journey ; the reason of which
is that the hire or recompense is in lieu of
the journey, as it is that which is attended
with labour, not the carriage of the letter.
The argument of the two disciples is, that
the carriage of the letter is the thing con-
tracted tor ; either because that is the
design (the letter being intended as a
compliment to the person to whom it is
addressed), or because the carriage of the
letter is a means of accomplishing the
design of it, namely, a communication of its
contents. The title to wages, therefore,
depends upon the carriage of tne letter ;
but, upon the messenger returning the
letter; the contract is broken, ail . his claim
towages consequently ceases; — in the same
manner as in the next following example
concerning wheat. If, however, in the case
in question, the messenger leave the letter
at Basra, and return, he is entitled to a hire
for the journey thither, according to all out
doctors, since what was contracted for has
been in part performed in this instance
IF a person hire another to carry wheat to
a certain person at Basra, an i he accord-
ingly carry the wheat to Basra, and then
find the person dead to whom it wai con-
signed, and he bring back and return the
wheat to the hirer, he is not entitled to any
thing whatever, according to all our doctors.
494
HIRE
[VOL. III.
as he has failed in the performance of what
he had contracted for. It is otherwise
(according to Mohammed) in the case of the
letter, because in that case (agreeably to his
tenets) the journey was the thing contracted
for, as has been already explained.
CHAPTER III.
OF THINGS THE HIRE OF WHICH IS UNLAW-
FUL OR OTHERWISE J AND OF DISPUTED
HIRE.
A house or shop may be hired without
specifying the particular business to be
carried on in it. — IT is lawful to hire a
house or shop for the purpose of residence,
although no mention be made of the business
to be followed in it ; because, as the ostensi-
ble purpose to which it is to be applied is
residence, this must be taken for granted :
and residence does not admit of various
descriptions. The contract in question is
therefore valid : and the lessee is at liberty
to carry on in the place any business he
pleases, as the case is absolute.
Unless it be of a nature injurious to the
building.— A BLACKSMITH, however, or a
fuller or miller must not reside in the house,
as this would be evidently injurious, since
the exercise of those trades would shake the
building. Although, therefore, the contract
in question be absolute, still it is virtually
restricted to what may not be injurious to
the building.
In a lease of land, the renter is entitled to
the use of road and water — IT is lawful to
hire land for the purpose of cultivation, as
this is the use to which land is commonly
applied. In this case also, the hirer is
entitled to the use of the road leading to the
hand, and likewise to the water (that is, to
his turn of watering) although no mention
of these be made in the contract ; because
land is hired with a view to the use of it,
' which cannot be obtained without a right to
road and water : — both are therefore in-
c/uded, although no mention of them be
made at the time of concluding the con-
tract : — in opposition to a case of sale ; for
in that instance a right to road and water is
not included unless particularly specified,
the end of sale being appropriation, not
present use ; whence it is that it is lawful
to sell an ass's colt, or saltpetre grounds, but
not to hire them.
But the lease is not valid, unless the use to
which it is to be applied be specified.— A
LEASE of land is not valid unless mention be
made of the article to be raised in it,
because land is hired, not only with a view
to cultivation, but also for other purposes,
such as building, and so forth ; moreover,
the articles sown m the land may be of
different qualities since some vegetables
come quickly to maturity, whilst others are
slower of growth. It is therefore requisite
that the article be specified, to avoid dis-
putes between the lessor and lessee ; or, that
the lessor declare "I let the land on this
condition, that the lessee shall raise what-
ever he pleases in it," in which case, as the
lessor expressly leaves the lessee at full
liberty, the uncertainty which might occa-
sion a dispute is removed.
At the expiration of the leaset the land
must be restored in its original state. — IP
person hire unoccupied land, for the pur-
pose of building or planting, it is lawful,
since these are purpose to which land is
applied. Afterwards, however, upon the
term of the lease expiring, it is incumbent
on the lessee to remove his buildings of trees,
and to restore the land to the lessor in such
a state as may leave him no claim upon it*
becauses houses or trees have no specific
limit of existsnce, and if they were left upon
the land it might be injurious to the pro-
prietor. It is otherwise where land is hired
for the purpose of tillage, and the term of
the lease expires at a time when the grain is
yet unripe ; for in such case the grain must
be suffered to remain upon the land, at a
proportionab e rent, until it be fit for reap-
ing, because, as the time that may require is
limited and ascertainable, it is possible to
attend to the right of both parties. In the
case, on the contrary, of trees or buildings,
it is impossible to pay attention to the right
of both parties ; and it is therefore incum-
bent on the lessee to remove his trees or
houses from the land ; — unless the proprietor
of the soil agree to pay him an equivalent,
in which case the right of property in them
devolves to him (still, however, this cannot
be, without the consent of the owner of the
houses or trees ; except where the land is
liable to sustain an injury from the removal,
in which case the proprietor of the land is at
liberty to give an equivalent, and appro-
Criate the trees or houses without the
jssee's consent) ; — or unless the proprietor
of the land assent to the trees or nouses
remaining there, in which case they con-
tinue to appertain to the lessee, and the land
to the landlord j for as the right of removing
them belongs to the landlord he is at liberty
to forego that right. It is written in the
Jama Sagheer that if the term of the lease
be expired* and the land be occupied by
pulse or other garden stuffs, th^se must be
removed ; because as those have no fixed
term of existence, they are therefore analo-
gous to trees.
An absolute contract leave the hirer at
liberty to g.ve the use to any person. — THE
hire of an animal is lawful, either for
carriage or for riding, as to those uses
animals are applied. If, therefore, the
riding be absolutely expressed, the hirer is
at liberty to permit any person he pleases to
ride upon the animal, because of the riding
being contracted for in an absolute manner.
Upon the hirer, however, either mounting
the animal himself, or admitted another to
BOOK
III.]
HIRE
495
ride on it, he is not at libcry to ses any per-
son on it besides* because the actual object
of the contract is then ascertained and
determined. Men, moreover, differ in their
mode of riding, whence it in fact becomes
the sams as if the particulars of the riding
had been expressly stipulated in the con-
tract. In the same manner also, if a person
hire a dress for the purpose of wearing it
unrestrictedly, and in an absolute manner,
he is at liberty either to wear it himself, or
to give it to any other person to wear : but
upon putting it on himself, or permitting
another so to do, he is not at liberty to clothe
any one in it besides.
But in a restricted contract, any deviation
with respect to the use renders the hires re-
sponsible for the article hired. — IF a person
let a quadruped to hire, on condition that a
particular person shall ride upon it, or let a
dress to hire, on condition that a particular
person shall wear it, — and the hirer set upon
the quadruped some other than the person
specified, or give the dress to some other
person to wear, and the quadruped or dress
be destroyed, he [the hirer] is responsible ;
because, as men differ in their manner of
riding, and of wearing clothes, the specifica-
tion of a particular person is valid, and con-
sequently it is not lawful for the hirer to
swerve therefrom. The same rule aho ob-
tains with respect to every thing liable to be
differently affected by a different occupant :
in other words, if the person who lets to hire
restrict the use, it is restricted accordingly ;
and if the hirer swerve therefrom, he is re-
sponsible in case of the destruction of the
article, for the reason above stated.
Unless that be of a nature not liable to in-
jury from such de i at ion. — LAND, however,
and every other article not liable to be
differently affected by a different occupant
(such as a tent or pavilion), is not restricted
in point of use by the mention of a particular
person ; and consequently, the hirer is at
liberty to put any one to reside in it that he
pleases, since the exclusive restriction is of
use only because of its preventing a differ-
ence of effect. 13 ut the residence of persons
whose business is of injurious tendency to a
building (such as blacksmiths, and so forth),
is always excepted from the contract, as was
before explained.
Or, unless the deviation be not of [a nature
to injure the article. — IF a person hire an
animal to carry a burden, and the person
who lets it to hire specify the nature and
quantity of the article with which the hirer
is to load the animal,— as if he were to say,
for instance, "You shall load it with five
Kafeezs of wheat " — the hirer is in this case
at liberty to load the animal with an equal
quantity of any article not more troublesome
or prejudicial in the carriage than wheat, such
as barley, or ape-seed, as all articles of that
description are included in the permission
contained in the contract, because of their
not occasioning and difference, or because
they may be even preferable to what was
specified in it, as being less prejudicial. The
hirer, however, is not at liberty to load the
animal with any article of a more prejudicial
nature, in the carriage, than wheat (such as
salt, for instance), since to this the lessor had
not assented.
IF a person hire an animal th carry a cer-
tain quantity of cotton, he is not at liberty
to load the animal with a similar quantity of
iron, since it is highly probable that the car-
riage of the iron may be m re prejudicial to
the animal than the carriage of the cotton,
for this reason, that the iron presses chiefly
on one spot of the creature's back, whereas
the cotton presses on it equally in all parts.
An excess in the use induces a proportion"
able responsibility in case of accident. — IF a
person hire an animal to carry a certain
quantity of wheat, and load it with a greater
quantity, and the animal perish, he is res-
sponsible in the proportion of the excess load
Thus a person, for instance, hires an animal
to carry ten Kafeezs of wheat, and loads him
with fifteen Kafeezs, and the animal perishes:
— in which case he is responsible for one
third of the value of the animal. The.reason
of this is that the animal -in question has
perished in consequence both of what has
been permitted to the hirer, and also, of
what hs,s not heen permitted ; as,, therefore,
the destruction has been occasioned by the
whole burden, it is divided between both
parts respectively ; and accordingly, nothing
is accounted upon the proportion allowed,
but an indemenification is due upon the pro-
portion unallowed. If, however, the hirer
had overloaded the animal to a degree beyond
what it was able to bear, he is, in this case,
responsible for the whole of the value, sincyc
he was utterly unauthorized to. act thus, as
it is altogether unusual tp do so. . \ r *
A rider, taking wp-un additional rider,
incurs responsibility for half the value of the
animal. — IF a person hire an animal for his
o#n riding, and he take up another person
behind him upon the animal, and the animal
perish, he is responsible for one half of the
value. — No regard is paid to the load in this
instance, because a person who does not un-
derstand riding will hurt an animal's back,
although he be of light weight, as, on the
contrary, a complete rider sits light on horse-
back, although his person be heavy.— Be-
sides, a man is not an article of weight,
whence his weight cannot be ascertained ;
and accordingly regard must be paid to the
number of the riders, in the same manner as,
in offences against the person, regard is paid
to the number of the offenders ; — in other
words; if one person accidentally give another
ten wounds, and a second person give him
one wound, and the wounded person die, the
fine of blood is due from both in equal shares
—What is here advanced proceeds on a sup-
position of the animal in question being
capable of carrying double: for if it be in-
capable of carrying double, the hirer is re-
sponsible for the whole value, in the same
manner as in the case of wheat,— It is also
496
HIRE.
[VOL. III.
to be observed that, in the fame manner as
this rule applies to adults, so does it like-
wise to infants capable of riding alone upon
an animal : but if the hirer place behind
him an infant incapable of riding alone, it
is the same as goods or effects, and he is,
in such case, responsible only in proportion
to the additional load.
An hired animal perishing from ill usage
subjects the hirer to responsibility. — IF a
person hire an animal for riding, and pull
the halter, or beat the animal, so as to
occasion its death, he is responsible for the
whole value, according to Haneefa. The
two disciples maintain that he is not re-
sponsible where he only pulle the halter or
beats the animal in such a degree as is cus-
tomary, since every thing customary is in-
cluded in the contract, and therefore the
case is the same as if he were to perform
those acts by express permission of the
owner, whence he is not responsible. — The
argument of Haneefa is that the owner's
permission is restricted to the condition of
safety, since an animal may be driven with-
out either pulling the halter or beating it,
both of these being an excessive and un-
necessary exertion : the use, therefore, is
restricted to the condition of safety, in the
same manner as the travelling upon the
public highwav.
In the hire or loan of animals, responsi-
bility is induced by any deviation from the pre-
scribed journey. — IF a person hire an animal
to carry him to a particular place (Medina,
for instance), and he go out of his way, and
proceed to another place, and then return
with the animal to Medina, and it die, he is
responsible for it. The same rule also holds
with respect to an animal lent. — Some have
said that this e- ample proceeds upon a sup-
position of the animal being hired merely to
go to Medina (not to go and return), in which
case the hirer is not, in fact, required to
restore it to the owner : but that where it is
hired for the purpose both of going and
coming, the hirer is in the same predicament
with a trustee who first swerves from the
terms of his trust, and afterwards accords to
them, in which case he is not responsible for
the deposit in his hands. — Others, again, say
that the rule is absolute ; and consequently
that responsibility attaches in either case :
for there is an essential difference between a
hirer or borrower, and a trustee ; because
the trustee is directed to keep the deposit,
independently, and consequently the order
of consei vat ion still remains in force after
the trustee ceases from his deviation and
reconforms to the terms of trust, whence he
reverts to his situation of representative of
the owner : whereas, in a case of hire or loan,
the hirer or borrower are directed to keep the
article dependently of the use, and not in-
dependently; and consequently, upon the use
ceasing, they no longer continue representa-
tives of the owner ; whence they are not dis-
charged from responsibility by their return
to Medina. — This is approved.
The change of a saddle for another of the
same sort does not induce responsibility. — IF
a person hire an ass with its saddle, and
fasten upon it another saddle, of the same sort
as is commonly used upon such an ass, he is
not responsible if the ass perish ; because
where the saddle is proportionate to the
animal, the owner's assent extends to it,
as the restriction is advantageous only in
case of the other saddle being heavier than
the one specified in the contract, when, if
the ass were to perish, the hirer would be
responsible in proportion to the difference.
Unless the weight be different, when re-
sponsibility attaches in proportion to the
excess. — IF. on the contrary, the hires were
to fasten upon the ass a saddle of a sort not
commonly used upon such an ass, he is re-
sponsible for the whole value ; for as this is
not included in the lessor's assent, it follows
that the hirer, in so doing, acts contrary to
engagement.
Jf the nature of the saddle be different,
responsibility attaches in toto — IF a person
hire an ass with its saddle, and fasten upon
the ass a pack-saddle, of a sort not com-
monly put upon such an ass, he is in this
case responsible for the whole value of
the animal for the reason alleged in the
example of the saddle; nay, the obligation
rests upon him in this case, a fortiori, since
a pack-saddle or panniers are not of the
same nature as a riding-saddle, and are,
moreover, heavier. If, also, he fasten upon
the ass a pack-saddle of a sort commonly
used upon such an ass, he is responsible for
the whole value, according to Haneefa. —
The two disciples allege that, in this in-
stance, he is responsible only in proportion
as the load of the pack-saddle exceeds that
of the riding-saddle ; because, where the
pack-saddle is of a sort commorly put upon
such an ass, it follows that the riding-saddle
and the pack-saddle are equal, and conse-
quently that the owner of the ass assents, —
except the latter exceed the former in weight,
in which case the hirer is responsible in pro-
portion to the excess of weight, as to that
the owner is not assenting. — The excess,
therefore, in this instance, is analogous to
a case where the person who lets out an
animal to hire specifies the quantity of
wheat he is to carry, and the hirer loads it
with a larger quantity. — The argument of
Haneefa is that a pack-saddle is not in
the nature of a common saddle : — it is not
so in appearance, since it is more spread
upon the animal on one side than on the
other ;* nor is it so in reality* since a pack-
saddle is for carrying burdens, whereas a
common saddle is for riding. — The hires,
therefore, in fastening a pack- saddle upon
the ass, acts contrary to his engagement
with the owner, in the same manner as a
• This alludes to the particular fashion of
the Palan, or Persian pack-saddle, with
which the translator is unacquainted.
BOOK XXXI.— CHAP. IV.]
HIRE
497
person who hires an animal to carry wheat,
and loads it with iron.
A porter is not made responsible by any
immaterial deviation from the prescribed
road. — IP a person hire a porter to carry a
load of wheat to a certain place, by a par-
ticular road, and he take another frequented
road, and the wheat be los»t, he is not respon-
sible ; and if he carry the wheat safe to the
place, he is entitled to his hire.— This pro-
ceeds upon the supposition that the roads
are not widely different, for in this case the
restriction to either in particular is useless,
— ;Where, however, the roads are widely
different, that taken by the porter being
dangerous or round about, or of difficult
passage, the porter is responsible in case of
the wheat being lost, since the restriction is
of use in this instance, and therefore, valid. —
It is to be observed that Mohammed docs
not make this distinction, put alleges that
the porter is not responsible if he carry his
load by any other than the road specified,
provided it be one commonly used ; because,
where it is a beatan path, there is no appa-
rent difference between the two. — If, on the
contrary, he carry the load by an unfre-
quented road, and it be lost, he is responsible
for the value, as the restriction is valid, and
the porter acted contrary to his instructions.
—If, however, in this case, he carry the
wheat safe to the place, he is entitled to his
hire ; because upon so doing his deviatation
from his orders is rectified, and the end is
obtained.
Any injurious deviation from the pre-
scribed culture of hired land induces a pro-
portionable responsibility — IF a person hire
land for the cultivation of wheat, and sow
therein trefoils or clover, he is responsible
in proportion to the damage the land sus-
tains, because the cultivation of any species
of grass* is more injurious to the land than
the cultivation of wheat, as those require
more water, and their roots spread more in
the ground. — In this instance, therefore, the
lessee has acted contrary to his agreement
with the lessor, inasmuch as he had done a
thing more injurious to the land than what
the lessor had specified. But if the lessor
require this compensation, he is not entitled
to any rent, as the lessee in that case stands
as an usurper, because of his acting con-
trary to engagement, as before explained.
A tailor is responsible for deviating from
his orders. — IF a person deliver a piece of
cloth to a tailor, directing him to make it
into a Peerahin, or shirt, for a particular
hire and he make it into a Kabba, or short
vest, the person has it in his option either to
take a compensation from the tailor for his
cloth, or to receive the Kabba, paying him
an adequate hire, which, however, is not to
exceed what had been at first agreed upon.
•The term, in the original, is Katba,
which applies to all the more succulent
species of field herbage.
— This is according to the Zahir Rawayet. —
Some have said that the Peerahin is merely
a Kabba, or vest, of one fold. — Others,
again, say that tt e Peerahin is not par*
ticularly restricted to vest of one fold, as
both are used indiscriminately at ail seasons.
— It is reported from Haneefa, that the pro-
prietor of the cloth is to take a compensation
from the tailor, and that he has no option
of any thing else * because as the Kabba is a
species of apparel totally different from the
Peerahin, the tailor stands in the predica-
ment of an usurper. — The reasons of the
doctrine, as reported from the Zahir Ra-
wayet, is that the Kabba is in one shape a
Peerahin, as it is occasionally used instead
of the Peerahin, and in another view it is
not so. — Hence there is both a similitude
and a dissimilitude ; and accordingly the
proprietor of the cloth has it at his option to
take a compensation for the value (in which
case the cloth becomes the property of the
tailor), or, to take the Kabba, paying an
adequate hire : — an adequate hire only is
due, because the tailor has not completely
fulfilled his agreement ; and it must not
exceed what was at first agreed upon, as
obtains all cases of invalid hire.
IF a person deliver a price of cloth to a
tailor, directing him to make it into a Kabba,
and he make it into a Shilwar, or drawers,
some allege that the proprietor must accept
a compensation ; and that he has no other
option because of the different uses to which
those two sorts of apparel are applied. — It
is certain, however, that the proprietor has
it at his option, in this instance, either to
take a compensation for the value of his
cloth, or to take the Shilwar, paying an
adequate hire ; because the use, namely,
clothing and covering nakedness, is the same
in both ; and the case is therefore analogous
to where a person orders a brazier to ''make
him a dish of this brass, and the brazier
makes him a brazen plate, in which instance
the proprietor of the brass has an option,
and so also in the case in question.
CHAPTER IV.
OF INVALrD HIRE,
In invalid condition invalidates hire —
HIRE is rendered invalid by involving an
invalid condition, in the same manner as
sale, for hire stands in the place of sale,
whence it is that a contract of hire may be
dissolved in the same manner as a contract
of sale.
But a proportionate hire i s in much case
rfu«, to the extent ef the hlie specified. — IN
a case of hire rendered invalid by involving
an invalid condition, a proportionate hire j9
due where that does not exceed the hire,
specified in the contract,— in othre words, of
>the specified hire and the proportionate hire,
the smallest is due. — Ziffer maintains that
498
a proportionate hire is due, to whatever
amount it may extend ; for he conceives an
analogy between the case in question and a
case of invalid sale, in which the value of
the article is due, to whatever amount. — The
argument of our doctors is that usufruct can-
not be appreciated but by a contract entered
into to answer the necessity of mankind,
whence, in valid hire, the degree is measured
by the necessity. — As, however, invalid hire
is a dependant of a contract of valid hire, it
has a relation to a valid contract, and con-
sequently regard is paid in it to what may
be the customary recompense in valid hire,
which is a proportionate hire. —Now the par-
ties, in a case of invalid hire, having agreed
upon a specific amount, it follows that both,
in making such specification agreed to remit
whatever may be beyond the specified hire,
where that is exceeded by the proprotionate
hire ; in this case, therefore, the specified
hire ; is due : — but if, on the other hand, the
proportionate hire fall short of the specified
hire, the excess of the specified hire is not
due, as the specification itstlf was invalid. —
It is otherwise in an invalid sale , fur as an
article of sale is appreciable to its extent,
there is no necessity for a regard to the con-
tract in order to manifest its value. Now
this value is the original thing : if, there-
fore, the specification of a price be valid (as
in a case of valid sale), the effect passes
from the original thing to the said price ;
but if, on the contrary, the specification of a
price be invalid (as in a case of invalid sale),
the effect does not pass from the original
thing to the price.
A contract indefinitely expressed closes at
the expiration of the first term. — If a person
hire a house, on a condition thus expressed,
that "he shall pay one d.rm every month,"
such contract is valid for one month, but
invalid for every subsequent month, unless
the whole of the months for which it is to be
hired be specified, in which case it continue
valid.— The arguments on which this is
founded are drawn from the construction of
the words in the Arabic idiom — It is to be
observed that as the contract in question is
valid for one month only, it belongs to both
the lesser and lessee, respectively, to dis-
solve the contract at the end of the month,
as the valid contract is then complete and
finished. — If, therefore, in this instance, the
lessee, after the expiration of the said month,
continue in the house for a single instant of
the second, the contract remains in force for
the second month, nor is the lessor at liberty
to put out the lessee until the end of this
month (and the same rule holds with respect
to every month in the beginning of which
the lessee continues to occupy the house) ;
because the contract appears to be renewed,
with the consent of both parties, in virt ue
of the lessee still continuing to occupy the
house in the succeeding month. — This, how-
ever, proceeds merely upon analogy ; and
^as been adopted by some of our modern
Doctors.— According to the Zahir Rawayct,
HIRE [VOL. Ill-
an option of dissolution remains in the next
month, to either party, to the end of the
first day of the month ; for in having regard
to the very first instant only of that month,
a restriction is induced so narrow as not to
admit the exercise of an option.
Rules with respect to annual leases. — IF a
person hire a house for a year, at the rate of
twelve dirms, it is lawful, although no men-
tion is made of the rent of each month
respectively ; because, as the whole term of
the lease is known without division, it is
therefore the same as hiring for a single
month, which is lawful, although no men-
tion be made of the rent of each day respec-
tively — It is to be observed that if the day
of the year's commencement be specified (as
if the lessee were to say, "I take this house,
for a year, from the first of the month
Rajab"). the lease commences from that
date. — If, on the contrary, no date of com-
mencement be specified, the lease commences
from the date of the deed itself ; because all
dates are equal with respect to hire, and
therefore a lease in this particular resembles
a vow ; in other words, if a person make a
vow that "he will not speak (for instance)
to a particular person for one month," the
observance of his vow commences upon the in-
stand of expressing it, all dates being equal
with respect to vows ; and so also in the case
in question. — It is also to be observed, that
if in this instance, the contract of hire be
concluded on the first day of the month,
all the succeeding months of the year are
counted from the appearance of the new moon
as this is the original standard of calcula-
tion.—If, on the contrary, the contract
be concluded after the lapse of some
days from the commercement of a month,
the lease is in that case for three hun-
dred and sixty days, according to Ha-
neefa ; and there is one report from Aboo
Yoosaf to the same effect. — According to
Mohammed, and another report of Aboo
Yoosaf, the first month is to be Counted by
days, to be completed from the next suc-
ceeding ii.onth ; and the other months must
be counted from the appearance of each new
moon : because a calculation by the number
of days is admitted purely from necessity
which exists in the first month only — The
argument of Haneefa is that upon the first
month being completed by the deduction of
a certain number of days from the second,
that also must, from necessity, be counted
by days ; and so of ihe rest to the end of
the year ;— in the same manner as obtains
with respect to the Edit ;— -that is to say, if
a divorce take place in the middle of a
month, it must be counted by days, and so
also in the present instance.
Wages are due to keepers of baths and
cuppers. — KEEPERS of baths and cuppers
are lawfully entitled to wages :— the former
because it is an invariable custom, among
all Mussuilmans, to pay them wages, and the
Prophet has said. Whatever seems good
unto the body of the MUSSULMANS is also
BOOK XXXI.— CHAP. IV.]
HIRE.
4S9
good before GOD ;" — and the latter, because
the Prophet paid a recompense to a person
who performed the operation of cupping
upon him : and also, because this is a cer-
tain recompense for a certain service, and is
therefore lawful.
But there is no hire for the covering of
mares, &c. — THERE are no wages for the
covering of animals, — that is, for bringing
a /viale to copulate with a female : because
the Prophet has said, " ASSIB-TE^S is among
the things prohibited ;" and by Assib-tees is
understood the recompense for the copulation
of a stallion, or so forth.
Nor for the performance of any religious
duty. — IT is not lawful to accept a recom-
pen*e for summoning the people to prayers,
or for the performance of a pilgrimage, or of
the duties of an Imam, or for teaching the
KORAN, or the LAW ; for it is a general rule,
with our doctors, that no recompense can be
received for the performance of any duty
purely of a religious rature — According to
Shafei, it is allowed to receive pay for the
performance of any religious duty which
is not required of the hireling in virtue of a
divine ordinance, as this is only accepting
recompense for a certain service ; and as the
acts above described are not ordained upon
the hireling, it is consequently lawful to
receive a recompense for them — The argu-
ments of our doctors upon this point are
twofold — FIRST the Prophet has said,
" Read the KORAN, but do not receive any
recompense for so doing :', and he also
directed Othman-bin-Abeeyas, that if he
were appointed a Mawzin [a cryer to prayer]
he should not take any wages. SECONDLY,
where an act of piety is performed, it springs
solely from the performer (whence regard is
had to his competency), and consequently
he is not entitled to any recompense from
another, as in the cases of fasting or prayer.
— A teacher of the KORAN, moreover, is
incapable of instructing another in it, but
by means of qualities existing in his scholar,
namely; capacity and docility, and therefore
undertakes a thing the performance of which
does not depend upon himself which is
consequently invalid. — Some of our modern
doctors, however, hold it lawful to receive
wages for teaching the KORAN in the present
age, because an indifference has taken place
with respect to religion, wher ce if people
were to withhold from paying a recompense
for instruction in the sacred writings, they
would in time be disregarded ;— and decree
pass accordingly.
Nor for tinging or lamentation. — IT is
not lawful to receive wages for singing or
lamentation * or for any other species of
public exhibition, as this is taking a recom-
pense for an act which is of a criminal
nature, and acts of that nature do not entitle
to a recompense in virtue of contract.
* Arab, Nooha, Crying over the dead (by
female mourners, who make it a profession).
Hire of Indefinite articles. — THE hire of
any thing indefinite is invalid, according to
Haneefa, unless from a partner. — The two
disciples maintain that such hire is valid ; —
and decrees pass accordingly,— (This rule
chiefly applies to such cases as where, for
instance, a person lets a share or portion of
his house to another, or lets his own share in
a partnership-house to any other than his
partner). — The argument of the two disciples
is that an indefinite part is capable of being
used (whence a proportionate hire is due),
and the delivery of it is practicable, either
by the lessor vacating his share to the lesses,
or by agreeing to hold ii with him alter-
nately.— The case is therefore the same as if
he were to let it to a partner, or between
two, which would be valid : consequently
this resembles a case of sale. — The argument
of Haneefa is that as the Is^sor, m this
instance, lets to hire an article which he is
incapable of delivering, the deed is conse-
quently invalid. — The ground of this is that
the delivery of an indefinite part of any
thing is inconceivable ; because delivery
cannot be completely executed on one part
without seisin on the other ; and seisin, as
being a perceptible act, cannot take place
but upon a specific subject. — With respect
to cxe:ution, it is regarded as a delivery,
because it amounts to investiture, an act
through which occupancy, or, in other
words, a power of seisin, is obtained. With
respect to alternate occupancy, on the other
hand, that cannot be established but in
virtue of a ri«ht of property in the use,
which is an effect of the contract of hire.
Now as the effect of any thing must be
subsequent to that thing, it follows that the
alternate occupancy is subsequent to the
execution of the contract of hire : but
ability to make delivery is one condition of
the contract ; and as the condition to a thing
must precede that thing, it follows that the
ability to make a delivery must precede the
contract of hire. A thing, however, which
is subsequent cannot be considered as ante-
cedent ; and hence the alternate occupancy,
which is subsequent, is incapable of being
accounted a delivery. — Where, on the con-
trary, the lease is to a partner, the whole
use arising from the article become, the
property of the lessee, and consequently no
part of what he holds can be termed inde-
finite : neither is the difference in the nature
of the usufruct (from part of it being in
virtue of right of property, and part of it
in virtue of a lease) injurious to the lessee
in this instance. — Besides, the hire of an
indefinite subject is unlawful from a partner
also (according to an opinion of Haneefa, as
reported by Hasan). — It is otherwise in a
case of supervenient indefiniteness, as that
does not occasion contention. (A superve-
nient indefiniteness is where a person lets an
article to two persons, and one of the lessees
dies, — or where two persons let an article to
one person, and one of the lessors dies, — in
which case the lease continues in force with
500
HIRE.
[VoL. HI.
respect to the other's share, indefinitely,
and does not become invalid, according to
the Zahir Rawayet, for this reason, that
ability to make delivery is not a condition
merely because of the contract, but because
of the obligation of delivery,— which obliga-
tion exists in the beginning, not afterwards
whence the ability of delivery is not a condi-
tion in the continuance ) It is also other
wise where an article is let to two persons,
because in this instance a delivery of the
whole is established, after which an inde-
finite division supervenes, because of the
right of property of each party being sepa-
rate.
Hire of a nurse. — IT is lawful to hire a
nurse to suckle a child, it a certain rate of
wages : because GOD has said in the KORAN,
" IF THEY SUCKLE YOUR CHILDREN, PAY
THEM THEIR HIRK ;" and also, because, in
the time of the Prophet, such was the prac-
tice, and likewise both before and since his
time, — Some have said that the contract of
hire, in the case in question, is a contract for
serving the infant, the particulars of j»uch
service (namely, attendance and milk) fol-
lowing as dependants, in the same manner
as the colour in a contract for dying cloth
(Others maintain that the contract is a con-
tract for the milk, the attendance following
as a dependant: and accordingly, if a goat
be hired to give milk to an infant, no recom-
pense is due. — The former opinion, however,
is more conformable to LAW ; because eon-
tracts of hire are not concluded for destruc-
tion or expenditure of an actually existent
article ; as where, for instance, a person
hires a cow for the purpose of using her
milk, which is invalid, as shall be shortly
shown to its proper place.) — Such, therefore,
being the case, the contract in question is
valid, provided the rate of hire be specified,
considering it as hiring a person for the sake
of her attendance.
IT is lawful to hire a nurse to suckle an
infant in return for meat and clothing, on
a favourable construction, according to Ha-
neefa.— The two disciples maintain that this
is not lawful, because as the recompense is
indeterminate and unknown, the case is
therefore the same as if a woman were
hired to bake bread, or so forth, in return
for her meat and clothing. — The argument
of Haneefa is that the indeterminateness in
question is not likely to engender strife,
since if. is customary to feed nurses in a
liberal manner, with a view to render them
kind and tender to the children under their
care. — This case; therefore, resembls the
selling of a measure of wheat out of a heap,
which is lawful, although the seller be at
liberty to give the wheat from whatever part
of the heap he pleases, as an ignorance in
that particular does not engender strife. — It
is otherwise in th? case of hiring a woman
to bake bread, or the like, because an igno-
rance in that instance is calculated to occa-
sion contention. — What is here advanced
proceeds upon a supposition that no expla-
nation has been given concerning the quan-
tity or quality of the food and clothing agreed
for to the purse,— It is written in the Jama
Sagheer that if a nurse be hired to suckle a
child for her victuals and clothing, — in this
way, that an explanation be given of the
kind and fashion of her apparel, and the
time of giving it, and a specific number of
dirms appointed for her board, — and victuals
be afterwatds given in lieu of the money, it
is lawful according to all. because in this
case there is no ignorance —Or, if the
victuals be specified, and the quantity and
quality explained, this also is lawful, for
the same reason ; and in this instance it
is not requisite that any time be fixed for
giving the victuals because articles of
weight, and measurement of capacity, when
described, become a debt, and a debt is some-
times prompt and sometimes deferred, like
price, which consists of money, — It is, how-
ever, a condition, with Haneefa, that an
explanation be given of the place where
the victuals are to be delivered in case of
any expense (of porterage, and so forth)
attending it. — The two disciples, on the
contrary, maintain that this is not a con-
dition, as has been fully stated under the
head of SALE —It is otherwise with respect
to apparel : for in that instance an expla-
nation is requisite, not only of the place,
but also of the time of delivery, as well as
of the quantity ; becouse clothing is not
construed to be a debt except in a case of
Sillim sale : and as, in that instance, a
prompt payment is requisite, so also where
the nurse is hired for a recompense in clothes,
it is requisite that a prompt delivery be
specified, as well as the quantity and the
quality.
THE hirer, in the case above stated, is not
at liberty to prevent the husband of the
nurse from having can al connexion with
her ; because as such connex'on is the hus-
band's riyht, it is not in the hirer's power to
annul it. — for this reason, that the husband,
in case of his not being informed of the con-
tract at the time of concluding it, is antitled
to dissolve it for the purpose ot preserving
his own right. — The hirer, however, may
prevent the husband from having such car-
nal intercourse in his house, since that place
is his exclusive right, — If, also, in conse-
quence of such connexion, the nurse prove
pregnant, the infant's guardians are at liberty
to dissolve the contract, provided there be
any apprehension of injury to the child's
health from the use of her milk, as is most
probable in such instances ; — and for the
same reason also, they are at liberty to dis-
solve the contract where the nurse tails sick.
— It is also incumbent upon the nurse to
prepare the child's victuals by mastication,
and to avoid every species of food which
might prove injurious to her milk, in pur-
suance or her duty. — in short, in all matters
of this nature, regard is had to custom, where
there is no divine ordinance* The perfor-
mance, therefore, of every usual service to
BOOK XXXI.— CHAP. IV.]
HIRE
501
a child (such as washing its linen, preparing
its victuals, and so forth) is incumbent upon
the nurse. The victuals, however, mast be
provided by the father. With respect to
what has bem observed by Mohammed, that,
'it is incumbent ui on the nurse to provide
oils and perfumes/'— this is according to the
custcm of Koofa.
IF the nurse above mentioned feed the
child . ith goat's milk, during the term of
hire, she is not entitled to any wages, as
not having performed what was her duty,
namely, iosterage, or, in other words the
feeding the child with milk from her own
breasts ; for feeding it with milk from a
goat is not fosterage, but merely feeding it
with milk. Wages, therefore, are not due
to her in this instance, as she has not per-
formed what she had contracted for.
A contract of hire, stipulating that the
recompense shall be paid from the zrt'cle
manufactured or wrought upon is invalid —
IF a pen on deliver thread to a weaver, to
make it into cloth, in consideration of an
half thereof to himself, he is to receive a
recompense proportionate to his work ; and
the Fame rule also holds if a person hire an
ass to carry wheat, paying, in consideration
a measure of such wheat. The contract,
therefore, is invalid in both these instances,
because the recompense is made to consist of
a thing obtained by the labour of the person
or animal hired, and hence the case is analo-
gous to that of an allowance made for grind-
ing,4* which has been prohibited by the
Prophet. (The case of allowance for grind-
ing is where a person hires an ox to grind
grain in consideration of a proportion from
the flour or meal :— and this case is the grand
criterion by which a judgment is formed of
the invalidity in various instances of hire,
more especially in our country.) The reason
of the prohibition, in this instance, is that
the hirer is incapable of delivering the recom-
pense (namely, a part of the woven cloth,
or a part of the carried grain) ; for as the
obtaining of it depends upon the act of the
person or animal hired, the hirer cannot be
accounted capable of making delivery merely
in virtue of the capacity of that person or
animal. The contract is therefore invalid
and an adequate hire is due. It is other-
wise where a person hires an a.is to carry
one half of a parcel of wheat, in considera-
tion of the other half ; for in this instance
no hire is due on account of the animal
hired, as the hirer has constituted the owner
of the ass proprietor of half of the gram
upon the instant, in the manner of a prompt
or advanced payment, and consequently the
wheat is in partnership between them, for
reasons which will be explained in a future
example. It is to be observed that where a
•Expressed by an Arabic phrase (Kafeez
Tehan), which will not bear a literal trans-
lation. It is more fully explained in Vol
IV, in treating of Compacts of Cultiva-
tion.
person hires an ass, to carry wheat, in con-
sideration of a measure of such wheat, or
an ox, to grind grain; the hire allowed must
nut exceed the value of what has been speci-
fied, because, as the hire is invalid, the least
only of the two (the hire named, or an ade-
quate hire/ is due, since the person who lets
the animal has agreed to remit any thing
beyond. It is otherwise where two men
enter into a partnership in collecting wood,
and one of them says to the other. "I will
take the whole wood; and pay you a recom-
pense for your share in the collecting of
it," for in this case an adequate recompense
is due, to whatever amount (according to
Mohammed), inasmuch as no sum has been
specified in this instance, whence no remis-
sion of any excess can be inferred.
Partners do not owe hire to each other
with respect to their stock.— -!F a person hire
another to carry wheat which is in partner-
ship between them, no recompense is due ;
for in all grain so carried the porter works
on his own account, whence a complete deli-
very is not made of the thing contracted
for.
Any uncertainty in the terms invalidates
the contract. — IF a person hire another to
back ten particular saas of wheat into bread,
"this day," for a dirm, it is invalid, accord-
ing to Haneefa. The two disciples in the
Mabsoot, article Hire, maintain that the con-
tract in question is valid : because in this
instance the performance of the task [of
baking the bread] is the thing really con-
tracted for, the mention of a time being
considered merely as for the purpose of ex-
pendition, in order that the contract may be
valid ; and consequently the objection of
uncertainty is removed The argument of
Haneefa is that the thing contracted for is
uncertain ; because the specification of a
time argues that the thing contracted for is
general usufruct, or. in other words, the
hireling's surrender of himself [to service] ;
and, on the other hand, the specification of
a particular act argues that such act is the
thing contracted for. Now general usufruct
and a particular act cannot be united ; for
where a particular act is the thing contracted
for, no hire is due for the labourer's sur-
render of himself. As, moreover, neither of
these has a preference over the other, and
the advantage is to the hirer, in the latter
insta. ce, and to the hireling in the former, it
follows that a contract of this nature would
lay a foundation for strife. It is reported,
from Haneefa, that where the hirer, instead
of "this day" says "within this day," the
hire is valid, as in such case the thing con-
tracted for is the particular act or task speci-
fied : contrary to where he says "this day."
The arguments upon this point are connected
with Arabic grammar, and have already been
stated in treating of Divorce.*
The arguments in this example turn
upon the distinction between the perfor-
mance of a thing by general service, and the
502
HIRE
[VOL III.
A least of lands is not invalidated by
stipulating a right to perform any act which
does and leave lasting effects — IF a person
hire land, stipulating that he shall be at
liberty to plough and cultivate it or to water
and cultivate it, such contract is valid :
because he is entitled to cultivate the land
in virtue of the contract ; and as this is
impracticable unless he plough and water it,
he is consequently entitled to p^rf^rm these
acts upon it likewise ; and every other act of
this nature in the same manner a requisite
of the contract ; nor does the mention of it
cause invalidity. If, on the contrary, he
stipulate that he shall be at liberty to plough
the land twice, or to dig trenches in it, or to
dung it, the contract is invalid ; because, in
this instance, an effect remains after the
expiration of the term of hire, which is not a
requisite of the contract. This condition,
moreover, is advantageous to one of the con-
tracting parties ; and every stipulation of
that nature invalidates a contract. Besides,
in this instance, the lessor becomes, in fact,
a tenant of the lessee with respect to such
advantage as may remain to the land after
the expiration of the lease ; and consequently
the contract involves one bargain within
another, which is not lawful. Somz explain
ploughing twice to signify ploughing the land
a second time, after having reaped a crop
from it, and then returning it in that state to
the owner ; and concerning the invalidity in
this instance no doubt can be entertained.
Others, again explain it to mean ploughing
the land twice, and then sowing the gram in
it. What is here advanced (with respect to
the invalidity occasioned by stipulating a
right of ploughing twice) applies solely to
cases where the land is of a nature to be pro-
ductive from once ploughing, and the term
of hire only one year;— for if the term of
hire be three years (for instance), the advan-
tage derived from ploughing twice swears out
and no longer remains. By the term trenches,
as here used, small temporary trenches are
not to be understood, but watercourses, such
as are calculated to last, and yield an advan-
tage the year ensuing.
A contract stipulating the recompense to
consist of a similar usufruct is nugatory. — IF
a person hire land to cultivate, in re urn for
the right [on the part of the lessor] of culti-
vating other land, it is nugatory ; in other
performance of the same thing in a parti-
cular instance ; that is, between hiring a
person for any business by the day, or so
forth, and engaging him for the performance
of the same business by the particular task.
If the contract for a particular task be so
expressed as to leave ic uncertain whether
the recompense specified be for the day's ser-
vice, or for the particular work required, it
is in that case invalid according to Haneefa),
and consequently no regard is had to the
sum mentioned as the recompense, but the
workman receives a proportionate hire for
his day's work.
words, it is utterly invalid. Shafei maintains
that it is valid. Analogous to this is the
hire of a dwelling-house, in return for
residence in another house ; the hire of
apparel in return for the use of other apparel ;
— or the hire of a quadruped for riding, in
return for a right of riding upon another
quadruped. The argument of Shafei, is
that the advantage is the same as actual
substance ; and it is on this idea that hire is
v.i lid in return for a debt of wages ;* for if
those were not the same as actual substance,
it would follow that the transaction is the
exchange of one debt for another debt, which
is null. The arguments of our doctors upon
this point are twofold, — FIRST, contracts
upon credit are rendered invalid by an unity
of species alone ; and as an unity of weight
or measure is not essential (according to our
doctors, as has been already explained in
treating of sale), the contract in question,
therefore, resembles the sale, upon credit, of
cloth of a particular description in return for
cloth of the same description. — SECONDLY
the validity of hire is admitted (in opposition
to what analogy would suggest) from con-
venience and necessity ; but no convenience
or necessity whatever exists where the
advantage is exactly the same on both sides,
contrary to where the advantage derived on
each part is different.
OBJECTION. — Where hire of one kind is in
return for hire of another kind, although it
be not rendered invalid by a non-existence
of necessity or convenience, still it would
follow that it is invalid, as being the sale of
a debt for a debt.
REPLY — In this instance the subject fron
which the advantage accrues is made a sub-
stitute for the advantage, from necessity : —
the recompense, therefore, is as a price ; and
accordingly, the transaction is a sale of sub-
stance for something else than substance ;
which is lawful.
Case of two partners. — IF a quantity of
wheat be between two men in partnership,
and one of them hire the other, or his ass, to
carry his share to a certain place, and he, or
his ass. cfcrry the whole of the wheat thither,
he is not entitled either to the recompense
specified, or to a proportionate recompen^e-
Shafei maintains that he is entitled to the
specified recompense ; because according to
his tenets, advantage is the same as actual
substance ; and as the sale of an undefined
substance is lawful, it follows that it is also
lawful to receive a recompense in return for
an underfined advantage. The case in ques-
tion, therefore, is similar to where a pesson
hires a building; held in partnership between
himself and another, for the purpose of
keeping grain, — or, a slave held in partner-
ship between him and another, for the pur-
*That is, wages owing from the person
hired to the hirer (as where the hirer had
previously performed service to the person
whom he now hires, and for which this
person still owes him wages.
BOOK XXX — CAHP. V,]
HIRE
503
pose of making up apparel. The arguments
of our doctors upon this point are twofold —
FIRST, the person in question here hires
another for the performance of a matter the
existence of which cannot be conccvcd;
because the carriage or porterage of any thing
is a sensible or perceptible act, which is
impossible with respect to a thing undefind :
— and as the performance of the thing con-
tracted for is impossib'e. it f Hows that no
recompense is due — SECONDLY, the person
hired is a partner of the hirer with respect to
every particle he carries, whence he carries
on his own account also, and consequently
does not perform what he had contracted for
It is otherwise where the thing contracted
for is a partnership house, for keeping grain,
for in this instance the thing contracted for
is the use of the house and a delivery of
that may be effected, without the person
depositing his grain therein, by the other
evacuating it to him.
A lease of land is invalid unless it specify
the purpose to which the land is to be applied
— IF a person hire land, without mentioning
that it is for the purpose of cultivation, or,
without mentioning what species of culti-
vation he means to employ it in, the contract
is invalid : because land is hired for tillage,
and also for other purposes ; and, in the same
manner, it is cultivated for various uses,
some more and some less injurious to the
soil. The thing contracted for is therefore
uncertain : and accordingly, the contract is
not lawful. Notwithstanding this, however,
if the person who hires the land should
cultivate it, and the term of the lease expire,
he is entitled to the specified rent, on a fa-
vourable construction. According to analogy
he is not so entitled (and such is the opinion
of Ziffer), because the contract, as being once
invalid, cannot afterwards become valid. —
The reason for a more favourable construc-
tion, in this particular, is that, before the
complete fulfilment of the contract, the
uncertainty has been done away ; and it
therefore becomes valid, in the same manner
as where the uncertainty is done away before
the contract has been yet concluded ;— the
case being analogous to where a seller and
purchaser do away an undefined time of pro-
mise for payment or delivery, in sale, before
the usual term of credit expires, or do away
a right of option extended beyond the term
of three days, before the expiration of those
three days, — If, in this case, the lessor and
lessee dispute before cultivation, the lessee
being desirous of cultivating the land, and
the lessor forbidding him, the contract be-
comes dissolved, in order that strife may be
prevented,
Responsibility does not attach, from the
customary use of an article, under an in-
definite contract. — IF a person hire an ass to
Bagdad (for instance) for one dirm, without
specifying what it is to carry, and load upon
it such^a burden as men usually put upon
that animal, and it die before it has proceeded
more than half way, he is not responsible ;
because the article hired is as a trust in the
hands of the hirer; although the contract be
invalid. If, on the other hand, the ass arrive
at Bagdad, the owner is entitled to the hire
s ipulated, upon a favourable construction;
because in this instance the uncertainty has
been done away, in the same manner as in
the preceding example. — If, also, a dispute
arise between the hirer and the owner of
the ass, before it be loaded, the contract is
dissolved, in order that strife may be
prevented.
CHAPTER V.
OP THE RESPONSIBILITY OF A HIRELING.
Difference between common and particular
hireling. — HIRELINGS are of two descrip-
tion common and particular. — A common*
hireling is one with whom a contract of hire
is concluded for work of such a nature as
may be perceived by examining the subject :
— and in this instance there js no occasion
for any mention of a term; nor "is he entitled
to his hire or recompense until the work he
has engaged for (such as dying or fulling)
be executed, because the work is the only
thing contracted for, where he engages to
perform it in person, or the effect of such
work, where he has not particularly engaged
to peform it in person. — It is therefore
lawful for him to work for the public at
large, since no part.cuar person has any
exclusive claim to his service ; and accord-
ingly, he is termed Ajeer Mooshtarik, that
is, a general or common hireling. — (The rules
with respect to particular hirelings shall be
discussed in their proper place.)
The article committed to a common hireling
is deposit.— An article delivered to common
hireling is a deposit in his hands. If, there-
fore, it perish whilst in his possession heis
not in any degree responsible for it, accord-
ing to Haneefa, and such also is the opinion
of Ziffer, — The two disciples maintain that
he is responsible, except where the article is
lost or destroyed by any irremediable and
irresistible accident, such as a fire burn-
ing down his house, or robbers, in such force
as not to be repelled : because it is recorded
of Alee and Omar that they understood a
common hireling to be responsible : and also,
because the care of the article is incumbent
on him; as without such care he cannot
perform his work upon it. When, therefore,
the article is lost from any cause which
might have been avoided, such as usurpation
or theft, this proves him to have been negli-
gent, and he is consequently responsible in
the same manner as a trustee who lets to hire
the deposit in his hands, — It is otherwise
* Arab. Mooshtarik, literally held in com-
mon,— meaning one whose services are open
to all (such as a tradesman), in opposition to
a particular qefVWt,
504
HIRE
[VoL. HI.
wliere the article is lost from some unavoid-
able cause, such as fire, sudden death, and
so forth, since in this case he cannot be
accused of negligence. — The argument of
Haneefa is that the article is merely a deposit
intht workman's hands, the possession of
which does not involve responsibility, inas-
much as he took possession with consent of
the proprietor ; and accordingly, if it were
lost from any unavoidable cause, he is not
responsible, — whereas, if his possession of it
involved responsibility, he would owe a
compensation for it at all events, in the same
manner as in a case of usurped property. —
The care; moreover, of the article is incum-
bent upon the proprietor dependatly and
not essentially, and accordingly no hire is
due for such case. This case is different
from that of an hired trustee ; for the care
of the deposit is essentially incumbent upon
a trustee who acts for hire, because of the
wages he receives.
But he is responsible if it be destroyed in
the course of his work. — A COMMON hireling
is resposible in case of the loss or destruc-
tion of any article in the course of his work:
as where a dyer -or fuller tears the cloth
entrused to him, or a porter stumbles, or
the tying of his load breaks, or the girth of
a camel breaks, and thus the goods with
which he is loaded fall to the ground, or a
boat sinks from the mismanagement of the
boatman, — Ziffer maintains that the hireling
is not responsible in those cases, because the
hirer had ordered him to work in an absolute
manner, and hence his order extends as well
to dangerous as to safe operations, — in other
words, to operations which subject his pro-
perty to damage, and also to operations under
which it continues uninjured. — The hireling
in question, therefore, is in the same pre-
dicament with a particular hireling, or any
assistant of a workman.* The argument of
our doctors is that the orders of the hirer do
not extend to any operations but what are
mentioned in the contract ; and those are to
be supposed of a safe nature, since in virtue
of them is obtained the thing contracted for,
namely, the effect of them, — whence it is
that it this effect be obtained through the
work of any other than the hireling, still the
recompense is due. The orders of the hirer,
therefore, do not comprehend any operations
that may be injurious, since through such
the thing contracted for, namely, the effect,
cannot be produced. It is otherwise with
respect to the assistant of a workman ; be-
cause, as he works gratuitously, his work
cannot be restricted to the condition of safety,
for if it were so restricted, he would decline
working gratuitously. It is also otherwise
with respect to a particular hireling, as shall
be hereafter explained. — (It is to be observed
that the breaking of a earners girth, or so
* Meaning a person who assists the work-
man gratuitously (as will be perceived by the
context a little further on),
forth, is supposed to originate with the
hireling, inasmuch as the accident may be
attributed to his wan* of careO—A common
hireling, therefore, is responsible for any
thing which may be destroyed in the course
of his work ; excepting, however, where a
MAN is destroyed, either by the sinking of a
boat, or by falling from a camel or other
animal (athough those accidents should
have been occasioned by the driving of the
camel or the navigating of the boat); for in
this instance the hireling is not responsible,
as responsibility for a MAN cannot be incurred
in virtue of a contract, or in virtue of any
thing but a Janayat, or offence against
the person, whence it would be due, in this
instance, not from the hirtl ng, but from
his Akila, who, however, cannot be made
responsible by a contract.
IF a person hire a porter to bring an earthen
jar from the banks of the Euphrates (for in-
stance), and he fall down upon the way and
break the jar, the hirer has it at his option
either to take the value which the jar bore
at the place where it was taken up (in which
case the porter is not entitled to any recom-
pense), or to take a compensation for the
value it bore at thi place where it was broken,
paying the porter a proportionate hire. —
Responsibility is incurred in this instance,
because (as was before said) the falling of the
jar was either owing to the porter stumbling,
or hir rope br*akin?, which is attributed to
hi n : — and an option is allowed to the hirer;
because, where the jar is broken upon the
road, the cricumstance admits of two con-
struction : for the hireling is in one shape
guilty of a transgression from the beginning,
inasmuch as the carnage of the jar from the
placs where it was taken up to the place
directed is one act ; and in another shape he
is not guilty from the beginning, since the
carriage was undertaken with the consent ol
the owner, and consequenty no transgression
took place unt 1 the breaking of the jar ;—
the owner, therefore, has it at his option tc
proceed upon either ground ; — if he proceed
upon the second ground, the hireling is tc
receive a recompense in proportion to the
work he has rendered to the hirer: but ii
upon the first ground, he is not to receive
any thing, since in this view he has not
rendered the hirer any service whatever.
A surgon, or farrier , acting agreeably t<
customary practice, is not responsible in caj<
of accidents.— IF a surgeon perform the opera
tion of phlebotomy in any customary part
he is not responsible in case of the persoi
dying in consequence of such operation, —
This is according to the Mabsoot. — It i
written, in the Jama Sagheer, that if i
farrier bleed an animal for a danik, and th<
animal die in consequence, or if a cuppe
perform the operation of cupping upon ;
slave by direction of his master, and th
slave die in consequence, no responsililit
is incurred. — It is to be observed that th
doctrine of the Mabsoot, in this particulai
proceeds upon the idea of a restriction t
BOOK XXXI— CHAP. VI.]
HIRE
505
the performance of the operation in some
customary part ; but it is unrestricted with
respect to the assent of the party or other-
wise; whereas the doctrine in the Jama
iSagheer proceeds upon the idea of a restric-
tion with respect to the assent [of the owner
of the slave or animal], but is unrestricted
with respect to the part on which the opera-
tion is performed. Each of these reports,
therefore, affords an argument with respect
to the other ; and consequently the cases in
both are restricted to this, that the operation
be performed in the usual part, and with
consent of the party, — The ground on which
the L w proceeds in this particular is, that
it is impossible for the operators to guard
against consequences, as those must depend
uoon the strength or weakness of the con-
stitution in bearing any disorder or pain ;
and as this is unknown, it is therefore im-
possible to r.. strict the work to the condition
of safety. — It is ot erwise with respect to
tearing cloth, as before treated of, b ciuse
the strength or weakness of cloth may be
known by skill and attention, whence it is
possible in that instance to restrict the work
to safety. , Thus much with respect to
common or general hirelings.
A particular hireling.— A PARTICULAR
hireling signifies one who is entitled to his
hire in virtue of a surrender of himself
during the term of hire, although he do no
work ; as, for instance, a person who is hired
as a servant for a month, or to take care of
flocks for a month, a certain rate, under
a condition that he shall not serve or tend
the llocks of an> other person during that
term — An hireling of this description is
denominated an Aj^er Wahid, or singular
hireling, because the advantage of his service
belongs exclusively to a single person during
the term of his engagement, and the wages
he receives are opposed to such advantage :
-— and as the hireling, in this instance, is
entitled to his hire in virtue of his surrender
of himself, for the term of hire, he is entitled
to his wages although he do no work, or
although his work be afterwards undone; as
where, for instance, a person is hired to
make up a dress, and he sew it accordingly,
and the sewing be afterwards ripped out, in
which case he is nevertheless entitled to his
hire.
7s not responsible for any thing he loses or
destroys. — IF an article be lost whilst in the
hands of a particular hireling, without his
act; by a thief stealing it (for instance), or,
an usurper carrying it away,— or, if it be
lost by his act, he is not responsible for it. —
He is not responsible in the former instance,
because the article is a deposit in his han Js,
since he took possession of it with the owner's
consent. — (.This, according to Haneefa, is
evident : — and it is also evident according to
the two disciples, because they hold that the
obligation of responsibility upon a common
hireling proceeds upon a favourable con-
struction of the LAW. in order that men's
property may be in security ; but as a par-
ticular hireling does not engage to work ror
every person, it is still more likely that
property is safe with such an hireling : and
therefore, in this case, the law proceeds upon
analogy,) — He is also not responsible in the
second instance, because, as the advantage
of this hireling's service is the property of
the hirer, it follows that, where he directs
him to act with his property, such direction
is valid : consequently the hireling is his
deputy ; his acts, therefore, are the same as
the acts of his principal, the hirer, and of
course he is not responsible.
CHAPTER VI.
OF HIRE ON ONE OF TWO CONDITIONS.
The hire is valid, of a tradesman, under an
alternative with rtspzct to work.— IP the
owner of cloth say to the tailor whom he has
engaged, "If you make up this cloth in the
Persian fashion, you shall have one dirm.
and if in the Turkish fashion, you shall have
two/' — it is valid, and the tailor is entitled
to a recompense according to whichever of
the two fashions he makes up the cloth in.
In the same manner, also, if he say to a
dyer, "If you dye this cloth purple, you
shall have one dirm, and is yellow, you shall
have two," the dyer is entitled to a recom-
pense, according as he dyes the cloth purple
or yellow.
Or of an article under an alternative of
another article.— THE same rule also holds if
the proprietor of the article hired leave two
things at the option of him who hires it ;— -as
if he were to say to him " I let to you this
house, for one month, for five dirms. or this
other house, for one moth, for two dirms. "
Or with respect to the use. — And so like-
wise if he leave at his option two different
distances; as if he were to say "I hire to you
this camel, to Koofa, for five dirms; or this,
to the half-way sUtion, for so much :"— and
the same, also, if the proprietor give an
option of three things: but if he give an
option of four things, it is invalid. —In all
these cases regard is had to sale ; in other
words, they are judged of by sale; for if in
person agree to sell cloth, under this condi-
tion, that the purchaser shall take either of
two particular pieces, as he pleases, it is
valid (and so likewise, if he allow the pur-
chaser an option of one out of three pieces):
but it is not valid if he allow him an option
of one out of four pieces.— The reason of this
is that as cloth is of three descriptions, a
good sort, a bad sort, and a medium sort, an
option of three is of use, and necessity is
thereby answered; but as, in a case of four
pieces necessity is answered by a choice
from a smaller number, S3 an option out of
four is useless.— In the same manner, also, m
hire, necessity is answered by an option from
three things, as those comprehend a good, a
bad, and a middling sort : and there is no
306
HIRE.
[VOL. III.
occasion for four, as necessity is answered by
fewer, — There is, however, this difference
b etween sale and hire, that sale is not valid
unless an option of determination be stipu-
lated ; for if a person sell one of two slaves,
it is valid only in virtue of stipulating an
option of determination. — A contract of hire,
on the contrary, is valid, for one of two
advantages, without stipulating an option of
determination, because the recompense is not
due in virtue of the contract, but in virtue of
the usufruct or work; and consequently,
when the party commences the enjoyment of
one of the advantages, the thing contracted
for becomes known : bat as, in a case of sale;
the price of the article is due in virtue of the
contract, uncertainty consequently exists in
that instance to such a degree as leaves room
for strife, unless the purchaser possess an
option of determination.
Cant of a tradesman hired under an alter
native with respect to time. —If a person say
to a tailor whom he hires, " If you make up
this garment this day you shall have one
dirm ; and if to-morrow, you shall have half
a dirm." in this case, provided the tailor
finish the garment within the day, he gets a
dirm, or if he finish it the next day, he re-
ceives a proportionate hire (according to
Haneefa) where that does not exceed half a
dirm : in other words, he gets the least of
the two. between a half dirm and his propor-
tionate hire. — It is written, in the Jama
Saghcer, that he is entitled to his propor-
tionate hire, not being less than half a dirm,
not more than one dnm. — The two disciples
allege that both conditions are valid, and
consequently, that if he perform his work
on the morrow he gets an half dirm. — Ziffer
maintains that both t'le conditions in ques-
tion are invalid ; because sewing, or tailor's
work, is one thing to which the hirer, in this
instance, opposes two returns (namely, one
dirm, and half a dirm), in the manner of a
consideration : the recompense, therefore, is
uncertain. — 1 he reason of this is that the
mention of this day is merely for the purpose
of hastening; and the mention of to-morrow
fnr the purpose of giving ease ; and there is
no suspension ; for if the hirer were to ex-
press the contract " make up this garment
by to-morrow, for half a dirm/' the contract
is established, insomuch that if he make up
the garment within the persent day, he is
entitled to half a dirm. Hence it appears
that the mention of to-morrow is merely for
the sake of ease, and is not a suspension ; and
consequently two specifications are united in
one day. — The arguments of the two disciples
upon this point are twofold, FIRST, the
mention of this day is for the purpose of
determining a time, and the mention of to-
morrow is by way of a condition : conse-
quently two specifications are not united in
one day. SECONDLY, quickness and delay
are the designs : and the case therefore
resembles that of two species of work, such
as Persian and Turkish. The argument of
Haneefa is that the mention of to-morrow is
certainly by way of a condition, — The men-
tioning this day, moreover, cannot be con-
strued to imply fixing a time; for otherwise
the contract of hire would be invalid, because
of its uniting time and work. Such, there-
fore, being the case, it follows that two speci-
fications are united in the mention of to-mor-
row, not in the mention of this day ; conse-
quently the contract with respect to this day
is valid, whence the hire mentioned is due
[in case of the work being finished within
the day] ; but it is invalid with respect to
to-morrow, whence [in case of the work being
finished on the morrow] a proportionate hire
is due, — not exceeding, however, half a
dirm, as that is what was specified for to-
morrow.— With respect to the quotation
from the Jama Sagheer upon this subject,
that "he is entitled to his proportionate
hire, not being lest than half a dirm, nor
more than one dirm,'1 the ground on which
it proceeds is, that the first specification does
not become extinct on the second day. be-
cause then both specifications unite : regard,
therefore, is had to it, with respect to pre-
venting any excess beyond it ; and to the
second specification, with respect to prevent-
ing any deficiency: — If, in the case in ques-
tion, the tailor finish the garment on the
third day, he gets whatever is least of the
two, his proportionate hire, to half a dirm.
This is approved ; because, as the hirer was
unwilling to have the work delayed for one
day, it follows that he was still more unwil-
ling to have it delayed longer than one day.
Case of hire of a shop, under an alterna-
tive with respect to the business to be carried
on in it — IF the lessor of a shop say to a
person about to hire it "If you place a per-
fumer in this shop the rent is one dirm, or if
a blacksmith, it is two/' the contract is valid,
and the lessor is entitled to one or other of
the rents specified according to which of the
two trades may be exercised in the shop.
This is the doctiine of Haneefa. The two
disciples maintain that a contract thus ex-
pressed is invalid. — In the same manner*
also, if a person hire a house, under this
condition, that " if he reside in it himself,
the rent shall be one dirm, or if he place a
blacksmith in it the rent shall be two
dirms," it is valid, according to Haneefa,
wherease the two disciples deem it invalirl.
And of an animal, under a condition with
respict to the journey it is to perform. — IF a
person hire an animal of Heera for one dirm;
under a condition that if he proceed on to
K ad see a he shall pay two dirms, it is valid :
and in this instance, also, the above difference
of opinion may be inferred: that is to say,
this example is stated in the book [of Ka-
dporee] generally, without mentioning any
difference of opinion ; but it bears the con-
struction of a difference of opinion, and also
of an agreement of opinion.
Or the load it is to carrv.— IF a person
hire an animal to Heera, under this condi-
tion, that " if he load it with a Koor of
barley he shall pay one dirm, or if with a
BOOK XXXI.— CHAP. VJ1.J
HIRE.
507
Koor of wheat he shall pay two dirms," it
is valid according to Haneefa. The two
disciples maintain it to be invalid, — The
ground on which the two disciples proceed
is, that in all the instances here recited the
thing contracted for is uncertain ; and in the
same manner, the hire, as being one of two
things, is also uncertain : and uncertainty
occasion nvalidity. — It is otherwise in the
examp'e of making up apparel after the
Pers an or the Turkish fashion, because the
hire is due on account of the work, and in
his instirtce the uncertainty is removed as
oon as the work is begun; whereas in the
examples in question the hire is due on
account of the relinquishment and delivery
of the house or animal, whence the uncer-
tainty still continues, because after deli-
very, in case of no use being made of the
article, it is not known which of the two
hires specified is due (for it is a principle,
with the two disciples, that hire is due on
account of relinquishment and delivery.) —
The argument ot Haneefa is that the lessor,
in the case in question, gives the lessee an
option of either of two valid contracts of
different descriptions ; for the hirer himself
residing in the house is different from his
placing a blacksmith to reside in it ; and
such being the case, the contract is valid, in
the same manner as in the example of making
up apparel after the Persian or the Turkish
fashion. — With respect to what is advanced
by the two disciples, that "the hire is due
on account of relinquishment and delivery
whence the uncertainty still continues " it
may be replied that the design of the con-
tract of hire is advantage or usufruct; be-
cause, as such contracts are legalized to an-
swer thf necessity of mankind, it is evident
that they are never entered into but with a
view to such advantage ; and the uncertainly
is removed upon the advantage commencing,
— As, moreover, the relinquishment and
delivery, without any enjoyment of the use
(which alone constitute endowment), are
not principles, but rather mere accidents,
thsre is no necessity to guard against uncer-
tainty at the period of delivery. — Besides, if
it be required, in a contract of hire, that the
hire be due on the instant of delivery, it
follows that the smallest of the two hires
specified is due, as that is undoubted : — the
hire, therefore, is not uncertain.
CHAPTER VII.
OF THE HIRE OF SLAVES.*
An hited servant cannot be taken upon a
journey, unless it be so stipulated in the con-
* It is a common practice, in Arabia,
Persia, &c., for slaves to hire themselves in
the capacity of menial servants, being ac-
countable to their master for the wages they
receive.
tract.— IF a person hire a slave, as a ser-
vant, he is not at liberty to carry such slave
along with upon a journey, unless this
be a condition of the contract ; because,
as travelling is attended with additional
trouble, a contract in general terms is not
held to extend to it : whence it is that
travelling is a sufficient plea for breaking off
a contract of hire. It is therefore requisite
t at, in the the contract in question, travelling
be particularly stipulated, in the same man-
ner as the residence of a blacksmith or
fuller in a dwelling-house. — Besides, the
difference between stationary service and
travelling service is evident; and conse-
quently, upon stationary service being as-
certained or specified, the other description
(namely, travelling service) cannot be in-
cluded ; — in the same manner as riding upon
an animal ; as. for instance, where a person in
general terms hires an animal to -ide, and
the rider is afterwards ascertained, the hirer is
not at liberty to set any other person upon the
animal ; and so likewise in the present case,
Wages paid to an inhibited slave, hired
without the consent of his owner, cannot be
resumed. — IF a person hire an inhibited
[absolute] slave for the term of one month,
and pay him his wages after the perform-
ance of service, he is not at liberty to resume
such wages. The ground of this is that the
hire in question is valid, on a favourable
construction, where a slave is not otherwise
occupied. Analogy would suggest that it is
invalul, as the proprietor of the slave has
not given his consent, and the slave is a
Mahjoor, or inhibited : — in the same manner
as if the slave were to die before the com-
pletion of the service ; in which case the
hirer would be responsible for his value ; but
he would not be responsible for any wages
on account of the service performed, since
in employing the slave he becomes an
usurper,— 'whence he is, in case of the slave's
death, required to pay a compensation for
his value ; and as, upon so doing, he becomes
proprietor of the slave from the first instant
of employing him, he thus appears to have
derived an advantage from his own slave :
wherefore, in such case, no wages are due. —
The reason for a more favourable construc-
tion, in this instance, is that the transaction
in question may be considered in two shapes :
for first, it may be regarded as advantageous
on the idea of the slave being unoccupied by
any other business, and remaining in safety ;
and secondly, it may be regarded as injurious,
on the idea of the slave dying before he
finishes his service. — Now, on the idea of
the transaction being advantage, the
slave is licensed therein, in a manner analo-
gous to the acceptance of a gift. The con-
tract of hire therefore is valid ; and such
being the case, it follows that the hirer is not
at liberty to take back the wages.
The usurper of a slave is not responsible
for what the slave earns during the term of
usurpation. — IF a person usurp a slave, and
the slave afterwards let himself to hire, and
508
HIRE
[VOL. Ill,
the usurper receive his wages, and expend
the same, he is not responsible for them,
according to Haneefa.— The two disciples
allege that he is responsible for the wages,
because he has acted with the property of
the master without his consent (for the con-
tract of hire is valid, on the grounds stated
in the preceding example). The argument
of Haneefa is that responsibility does not
attach except in the case of destruction of
protected property* (for the fixing of a price
upon property is for the purpose of protect-
ing it). Now the wages in question arc not
in a state of protection or custody in regard
to the master, although they be so with
respect to another, because the protection or
custody of property is established only by
actual possession, such as may admit of the
care of it, like the possession of the proprie-
tor, or his deputy ; and the seisin of the
slave is not the seisin of his master, since
the slave himself is in the possession of an
usurper, and being thus incapacitated from
protecting his own person, is therefore in-
capable of protecting his wages from the
usurper, — If, however, the master find the
wages in the usurper's possession, he is en-
titled to take them from him as he in this
case discovers his own property. — In the case
in question, also, it is lawful for the slave to
take possession of his wages from the usurper,
according to the opinion of our three doctors,
since, if not otherwise employed, and remain-
ing safe, he is licensed with respect to the
transaction, because of its being advanta-
geous, as was before mentioned. — It is differ-
ent where a master lets his slave to hire ; for
in this case the slave is not at liberty to take
possession of his wages unless his master
constitute him his agent for that purpose,
because receiving thi wages is one of the
rights of the contract,
Case of a slave hired for different terms —
IF a person hire a slave for two months,
with this distinction, that he shall serve one
month for four dirms, and one month for
rive dirms, it is lawful ; and the hire is fur
four dirms in the first month ; because the
month first mentioned must be construed to
mean the month immediately succeeding the
execution of the contract, in order to its
validity ; for otherwise the contract would
be invalid, since in this case a month would
appear included in it which is not specified,
and this would be invalid. — Besides, the act
of hiring infers that the hirer has immediate
occasion for the service of the slave, whence
the month in question must necessarily be
construed to mean the month immediately
succeeding the execution of the contract, in
order that the hirer's necessity may be an-
swered : and such being the case, the second
month must in the same manner be neces-
sarily construed to mean the month immedi-
ately succeeding the first month.
* Arab, Mai Mohirrez. — The meaning of
this has been fully explained elsewhere. (See
Hirz, and Mohirrez.)
Case of hired slave absconding before the
expiration of the term. — IF a person hire a
slave for one month, at the rate of one dirm,
and take possession of the slave in the
beginning of the month, and at the end of
the month, the slave having absconded or
fallen sick, the hirer and the owner or master
dispute,— the hirer asserting that the slave
had absconded or fallen sick in the beginning
of the month, and the master, that he had
not fallen sick or absconded until within a
short time, — the assertion of the hirer must
be credited — If, on the other hand, the hirer
produce the slave, he being then present and
in good health, the assertion of the master
must be credited ; because, as the parties
differ upon a point which is of a problema-
tical nature, a preference must be given to
the side of the question which is best sup-
poited by apparent circumstances. The prin-
ciple upon which the LAW in this instance
proceeds is to be found in the case of the
running or stopping of a mill-stream; for if
the hirer of a mill dispute with the pro-
prietor concerning the running of the .stream
during the term of hire,* in this case the
assertion of that party is credited on whose
behalf apparent circumstances bear testi-
mony, f — If, on the contrary, they dispute
concerning the deficiency in the running of
the steeani, — as if the lessee were to say that
it had not run for ten days, and the lessor
that it had not run for five days, in this case
the assertion of the tenant must be credited,
or evidence on the part of the lessor.
CHAPTER VIII.
OF DISPUTES BETWEEN THE HIRER AND THB
HIRELING,
In cases of dispute with a tradesman con-
cerning the unter s he has icceived, the asser-
tion of the tmployer must be credited. — IF a
dispute arise between the tailor and the owner
of cloth,— the owner asseiting that "he had
directed the tailor to make the cloth into a
vest," and the tailor that "the owner had
directed him to make it into drawers," — or
if a similar dispute happen with a dyer, the
owner of the cloth affirming that he had
directed him [the dyer] "to colour the cl.th
yellow," and the dyer that he [the owner]
"had directed him to dye it red," — in either
case the declaration of the owner of the
cloth must be credited, since it is from him
that the orders proceed.— The ground of this
is, that as, if the owner of the cloth were to
* He asserting that the stream had not
run a* Ml, and consequently that the mill
stood still during the whole term
t That is to say, if, at the time of the
asseition, the stream be running, the pro-
prietor must be credited ; but if otherwise,
the tenant.
BOOK XXXI.-CHAP. IX.]
HIRE
509
deny the original order,* by disavowing the
contract of hire, his word would be credited
—so, in the same manner, his word must be
credited where he denies the description or
qualification of the order. — He must, how-
ever, be sworn, because he in this instance
denies a thing which, if he were to acknow-
ledge it, would be binding upon him. Upon
the owner of the cloth swearing, the tailor
becomes responsible ; that is, the owner of
the cloth has it at his option either to take
the value of the cloth. — or to take the
drawers, paying the tailor an adequate hire.
— In the same manner, also, in the case of
dyeing, upon the owner cf the cloth swearing,
he has it at his option either to take a recom-
pense for the value of the cloth uncoloured,
or to take the dyed cloth, paying the dyer
an adequate hire not hey on d the value, —
because the dyer, in acting contrary to his
instructions, stands in the barnc predicament
with an usurper.
And so alw, if the dispute be with regard
to wages. — JF a dispute arise between the
owner of cloth and the dyer, tailor, or other
workman, — the owner asserting that "he
[the workman! had agreed to execute the
work without hire," and the workman that
"he wrought for hire," the assertion of the
owner must be credited, inasmuch as he both
denies any price having been put upon the
workman's labour (which can only be effected
by a contract), and also ary responsibility,
or, in other words, any hire being due, which
the owner claims ; and the assertion of the
defendant [upon oath] mutt be credited.
Aboo Yoosaf maintains that if the workman
be one commonly employed by the owner of
the cloth, and wi'h whom it has been usual
for the owner to fix a hire for his work, he
is entitled to a hire proportionate to what he
performs ; but that, if he was not commonly
employed by the owner he gets nothing
whatever ; and the reason is, that it is only
former practice which can furnish a ground
of requisition of wages, and establish the
rate at which they are to be fixed in the pre-
sent instance. Mohammed says that if it
have been a general and known practice of
the workman to work for hire, his word must
be credited, because whenever he opens a
workshop for the purpose of carrying on his
business, this stands in place of an express
declaration that he works for hire, as appa-
rent circumstances signify thus much. It is
to be observed that the opinion of Haneefa, as
here stated, proceeds upon analogy, the owner
of the cloth standing as ihe denier, or defen-
dant. The opinion of the two disciples, on
tho other hand, proceeds upon a favourable
construction — In reply to what they ad-
vance in this particular it may be observed
that apparent circumstances may suffice to
repel, but are not sufficient to establish to
*That is, were to deny his ever having
given any order (with respect to dyeing or
making up the cloth).
claim ; in other words, if a person advance a
claim, such claim may be set aside by appa-
rent circumstances, but apparent circum-
stances are incapable of constituting proof,
or of establishing anything in his behalf;
and, in the present instance, it is required
that a claim be established. Sheikh- al -Islam
remarks that decrees pass according to the
opinion of Mohammed, — as is also mentioned
in the Kafees.
CHAPTER IX.
OF THE DISSOLUTION* OF CONTRACTS OF
HIRE.
A contract for the hire of a house is dis-
solved by a deject in it. — IF a person hire a
house, and then discover a defect in it, such
as renders it uninhabitable, he is at liberty to
dissolve the contract : because the contract
was executed with a view to advantage ; and
as that continually, from time to time, is the
object of the hire, it follows that the defect
discovered in the house had existence previ-
ous to his obtaining possession of the thing
actually contracted for, although it had oc-
curred subsequent to taking possession of the
house, in the same manner as where a defect
has taken place in merchandise before the
purchaser obtains possession of it. If, how-
ever, the hirer derive the advantage [that
is make use of the house], he assents to the
detect ; and in such case the whole considera-
tion (namely, the rent) is incumbent upon
him, in the same manner as in sale. If, also,
the 1 s«?or perform what is requisite to remedy
the defect, the hirer is in that case without
an option, as the reason for such option is
then done away.
Or by its falling to decay ; and the hire of
land, by its wells being dried up, — or of a
mi//, by the mill-stream stopping. — IF a house
fall to decay, or the wells for watering land
dry up, or a rnill-stream cease to run, the con-
tract of hire is dissolved, because in such case
the thing contracted for (namely, exclusive
advantage) is defeated before possession ; and
the case is therefore the same as where mer-
chandise perishes before possession, or where
a hired slave dies. — Some of our modern
doctors hold that the contract of hire is not
dissolved in this instance, because the ad-
vantage has been defeated in a manner which
admits a recovery of it. The case is there-
fore the same as where a slave dies after
purchase, but before delivery ; and as. in
that case, the contract [of sale] is not dis-
solved, so likewise, in the present instance,
the contract [of hire] is not dissolved. — It is
recorded, from Mohammed, that if, in the,
case is question, the lessor remove the defect
by repairing the house, the hirer must abide
by the contract, and also the lessor. — From
this it is to be inferred that the contract is
not dissolved.— It is, however, dissolved.
*Arab. Fiskh ; literally, a breaking off.
510
HIRE
[VOL. III.
But if the mill-home be used, a propor-
tionate rent is due. — IF a mill-stream cease
from running, and the mill-house be appli-
cable to any other use than that of grinding
grain, the hirer must pay a rent proportion-
able to the use derived from such house, as
that is a part of what was contracted for.
A contract of hire is dissolved by the death
of one of the contracting parties, being a
principal. — IF one of the contracting parties
die, and the hirer had entered into the contract
of hire on his own account, it [the contract
of hire] is dissolved ; because if the contract
were still to remain in force, it would follow
that the usufruct, or rent, then becomes the
right of a person who was not party to the
contract, namely, the heir (since it would shift
from the deceased to his heir), which is unlaw-
ful. Besides, with icspect to the lessor, it is the
use of his property which forms the subject of
the contract ; and as in consequence of his
decease, this property changes to his heir, it
follows that the contract of hire becomes
null, because of the subject being lost ; for
a change in the ritzht of property is the same
as a change in the thing itself. — With re-
spect to the hirer, or renter on the contrary,
if the contract were to remain in force after
his decease, it can only do so upon the prin-
ciple that his heir is his substitute. But the
use of a house cannot be a heritage without
the house itself, because inheritance is a suc-
cession, which is impossible except with
respect to a thing which endures at both
times, so as to be at first the right of the
person through whom inheritance descends,
and at last to be succeeded to by hi<? heir.
— As, therefore, inheritance cannot hoi J with
respect to the use, the contract of hire is
necessarily annulled. It is otherwise where
a person enters into a contract of hire on
behalf of any other than himself, such as
an agent, an executor, or the procurator of a
Wakf:for in that case the contract is not
annulled, since if the contracting party die,
the contract is then transferred to him in
uhose behalf it was executed, and he conse-
quently becomes, by construction of LAW,
the contractor.
It admits a reserve of option — A RESERVE
of option is valid in hire. Shafei maintains
that it is invalid ; because if a right of op-
tion be reserved to the hirer, it is impossible
for him to reject, that is, to return the thing
contracted for complete, since in such case
some part of that thing is lost : or if, on the
other hand, a right of option be reserved to
the lessor, it is impossible for him to make a
complete delivery ; and either circumstance
is repugnant to the validity of option. The ar-
gument of our doctors is that a contract of hire
is a contract of commerce, in which it is not re-
quired that possession be taken at the meeting
of the contract ;* and a condition of option
may therefore be lawfully inserted in it, in the
'Meaning, at the time and place where,
the contract is executed.
same manner as in a contract of sale.— The
cause, moreover, of the validity of option, in
a contract of sale (namely, convenience), is
also to be found in a contract of hire.— ;In
answer to the arguments advanced by Shafei,
it may be observed that the circumstance of
a part of the subject of the contract being
lost is not repuojnans to a rejection : in oppo-
sition to sale, as in that instance the circum-
stance of any part of the subject of the
contract being lost is repugnant to a rejec-
tion under conditional option; or option from
defect. — The reason of this is that, in sale,
a complete return of the article is practicable,
under conditional option, or option Irom de-
fect, whereas in hire this is impracticable ; a
complete return of the subject of the con-
tract is therefore required in thj one case,
but noK in the other.— As. moreover, a com-
plete delivery is impracticable in hire, the
hirer may be comoelled to take possession,
in case of the lessor making delivery of it at
a time when part of the term has elapsed : —
in other words, where a person takes a house
(for instance) for a year, and the lessor does
not deliver it until after the lapse of a month,
the lessee is not at liberty to decline taking
possession of it for the rest of the year.
It is dissolved by the occurrence of any
sufficient pretext for dissolution.— A CON-
TRACT of hire is dissolved by a pretext,*
according to our doctors —Shafei maintains
that it is not dibsolved but by a defect or
failure, because as (agreeably to his tenets)
the advantage stands in placj of actual sub-
stance (whence it is that a contract holds
with respect to it) the case therefore bears
a resemblance to sale.— The argument of our
doctors is that advantage is the thing con-
tracted fur ; and as that is not a subject of
seisin, a pretext i , hire resembles a failure or
defect in merchandise exist-ng before it be
taken possession of, --in which case the con-
tract of sale is annulled, as the seller cannot
carry it into execution without bearing or
occasioning an injury, not incurred by it :
and the same reason holds in hire also, as
this is the meaning of an Oozir, or pretext,
according to our doctors.
Circumstance which from a pretext for
dissolving contracts of lure.— IF a person,
being afflicted with the toothache, hire a
surgeon to draw one of his teeth, and the
pain afterwards cease,— or hire a cook to
prepare a marriage -feast, and afterwards
repudiate the bride by her own desire, f the
•Meaning (in this place) any circum-
stance which would render it impossible to
carry the contract into execution without
inducing, to one or other of the parties, an
injury not provided for mentioned in the
contract —It is more fully explained a little
farther on. .
fSee Khoola.— his species of divorce
most commonly happens in consequence of
an aversion conceived by a wile to her hus-
band at their first meeting.
BOOK XXXI— CHAP. IX.]
HIRE
511
:ontractof hire is dissolved, because if it
were to continue in force, the hirer would
suffer a superinduced injury not incurred
by the contract : — and the same rule also
holds, if a person hire a shop for traffic, and
his property be all afterwards disposed of.
IF a person let to hire a house or shop,
and afterwards become poor and involved
in debt to degree which he is unable to
discharge but by the price of the house or
shop, the Kazee must in this case dissolve
the contract of hire, and sell the place for
payment of the debt : because in the en-
durance of the contract the lessor sustains
* superinduced injury not incurred by the
contract, — which superinduced injury, in
this instance, is that the Kazee will other-
wise seize and imprison him on account of
the debts, as he cannot be certain whether
the debtor speaks truly in declaridg that
"this is his only property." From the
opresiion "the Kazee must in this cate
dissolve the contract," it may be inferred
that a decree of the Kazee is requisite to the
dissolution ; and the same is mentioned in
the Zeeadath, treating of a pretext of debt.
Mohammed, on the other hand, in the Jama
Sagheer, says "Whatever I have described
to be a pretext, is competent to the annul-
ling of hire ;"— whence it may be inferred
that there is no occasion for a decree of the
Kazee : because, as a pretext, in hire, is the
same as a defect in merchandise before seisin
(as was before mentioned), it follows that the
contracting party may of himself dissolve
the contract. — The ground of the opinion in
the Zeeadat is that as, concerning the disso-
lution of hire on account of a pretext, there
is a difference of opinion, it is therefore
requisite that the Kazee issue a decree and
render it obligatory. Some of the Haneefite
doctors endeavour to reconcile both opinions,
by explain ing that if the pretext be not of
an evident nature (such as debt), there is
no occasion for a decree of the Kazee : but
if it be not evident, a decree of the Kazee
is requisite to render it so.
IF a person hire an animal to carry him
upon a journey, and something afterwards
occur to prevent his proceeding, this is a pre-
text ; for if the contract were put in force,
he might be subjected to injury, — as a person
may go upon a pilgrimage, and the proper
season for it may in the meanwhile pass
away,— or he may go in search of a person
who is indebted to him, and that person in
the mean time may appear,— or he may pro-
ceed upon a trading excursion, and may in
the mean time become poor. — If, on the con-
trary, the obstacle to the journey occur to
the Makar, or person who lets the animal to
hire,* it is not admitted as a pretext because
it is in his power, if he do not choose to go
himself, to send the animal under the care of
one of his servants or apprentices. — If, also
•Maker is a person whose business it is to
let horses, camels, &c., to hire.
he Makar fall sick, so as to be incapable of
proceeding upon the journey, this is not a
>retext, according to the Mabsoot,— Koorok-
lee is of opinion that it is a pretext, since
ending his animal under the care of another
person is not altogether void of injury : — tht
contract, therefore, is set aside in a case of
unavoidable necessity, as in sickness, but
not in a case of mere option, as in health.
IF a person let his slave to hire, and after*
wards sell 'him, this if not a pretext, because
le sustains no injury in case of the contract
:>e ing put into force, the only consequence
n cur red being, that his right of advantage
[from the slave's hire) is lost, which? is out of
the question in the present instance
IF a tailor hire a servant to saw for him,
and he afterwards become bankrupt, and
quit his business of tailor, this is a pretext ;
For if the contract were to continue in force
be would sustain injury, because of his
means (namely, his capital) being lost. — It
is proper to remark, that by the tailor men-
tioned in this example is to be understood
one who carries on business on his own
account : for with respect to a tailor who
works for hire, his only capital is needle,
thread, and scissors, whence he cannot be
considered as becoming bankrupt. If a
tailor, who has hired an assistant as above,
be desirous to quit his business of tailor and
to pursue the business of money-changer,
this is not a pretext, as it is in his power to
place the hireling in a particular part of his
shop for the purpose of exercising the busi-
ness of a tailor, whilst he himself pursues
the business of a money-changer in another
part.— It is otherwise where' a person hires a
shop to carry on the business of a. tailor, and
is afterwards desirous to exercise some other
trade, for this is not a pretext ; the reason of
which (as mentioned in the Mabsoot) is that
one person cannot exercise two different pro-
fessions.— In the instance, however, of a
tailor hiring a servant to sew, the persons
are two, and consequently may exercise two
different trades.
IF a person hire a servant to attend him in
a city, and afterwards travel, this is a pre-
text, as not being altogether void of injury ;
for the trouble of attendance is greater in
travelling ; whence if the servant were to go
upon the journey, he would sustain an in-
jury ; or if, on the other hand, the hirer were
prevented from undertaking the journey ; he
on his part would be injured ; and as neither
is to incur an injury by the contract, it fol-
lows that the circumstance in question forms
a pretext. — The same rule also holds if the
servant be hired in an absolute manner, by
the hirer saying to him (or to his master,
supposing the hireling to be a slave) "I hire
you" (or "I hire yrur s'ave") "to wait upon
me,1' without restricting the service either
to a stationary or a travelling description,
because it has been already mentioned that
the hire is in such case restricted to stationary
IF a person let land, and be afterwards
512
HIRE
VOL. III.
desirous to make a journey, this is not a
pretext, because it does not induce any in-
jury, since the lessee cr hirer has it still in
his power to derive his advantage from the
land, after the lessor's departure.— If, <n
the contrary, the lessee be desirous to make
a journey, this is a pretext, since a continue-
ance of the lease must either prevent the
journey, or induce an obligation of rent
without residence, which would be injurious.
Section
Miscellaneous Cases
A hirer or borrower of land is not respon-
sible for accidents in burning off thestnbile.
&c — IF a person either hire or borrow land,
and in burning the Hissayed, or stubble and
roots of the soil, happen to burn anything
upon the neighbouring lands, he is not
responsible ; because as, in exciting the
cause to the destruction, he was not uilty
of any transgression or trespass, he ( h- re-
fore stands in the .same predicame ,t \viiua
person who digs a well in his own h ^ise.* —
— Some say triat this holds only where he
sets tire to the btubole during a calm; the
wind rising afterwards ; — for if he set tire
to it whilst the wind is blowing, he is re-
sponsible, as he must in such case be sensible
that the tire will extend beyond his land.
A tradesman may unite with another, for
a moiety of the hire acquired upon the work.
— IF a fuller, tailor, or dyer who keeps a
public shop, and is possessed of credit, but
unskilled in his trade, place any person in
his shop who is skilled in the business, with
a view that he shall himself procure cloth to
be wrought upon, and the person in ques-
tion work with it, under a condition that a
moiety of the recompense or hire shall go to
him, this is lawful and valid, as being a
Shirkat Wadjooh, or partnership upon cre-
dit ; because, as the shop keeper procures
the cloth to be wrought with upon his own
credit, and the person in question works
upon it, the ends of both parties are thus
completely answered : — neither is the uncer-
tainty with respect to the amount of the
time injurious, since that must be in pro-
portion to what is acquired.
Hire of a camel to carry a litter with two
persons. — IF a man hire a camel to carry a
litter with two persons to Mecca, it is valid,
on a iavourable construction. — and he K at
liberty to put upon the camel a litter of the
usual dimensions — Analogy would suggest
that a contract of this nature is invalid (and
such is the doctrine of Shafei), because the
quality of a litter, with respect to its length,
breadth, and weight, is uncertain, and may
possible occasion disputes. The reason for
*A person digging a well on the public
highway, or in any other place of general
access, is responsible for the tine in case of
any person being killed oy falling into it ;
but a perron digging a well in his own house
or land is not responsible.
a more favourable construction of the LAW,
in this instance, is that the intent of the
rider is merely the conveyance of his person
upon the animal, the litter being a subordi-
nate consideration. Besides, as any uncer-
tainty is removed by supposing the litter to
be such as is commonly used, there can be
no occasion for contention. — The same rule
holds, although the owner of the camel
should not have sef>n the carpet and other
appurtenances. — It is, however, preferable
that he view the litter. &c., as thus uncer-
tainty is removed, and his assent indubi-
tably established.
A sumpter camel may be loaded with other
articles in proportion as the provisions he
carries are consumed. — IF a person ^ hire a
camel to carry provisions upon a journey,
he is entitled to load the cauu-l with other
articles during the j >urney, in proportion as
the provisions are consumed, because, as
being entitled to the carriage of a specific
load tor the whoie journoy he is therefore
entitled to exact such carriage complete. —
The same rule also holds with respect to any
thing else besides provision, provided it be
an article of weight, or measurement of
capacity.
OBJECTION. — It is not customary for tra-
vellers to impose any additional load upon
an animal in lieu of the provision they con-
sume upon the way ; — and as absolute con-
tracts must be construed agreeably to custom,
it would follow that it is not lawlul to load
the animal with other articles in lieu of the
consumed provisions.
REPLY —Custom admits of either con-
struction, since in some instances it is usual
to supply the defect in the article consumed,
as in the case of water, for instance ; — and
where custom is various, it is agreeably, in
absolute contracts, to act agreeably to the
requisites of them
BOOK XXXII.
OF MOKATIBS.
Definition of the terms — KITABAT, in its
literal sense, signifies a slave purchasing his
own person from his master, in return for
a sum to be paid out of his earnings, —
according to the exposition in the Jama
Ramooz. — (From what occurs in the course
of the present work it appears that the
literal meaning of Kitabat is junction, or
union.)— In the language of the LAW it sig-
nifies the emancipation of a slave, — with
respect to the rights of possession and action
(in other words, the conveyance and appro-
priation of property) at the time of the
continct, and with respect to his person at
the tirru of his paying the consideration of
Kitabat.
Chap. I. — Introductory.
Chap. II.— Of invalid Kitdbat,
BOOK XXXIII ]
WILLA
513
Chap. HI.— Of Acts lawful to a Moka-
tib, or otherwise.
Chap IV.— Of a Person transacting a
Kitabat un behalf of a Slave.
Chap. V.— Of the Kitabat of Partner-
ship Slaves.
Chap VI. — Of the Death or Insolvency
of the Mokatib ; and of the Death
of his Master.
[Sim*' the abolition of slavery this subject
has become comparatively useless, and
the leuiniiiK upon it i» there/ore umtttfd.J
BOOK XXXIII.
OF WILLA.*
Definition of the term.— WILLA literally
means assistance and friendship. In the
language of the LAW it signifies (according
to the exposition in the Inayal) that mutual
assistance which is a cause of inheritance
Willa is of two descriptions, Ittakitand \
Mawalat. — WILLA is of two species or des- j
criptions. I. Willa Ittakitj* (which is also i
termed Willa NiamitJ), the occasion of which |
is manumission from right of property (act j
cording to the Rawayet-Saheeh), whence it
is that if a person become proprietor of his j
kinsman by inheritance, such kinsman is i
free, and his Willa goes to that person.— II.
Willa Mawalat, § the occasion of which is a
contract of Mawalat [mutual amity— or patro-
nage and clientage], as shall be explained in
its proper place. — The occasion of the first
species, therefore, beiiig manumisvon, and of
the second, a contract of mutual amity, they
are termed the WILLA of manumission, or
the WILLA of mutual amity, by a reference of
the effect to the cause. Both species, more-
over, bear the characteristic of assistance : —
and as the Arabs were accustomed to assist
each other in vaiious ways, and the Prophet
interpreted sucn mutual assistance into Willa
of both species, he used to say of them,
indiscriminately. ''They have WILLA pc ipl*
among them," and also. "They have HA-
LEEFS [sworn confederates] among them ;"
by which last is understood the relation of
Mala Mawalat; as the Arabs were accus-
tomed to confirms their contracts of Mawalat,
or mutual amity, by oaths.
The Willa of a slave appertains to his
amancipator, rendering him liable to fines
incurred by the slave, and endowing him
with a lig/it of inheritance. — IF a master
emancipate his slave, the Willa of such slave
appertains to him ;— because the Prophet has
said. The WILLA of a slave belongs to the
person who emancipates him ;" and aUo,
because* I two consequences arise from manu-
mission : I. Liability to the Deyit. or fine of
blood, — the cause of which liability is assist-
ance, exh'bited and obtained by means of
manumission ; and, II Inheritance, — because
the emancipator has given life to the eman
cip-ited by means of removing his bondage,
and consequently inherits of him. The
relationship of Willa, moreover, resembles
relationship of blood, with respect to in-
heritance, and the obligation oi atonement
by fine, the Prophet having said. ''The
relationship of VViLLA is like the relation-
ship of consanguinity."
OBJECTION. — From this it would fellow
that the emancipated also inherits of his
emancipator, where he is destitute of kin-
dred (and such is the opinion of Hasan Bin
Zeeyad) ; whereas it is otherwise.
REPLY. — An emancipated slave is a
stranger with regard to his emancipator, and
consequently does not inherit of him. The
emancipator's right, moreover, to inherit of
the emancipated, is founded on a paticular
text of the KORAN, in opposition to analogy,
which, therefore, must not be abandoned or
departed from with respect to any other
instance of inheritance.
Another reason, also, why the Willa of an
emanipated slave appertains to his emanci-
pator is, that there must be in acquisition
for a surrender, — or, in other words, an
advantage in lieu of a loss ; and as, in con-
sequence of emancipation, the property in-
volved in the slave it destroyed, the Willa
thereof consequently beloi.y to his emanci-
* The re is no single word in our language
fully expressive of this term. The shortest
definition of it is "the relation between the
master (or patron) and his freed-man ;"
but even this does not express the whole
meaning.
fThe Willa of manumission.
I'l'he Willa of beneficence, or of favour.
§The Willa of mutual amity, or of con-
federacy.
*The passage between the crochets is in
some places rather obscure ; and affords an
instance of the great liberty occasionally
taken by the Molovees employed in the
composition of the Persian He Jay a, for
which indeed they have endeavoured t«
apologize, by alleging the excsssive cloi.-
nest and obscurity of the original text. (&e
introductory address.] The whole passage,
in the Arabic, stands verbatirr thus, — "be-
! cause he assists him thereby, and o nse-
i quently attaches him ; and he likewise, in
his bondage, whence he inherits, of him ;
and his Willa, with respect to him, resembles
relationship ; and also, because [there must
be] an acquisition for a surrender." What
mentioned of "the liability to the fine of blood
being induced by manumission" is because
an emancipator is the Akila of his freed-man.
' (Sw Metkli).
514
WILT. A
pator]. It is to be observed that a woman
is entitled to the Willa of her emancipated
slave in the same manner as a man ; —
because of the tradition before quoted ; —
and also because it is recoidcd the upon a
freed- man of Haimza dying, and leaving a
daughter (Hamza also being dead and
having left a diughtcr). the Prophet divided
his effects equally between this daughter and
the daughter of Kama za.— It is also proper
to observe that manumission for a compen-
sation, and manumission, without a compen-
sation, are alike with respect to this rul«*t
as the tradition above mentioned is absolute.
A stipulation of waving the claim to in-
heritance is invalid. — IF a person emancipate
his slave, engaging, at the same time that
"he will not claim the right from him," such
engagement in null, and the Willa appertains
to the emancipator notwithstanding ; because
[VOL III.
In the emancipt.it -on of a pregnant female
slave, the Willa of the f&tux belongs to her
emancipator.— Iv a slave marry the female
slave of a y, person, and she become preg-
nant, and her master then emancipate her,
she is accordingly free, together with the
foetus in her womb; — and the Wil'a of the
foetus belongs to her master, and never can
shift from him ; because he has emancipated
it, not as a dependant of the mother, but
independently; and of itself, as being a por-
ti.n of the mother, and it is capable of being
so emancipated. — The Willa of the child,
therefore, cannot shift fr Jin him, because the
Prophet has said. "The WILLA belongs to
the person who emancipates." — The same
rule holds if the female slave be delivered
of a child at any time short ot six months
from the date of her manumission, because
in this case the existence of the foetus at the
the condition "here mentioned is contrary to ! time of manumission is certified. The same
the text [of the KORAN], and is consequently j rule also holds if she be delivered of two
invalid.
of a slave
The Willa of a slave emancipated by
Kitabat appertains to his master. — UPON a
Mokatib paying his ransom he is free, and j
the Willa belongs to his master, although he
become free after his [the piaster's] decease ;*
because he becomes free in consequence of a
contract of Kitabat to which his master was
a party ; and as a Mpkatib, like a Mpdabbir,
is not a subject of inheiitance, he is conse-
quently emancipated while the master's
right of property continues — The same rule
also holds with respect to a slave whose
master has bequeathed him minumission, —
or a slave whom a person directs, in his will,
to be purchased and set free upon his decease
— for the act of the executor, after the
testator's death, is equivalent to the act of
the testator.
OBJECTION. — The slave in question can-
rot be considered as emancipated from the
testator, except where lie is his actual pro-
perty ; and he discontinues from being his
property because of his death.
REPLY. — The whole estate of the testator
is regarded as his property as long as there
is occasion, — that is, until his. will be
executed.
And the same of the Willa of Modabbirs,
Am-Walid* — IF a master of slaves die his
Modabbirs and Am-Walids are free (as has
been explained in treating of niir umission),
and the Willa of them belongs to him,t as
he emancipate L! them by making them Mo-
ilabbirs and Am-\Valids.
And slaves emancipated bv affinity. — IF a
pfcrton become proprietor of a relation within
the prohibited degrees, such relation is free,
(as has been explained under the head of
manumission) and the Willa of him belongs
to his person, as he is emancipated from his
property.
•In which case the Willa appertains to
his heirs.
•(•Descending, as a heritage, to his heirs.
children, one within the six months, and the
other after they have expired ; because
those are twins, as having been begotten
from one seed. It is otherwise where a
female slave, being pregnant, enters into a
contract of Mawalat with any person, and
her husharii also enters into a similar con-
tract with any other person ; tor in this
case the W'jlla of the child belongs to the
master of the father, because an embryo
cannot of itself be a party to a Mawalat
contract, as that is concluded by proposal
and acceptance, of which an embryo is in-
capable.
But if sh* be not delivered within six
months fiom the date of her manumission, it
may gifts from him to the fath.r's emanci-
pator. --!F the female slave mentioned above
be delivered of a child after six months from
the date of manumission, the Willa belongs
to the mother's betause the child is
in this case free as a dependant of th<> mother,
ami is thert fciv a dependant cf her with respect
to the Willa As, however, i.i this case, it is no
certain that the child existed at the time of
manumission so as that it should be emanci-
pated independently tun! of itself, if the father
beaflcrwaids emancipated the Willa shifts
from the master of the mother to the master
cf the father, because of the child having
become free, not of Use If. but depently.
It is otherwise wfiore produces a child
within six months, for in that case the Willa
would not shift from the one master to the
other The ground of this is, that Willa
staii Js in th> same predicament with parent-
age ; for the Prophet has said. WILLA is a
relationship as much as the relationship of
parentage; and cannot be sold, or given
away, or inherited." In the same manner,
moreover, as parentage is established on the
part of the father, so also is Willa. Besides,
the Willa was referred to the mother's
master, of necessity, merely because of the
father's incapacity : but upon the father
becoming capable, the Willa reverts to his
master ; — in the same manner as the child of
BOOK XXXIII]
WILLA
515
an asseverating woman* is of necessity re-
ferred to her family ; but if her husband
afterwards retract his assertions, *he parent-
age of it is then established in him— It is
otherwis where a female slave is eman-
cipattd during her e Jit from the death of her
husband, who was a Mokatib, and who has
left effects sufricunt to discharge his ran
bom,--and she orinys furih a child dt any
tuna within two y.Mrs frmti thj time of his
decease ; because in this case the Wilja of
th2 child appertains to the master of the
mother ; far as it is here impossible to rcfi r
the conception to a period subs.-quent to the
idilicr'? dcc«.abe, it must therefore be referred
to some tune during his hie ;- and as the
icn'tus existed j* «t the time ot her ir.anu-
musiun, the Wilia of U therefore belongs to
the- mother's master, since he has emanci-
pated the child by itself and independently,
it is also otherwise where a famale slave is
emancipated whilst in her lidit fiom divorce,
and brings forth a child within less th?n two
years from the date of her manumission ;
for in this ca.^e also, notwithstanding h~r
husband be emancipated, the Willa of tnc
child belongs to the mother's master
whether the divorce she was under be
reversible or irreversible. It bcl« n;» to hiiii
in the case of irreversible divorce; because
after such divorce the begetting of the child
cannot be attributed to the father, as his
having connexion with the female slave in
question after an irreversible divorce would
be unlawfu1, and we must always, as far as
possible, put a fair construction on the acts
of a Mussulman, The begetting of it is
therefore refrred to him antecedent to
divorce : and as the foetus exists at the time
of emancipation the Willd of it consequently
belongs to the mother's master, as he has
emancipated it of iUclf and independently.
In the same manner also, it belongs to him
in the case of reversible divorce ; because
the child being born of the slave in question
within less than two years, it is possible that
the foetus may have existed during divorce,
in which case there is no occasion for a
reversal of the divorce in order to ihe estab-
lishment of the parentage ;— or, on the other
hand, it is possible that the foetus may not
have existed durimz divorce, in which case a
reve^al of the divorce is essential to the
establishment of the parentage : — now such
reversal i^ doubtful :— no regard, threiore,
is paid to that, but the conception is referred
to the time ot the marriage ; and as the foetus
exists at the time of manumission, the child
is their for.- emancipated independently and
of itself. It is written in the Jama Sagh.-er,
that if a slave marry a freed- woman, and
they have children, and those children com-
mit any offences, the fine falls upon the
• Meaning a woman repudiated in con-
sequence cf Laan,
f Meaning " the child existed as (or, in
the state of) a foetus."
Mawlas of the mother : because they have
Income five as dependants of their mother.
Their father, rnoreovp, is not possessed
either of AkiJas or of Mawals by manumis-
sion. Consequently, they are of necessity
attached to the Mawlas of the mother, in the
same manner as in ths case of in assever-
ating woman, before a'.luded to: but if,
afterwards, the father be emancipated, the
\Uilla of them Lhxfts to the Mawlas of the
father, as- wu> before explained. The
Mawlas of the mother, however, are not in
this caj^e entitled to recover, from the Mawlas
of the father, the fine they have paid on
account of the children'? offence, because
at the time they paid it the Willa of the
children appcr'amed to them ; and the Willa
is n-'t established to the master cf the father
until he [the master] emancipate him [the
fatlur]: because the occasion of Wjlla,
namely manurniiiion, cannot be referred to
an antecedent time, but is restricted to the
time of emancipation — It is otherwise with
respect to the child of an asseverating
wuriifin, where the mother's tribe pay the
fine on account of any offence committed by
such child, and the husband afterwards
retracts his imputation against her : — for in
this cafe the parentage is established by
referring it to the conception of that child;
and as the mother's Mawlas have not paid
the fine willingly, but per force, they are
accordingly entitled to recover it
Case of a Peisian marrying a f reed-
woman. — IK a Persian * marry a f reed-
woman, and they have children, the Willa
of those children rests with the Mawlas of
the mother, whether ihe was emancipated
by an Arab or a Persian. The compiler of
the Hedaya remarks that this is the opinion
of Mjhanvne i; but that Aboo Yoosaf main-
tains that the child is in this case subject to
the same rule with the father, inasmuch as
its parentage is established in the father, in
the same manner as if the person who mar-
lied the slave in question were an Arab. — It
is otherwise, however, where the pei&on who
marries her is a slave ; for as a slavt is, con-
structively, a mere dead mrtter, the case
is therefore the same a§ if those children
had no father whatever. The argument of
Haneefa and Mohammed is that the Willa
of manumission is strong, and worthy of
regaid with respect to its effects, whence
equality is attended to in it, insomvch that
a Persian emancipator is not equal to mn
Arab emancipator. The parentage of a Per-
sian, moieover, is weak, as they pay no
regard to genealogy (whence no attention is
paid by them to equality in point of family);
and that which i» weak cannot oppose that
which is strong. It is otherwise where the
* Arab, Ajmee. This term applies not
only to the natives of Persia, but of all other
countries except Arabia. The case here con-
sidered turns upon the superiority which the
Arabs claim, in point of privileges, over ill
others.
516
WILLA.
[VOL. HI.
father is an Arab, because the parentage of
an Arab is strong, and is regarded with
respect to equality and the payment of fines;
— for as the assistance they afford to each
other is an account of a affinity or genealogy,
there is therefore no necessity, in the case of
an Arab, to have regard to the Willa — It
is related, in the Jama Sagheer, that if
a Nabathean infidel merry a freed- woman
who is a Christian, and become a Mussul-
man, and enter into a contract of Mawalat
with any person, and they afterwards hive
children, the Willa of those children (ac-
cording to Haneefa and Mohammed) apper
tains to the Mawls»s of the mother. Aboo
Yoosaf, on the con-rary, maintains that their
Willa appertains to the Mawlas of the father
(namely, his Mawla Mawalat) ; because,
although the contract of Mawalat b" but
weak, btill it is on the pait of the father : —
and hence the children in question resemble
the child of a Persian man and an Ar-b
woman ; — in other words, as, if a Persian
marry an Arab woman, and she bring forlh
a child, it is referred to the father's tribe, so
also in the present case — (1 he ground on
which this proceeds is that the parentage of
a child is weaker on the part of the mother
than on the part of the father ) The argu-
ment of Haneefa is that the Willa ot Mawalat
is weak (whence it is capable of dissolution),
whereas the Willa of manumission is strong
(whence it is incapable of dissolution) ; and
the weak cannot oppose the strong.
If the father and mother are both freed'
persons, the Wi/la of their child' en belongs
to the father's tribe — IF the father be a
freed- man, ana the mother a freed woman,
the parentage of their children is referred to
the father's tribe; because in this instance
the parents are both upon an equality: and
the father's side has the preference, as pro-
tection is on his side more effectual.
Heir ship is c \lablwhtd bv the Willa of
manumission — BY the Willa of manumis-
sion Asoobat* is established ; — m other
words; uhere a person emancipates his slave
he is Assaba f to such slave, and is entitled
^Asoobat, in its liteial sense, signifies
binding together the branches of a tree, a j
bundle of arrows, or so forth,— IN its second- I
nry sense it is used to express the descent of I
inheritance in the male line. j
t Assaba, in its primary sense, signifies a !
nerve, s,me\v. or temion, of an ox or other
animal, v ith whicr. bundles of arrows, £c , i
arc tied together. Hence Assaba is used to j
express the first htir or head of a family, '
since the various branches of the family are '
represented and fas it were) bound up in his ,
person — Assobat might t e rendered heir-
ship, and A^saba the heir; but as the trans-
lator is apprehensive this might confound
those terms with Wirasit and Waris [in-
heritance and heir m the most extensive
sense], he has therefore thoLght it advisable
in this palace, to preserve the original terms!
for the sake of distinction.
to inherit of him in perference to his m^ter-
nal uncles or aunts, or other uterine kin
dred; because the Prophet said to a person
who had purchased a slave and afterwards
emancipated him, " He whom you have thus
emancipated is your brother ; and if he
manifest his gratitude, it is the better for
him, but the worse for you ;— or, if he do not
manifest his gratitude, it is the worse for
him, but the better for you ; and if he die
without leaving heirs, vou are his ASSABA." —
T he daughter of I lamaza, moreover, emanci-
pated her slave : and the slave died, leaving
a daughter ; and the Propht constituted the
daughter of llamaza her heir in the manner
of an Assaba, that is, notwithstanding there
wa.s a daughter.— Where, therefore. Asoobat
is established on the part of the emancipator,
he precedes the relations (and such is the
opinion of Alee). If. however, the emanci-
pated have any Assaba by blood, they pre-
cede, as the emancipator comes after the
patcmal kindred.— -The ground of this is
that, in the saying of the Prophet above
I quoted, "if he die without leaving heirs/'
by th.* term heirs is to be understood those
the dv'-cription of Assaba. as may be inferred
from the tradition conctmng the daughter
of Ham.i/a, The emancipator, therefore,
] follows ?fu r the Assabas, but not after the
I maternal kindiod.* If, on the contrary,
i the emancipated have no Assabas by blood,
! the whole iiihetitar.ee belongs to the emanci-
| paior This is * here there is no participat-
! in-r heir. But whore there is a sharer the
i emancipator is entitled to what remains
j after paying the sharer ^ is [or her] portion ;
I because the emancipator is the Assaba,
agreeably to the tradition before quoted,
"1 he grounb of this is, that the Assaba is
one >\ho pr tects and assists his family ; —
and as a ma^ttt au's and assists his freed-
man (according to what has been already
stated), he is the icfrue his Assaba, Now an
Assaba takes what remains after paying
the portions .—hence the persor in question
takes what thus remains— If, therefore, the
emancipator were iiist to clic, and then his
fr<.?d-man, the estate of the latter would go
to the sons of the emancipator, nut to his
daughters.
An emancipatress* ''s entitled to the WilU
of her fieed-men, &c., but not of their
children — A WOMAN is entitled only to the
Willa ot the person whom she has herself
emancipated, or of the person whom she
(again) has emancipated, or of the person
whom she has create'! a Mokatib, or whom
her Mokatib has created a Mokatib, or of
the person whose Wiila has been trans-
ferred! to her by her freed-man ; because
* That is, he precedes the maternal kin-
dred.
t Arab. Jurra, literally "drawn over."—
A case of transferring or drawing over the
Willa, is where (for example) the male
slave of a woman marries a female slave.
ROOKXXXIIT.]
WILLA
517
•uch is the recorded opinion of the Prophet
upon this subject ; and also because, as
power, and the right of possessing property,
are established in the person emancipated by
the act of the emancipatress ; this person is
accordingly referred (in regard to Willa)
to her ; and in the same manner is referred
to her the person who is referred to her
freed-man. It is otherwise with respect to
parentage* (that is, the Willa of manu-
mission maybe established on the pirt of a
woman, but parentage cannot be so estab-
h.hed) ; because Willa is established in con-
sequence of the occurrence of a power to
possess property, occasiot.ee! by and arising
from the emancipation which may proceed
from a woman in the same manner as from
a man ;— whereas parentaqe is established
by regular cohabitation [Firash], and it is
the husband that possesses the light of co-
habitation, not the wife ; for she is the ap
propriated, not the appropriate! :- -hence
perentaye cannot be established in a woman
The* estate of a freed-man descends to the
lineal heir oj the emancipate, and not to his
heirs general — IT is to be observed that the
estate of a freed-man goes to the Assaba
[lineal heir] of the emancipator,— to the
nearest, and afur him to the next of kin —
and not solely to his children ; because in-
heritance does not hold with respect to
Willa, for if such were the case, the pro-
perty of the free-man would at all events
descend to the sons and daughters of the
emancipator (the sons receiving two shares
each, and the daughters onr),— whereas it is
not so — Hence it is evident that inhenrance
does not hold in Willa —Succession, how-
ever, holds with resppct to it :— but succes-
sion cannot b • established with regard to any
except a person from whom proceeds protec-
tion and aid ; and piotection and aid are
afforded by men only, not by women. — Now
it being proved that the estate of a freed-
man goes to the emancipator's Assaba,— to
the nearest, and after him to the next of
kin,— it follows that if a freed-man die,
leaving the father and the son of his eman-
cipator, the ri'iht of Willa descends to the
son, not to the father (according to Haneefa
-rind Mohammed), because the son is the
nearest A&saba [lineal heir] ;— and, in the
same manner, it would go to the master's
grandfather, not to his brother (according
to Haneefa), since (as he holds) the grand-
father is the nearest of the two.— In the
and the master of the female slave after-
wards emancipates her, and she brings forth
a child in six months from the date of her
manumission ; when the Willa of such child
belongs to the mother's master ; but if, after-
wards, the woman emancipate her slave,
the Willa of the child then shifts to her, as
being the emancipatress of the father.
*This means that an emancipatress it en-
titled to the Willa of her freed-men, &c.,
but not to the Willa of their children.
same manner also, the Willa of her freed-
man descends to the son of his emancipa-
tress not to her brother, for her son is the
nearest in lineal succession. — If, however,
the freed-man were to commit an offence,
the fine for it would fall upon her brother ;
because the offence of the freed-man is the
offence of the emancipatre-s, and her brother
is of her piternal kindred, whereas her son
is not so. — If, also, a freed -man die, leaving
a son of his master, and the children of
another sm, his estate goes to the son, not
to the grand-children, because the Willa
descends to the nearest. This is recorded
from several of the companions ; and among
the rest from Amroo, Alee, and Ibn Masaood.
Section
Of the Wi/Ja Mawalat, or Wi/Ja of Mutual
i Amity.
| Nature and effect uf a contract of Mutual
, lal — THE case of \Vi la Mawaiat is where
i (for instance) a strangv-r* savs to the person
! whose pros'lyte b^ is,t or to any other
\ person. "I enter into a contract of Mawalat
1 with you, so that if I die my property shall
| go to you, or if (on the other hand) I commit
an offence, the line is upon you or your
; Akila," and the person thus addressed as-
I sentt, accordingly, — m consequence of which
he becomes the Mawla of the stranger, and
upon his decease without heirs inherits his
i property — The stranger is termed the Mawla
{ Asfal, I and the person who thus accedes to
I the contract the Mawla Aaila. § — Shafei
! maintains that a contract of Mawalat does
i not occasion inheritance in any respect, and is
of no force whatever, as it tends to annul the
right of the public treasury I — whence the
invalidity of it with respect to any other
heir : for if it were valid with respect to
such, his right of heritage would be annulle ' ;
— and on this ground also it is, that (accord-
ing to Shafei) a man's bequest of his whole
propei ty is invalid although the testator be
destitute of heirs ; for still Uncording to
him) such bequest holds good to the amount
•Arab Ajimee. This term (as has been
already remarked) signifies, generally, any
person not an Arab. It is also used in the
same sense among the Arabs as Barbarian
with the Greeks, or Gentile among the Jews.
The case here stated applies to any infidel
alien coming into a Mussulman territory
under projection, and there embracing the
faith, in which case it was customiry for
some Mussulman to adopt him is his pro-
selyte.
fLiterally, "in whose hands he nan em-
braced the faith."
{Literally, "th? inferior Mawla," or the
§Literally, "the inferior Mawla," or the
client.
)Wherc a stranger dies without heirs
the whole of his property goct to the public
treasury.
518
WILLA
[VOL, III.
only of a third of his property, since if if
were effectual to the amount of the who'e,
the right of the public treisury would be
annulled.*— The arguments of our doctors
upon this point arc twofold. — FIRST, GOD
has said, in the KORAN. " ALLOW, r-> THOSE
WHO ENTER INTO CONTRACTS, THEIR SiiARE
OF INHERITANCE," which text related to
contracts of Mawalat :— -and it i-» aUo re-
corded that the Prophet, upon beincj ques-
tioned concerning a certain person who had
become the proselyte of another, and entered
into a contract of Mawalat with that otlv»r,
replied. " This per*on is endowed with a
right with regml to that man, superior to
ail others, both during jife and in ueath.1' —
from which it may be inferred, that dining
his proselyte's life h? is subject to fme> on
his account, and upon his decease is his
h<*ir. — SECONDLY ; the property of the pro-
.^elytc is this person's n«ht, whence he is at
liberty to make use of it in any manner he
pleases : for the property would fail to the
public freasury only from this necessity,
that there are no claimants to it, , not b'cau>e
the public treasury has anv right in it —
If, however, the proselyte leave any natuial
heir, such heir precedes the Mawla Mawalat,
notwithstanding he be of the uterine kin-
dred (such as a maternal uncle for instance) ;
because the two person in question are the
only parties to the contract, whence it is not
binding upon any other ; and an uterine rela-
tion is entitled to inheritance. — It is to be
observed* that in the contract in qu*stion
the parties must particularly mention and
stipulate fine and inheritance, as has b.en
explained in the exemplification of the case.
If, therefore, ihe stipulation of inheritance
be made on both parts, whoever dies fir't
inherits of the other ; but if on one part
only, heritage holds agreeably to stipulation.
In the same manner also, if responsibility
for fines be stipulated on both parts, each
is responsio'e for the fines incurred by the
other ; but if on one part only, responsibility
holds accordingly : for a thing is rendered
obligatory only by undertaking for it ; and
it cannot be undertaken for but by stipu-
lation It is also to be observed, that it is
essential in contracts of Mawalat, that the
Mawala, Asful, or, client, be a stranger [Aj IKH-],
and not an Arab ; because among the Arabs
aid ani patronage run in families or tribes—
(that is, one Arab a«ds or patronizes another
where they are both of the same tribe or
family), — whence they have no occasion for
engaging in contracts of Mawalat.
Either puny may dissolve the contract in
presence of the other. — THE Mawla Asfal,
or client, is at full liberty to desert from his
Mawla Aaila, or patron, and to enter into a
contract of Mawalat with some other person,
so long as the first shall not have paid any
fine of his incurring; because a contract of
Mawalat is, like bequest, a reversiblj deed. —
In the same manner, also, the M.wla Aaila,
I or patron, is at liberty to relinquish his right
i of Willa, and to break off the contract of
I Mawalat, because such a contract is not
binding. — It is requisite, in case of either
patty dissolving the contract, that it be dis-
solved in the presence of the other, in the
bame manner as in the ca^e of dismissing an
aqent, where the dismission is express, and
not implied, or virtually induced.
Or the inferioi patty may breach it off
in the superior's abMnct, by engi^tng in a
Mtiwalat with some other person. — IT is
otherwise, however, where the client enters
into a contract of Mawalat with a person in
the absence of the former patron ; for in this
ca^e the first contract of Masvalat is dissolved
without the presence of the party, this being
a dissolution by effect, and necessarily re-
sulti-.g ; — in other words, the dissolution of
the fir^t contract is a nv:ces.-ary cmsequjnce
of the formation of the second.— In this case,
th:n.fjre, the presence of the other party is
not rc.j'iisite ; in the same man.ier as the
prcscm J of an agent is not requisite where
he is viruii'ly dismissed frotn his employ-
ment, by t.'.e* constituent (for instance) him-
self selling tlie article concerning which he
, had constituted him his agent for sale.
! Rut he cannot do so after the other has
1 paid a fine incurred by him. — WHERE \ the
, patron pays the fine incurred for an offence
, committed by his client, the latter is incapa-
ciated Irom quiring him and engaging in a
I contract of Ma vvalat with any other person ;
; — because tlv? right of another then becomes
i implicated ; ai-d also, because the fine was
: decreed by the K •zc*.* —Besides, the fine paid
i by the patron on his account stands as a
! valuable cons1 deration, in the same manner
| as the return for a Rift ; whence he has it not
j in his power to turn from his patron, in the
j same manner as a donor, after receiving a
; return, ctnnot recede from^ his gift.— In the
j same manner also, the child of the client
i cannot turn from t e patron who has paid a
1 fine on account of its fathe- ; acid so likcxvUe,
I if the patron pav a fine on account of the child
., of his clLnt, neither the client not his child
j can afterwards turn from the patron, because
I with regard to the Willa Mawalat they are
I as on? person.
i A freed man cannot engage in a contract of
j MawaLit. — AN emancipated slave, as having
I a Mawla in his emancipator, is not at liberty
] to enter into a contract of Mawalat with
I any person ; because the Willa of Manumis-
sion is binding, whereas the Willa of Ma-
walat is not so; and during the existence of
a thing which is forcible and binding, a
thing which is not so cannot take place.
"He holding that, in case of a person
dying without heirs, two thirds of his pro-
perty must go to the public treasury at all
events.
BOOK XXXIV.]
COMPULSION
519
BOOK XXXIV.
OF IKRAH, OR COMPULSION,
The nature of compulsion defined — IKRAH,
or compulsion, applies to case where the
compeller has it in his power to execute
what he threatens, —whether he [the com-
peller] be the Sultan, or any other person, as
a thief (for instance) — The reason ot this is,
thit co.npuls.on implies an act which men
c^crctsj upon others, and in consequence of
\\liichti\siwilloMheothor is set at nought,
at the same tune that his pt.wer of action
still remains — Now this characteristic does
not exist unless th-* other (rurt;ly, the person
compiled) be pjt in fear, and appieh.Mid
that if he do not perf jr n what th/ omipzller
desires, the threatened evil will fall upon
him; — and this fear and appreh^nsun can-
nit take place unless the compeller be
possessed of power to carry his menace into
execution ; but provided this oower docs
exist, it is of no importance w ether it exist
in the 'sultan or in any other person Witn
resp:ct to what is recorded from Hane;ia,
that 'compulsion cannot proceed from any
except the Sultan," the loarncd remark that
this difference originates merely in the
difference of times, and not in any difference
of argument ; for in his time none possos-ed
power except the Sultan, but afterwards
changes took place with respect to the cus-
toms of mankind. — It is to be observed that,
in the same manner as it is essential, to the
establishment of compulsion, that the com-
pellor be able to carry his menace into exe-
cution, so likewise it is requisite that the
person compelled be in fear that the thing
threatened will actually take place ; and
this fear is not supposed except it appear
most probable to the person compelled that
the coiipeller will execute what he has
threatened, so as to force and constrain him
to the performance of ihe act which the
compiler requires of hint.
A person Jorced into a contttKt may after-
wards dissolve it — IF a persen exercise com-
pulsion up.iu another, by cutting, beating or
imprisonment, wuh 4 view to make him sell
his property, or purchase merchandise, or
acknowledge a debt of one thousand dinns
to a particular person, or let his house to
hire, and this other accordingly t>ell his pro-
peity, purchase merchandise or so forth, he
has it afterwards at his option either to ad-
here to the contract into which he has been
so compelled or to dissolve it, and take back
or restore the article purchased or sold;
because ono essential to the validity of any
of these contracts is that it have the consent
of both parties, which is not the case here,
as the compulsion by blows or other means
rather occasions a dissent ; and the contract
is therefore invalid.
Unless the means of compulsion be trifling.
— (Tnis rule, however, does not hold where
the compulsion consists only of a single
Wow, or of imprisonment for a singlt day,
since fear is not usually excited by this
degree of beating or confinement. Compul-
sion, therefore, is not established by a single
blow, or a single day's imprisonment: — unless
the compelled be a person of rank, to whom
such a degree of beating or confinement
would appear detrimental or disgraceful; for
with respect to such a person compulsion is
established by this degree of violence, as by
it his volition is destroyed.)
The purchaser becomes proprietor of goods
sold upon co.np.ilsion — IN the same manner,
also, an acknowledgment extorted by any of
the a~>ove modes of compulsion is invalid;
bee i use acknowledgment is a species of
proof, inasmuch as truth is n^ore probable, in
a/krirwledgn^cnt, than falsehood ; but in a
ca^e of convulsion falsehood is most probable
a? a man will acknowledge falsely where, by
so doi.ig he may avoid injury.
An acknowledgment extorted by compul-
sion is invalid. WHERE a person sells goods
by compulsion, as above stated; and makes
delivery of them under the influence of such
compulsion, the purchaser becomes proprietor
of them, according to our doctors — Ziffer
maintains that he does not become proprietor,
because a sale by co npulsion depends, for its
validity, upon the assent of the seller, and
a sale so circumstanced cannot endow with a
rijjht of property until such assent be signi-
fied. The argument of our doctors is that,
in the case in qu stion, the pillar of sale
(signified by proposal and acceptance) has
proceeded from fit persons with respect to a
fit sirjject ; the sale being merely invalid,
from a want of oae of the essentials of sale,
namely, the mutual consent of the parties ;
and the purchaser, in an invalid sale, be-
comes proprietor of the article upon obtain-
ing possession of it : whence it is that if a
person take nossession of a slave purchased
under an invalid ontract. and then eman-
cipate him, or perform such other act with
respect to him as cannot afterwards be an-
nulled, it is valid, and he must pay the seller
the value, as is the rule in all cases of in-
valid sale. — After the compu'sion has ceased,
however, if the seller signify his assent, the
sale then becomes lawful and valid, because
by such assent the causes of invalidity
(namely, compulsion and unwillingness) are
removed
But the seller mny resums the article,
provided he does not signify /i\\ assent to
the sal:— WHERE a person thus sells his
property by compulsion, he has still a right,
as long as he does not signify his absent to
the sale, to take back the article, although
the purchaser should have sold it into the
hands of another person.— It is otherwise in
all other cases of invalid sale; for in those,
after the purchaser has sold the article; the
sel er has no right to take it back; because
the invalidity of sale in those cases is on
account of the right of the LAW; and when
the purchaser sells the article to any third
person, the right of that person becomes
involved in this second contract ; and kis
520
COMPULSION
[VOL. III.
right preceedes the right of the LAW, at the
individual is necessitous, whereas the LAW
is not so. — In a case of compulsion, on the
contrary, the invalidity of the sale is on
account of the right of the seller ; and as he
is an individual, it follows that, in this case,
notwithstanding the right of the second
purchaser be involved in the second con-
tract, still both rights are upon a par, as
being both rights of the individual ; and
consequently, the right of the first cannot be
annulled by the right of the second.
Case of a Watfa ia/e. — IT is to be observed
that some consider a Waffa sale* to be in-
valid, in the same manner as a compelled
sale, and apply to it the rules of sale by
compulsvon ; whence (according to them) if
the purchaser in a Waffa bale sell the article
purchased, the sale so made by him may be
broken through, ts the invalidity of the sale,
in this case' is on account of the non- consent
of the seller, in the same manner as in a
case of compulsion — Waffa sale is where the
seller say; to the purchaser, "I sell you this
article in lieu of the debt I owe you, in this
way, that upon may paying the debt the
article is mine " — Some determine this to be,
in fact, a contract of pawn ; for between it
and pawn there is no manner of difference.
as; although the parties denominate it a sale,
still the intention is, in effect, a pawn. Now
in all acts regard is paid to the spirit and
intenion ; and the spirit and intention of
pawn exist in this instance, — whence it is
that the seller is at liberty to resume the
article from the purchaser upon paying his
debt to him, — Some, again, consider a Waffa
sale to be utterly null, as the purchaser, in
the case in question, resembles a person in
jest since he (like a jester) repeats the words
of sale, at the same time that the effect and
purpose of sale are not within his design
Such sale is therefore utterly null and void,
in the same manner as a sale made in jest
The Haneefite doctors of Samarcand, on ihe
other hand, h >ld a W<ffd sale to be both
valid and useful, as it is a species of sale
commonly practised from necessity and
convenience, and is attended with advantage
m regard to some effects of •sale, such as the
use of the article, although the purchaser
cannot lawfully dispose of it
A compelled bale is rende ed valid if the
se ler willingly receive tin price — IF, in a
case of compulsion, thj seller take possesion
o*' the price readily and willingly, the sale
is valid, as his thust taking possession of the
price is an argument of its validity; in the
same manner as where, in a suspended sale,
the seller readily and willingly receives the
price of the article, such receipt argues
the validity of the sale — So, likewise, if a
person advancing part of the pric-? conclude
a Sillim contract by compulsion, and the
* Literally, "a security sale;" so termed
because, by it, the seller insures to the pur-
chaser the debt he ewes him,
party who received the advance should
afterwards readily and willingly f'eliver the
article for which the advance had been paid,
his so doing is an argument of the validity
of the transaction. It is otherwise where
one perton compels another to make a gift,
saying to him, " make a gift of this article
to such a person," — but without adding to
the word gift "and delivery," and the per-
son thus compelled make gift and delivery
of the article to the per&on named; for such
gift is uttcily null, bccacsc the design of the
compcller is that the doru-e shall be endowed
with a right in the article upon the instant
of donation; and this design cannot be
obtained, in a case of gilt, but by delivery
of the article to the person specified. In
a case of sale by compulsion, on the other
hand, the end of the compcllcr is obtained
on the instant of compelling the party to
accede to the Contract of sale Gift upon
compulsion, therefore, comprehends a de-
livery of the article to the donee ; whereas
sale upon compulsion does not comprehend
a delivery of the article sold to the pur-
chaser,— whence it is that if the seller, after
aeceJing to the contract from compulsion,
make delivery of the arttcle without com-
pulsion, the sale is rendered valid by such
tieliven , —whereas the gift in question is
not rendered valid by a delivery of the article
to the donee.
But it is not valid if he be compelled to
recurve it. — IF, in a case of compulsion, the
seller take possession of the price by com-
pulsion, such receipt does not render the sale
valid; and it is accordingiy incumbent on
him to return the price to the purchaser, if it
remain in his hands, because of the contract
being invalid. If, howeyery, the price have
been lost, or have perished in his hands,
nothing can be taken from him in lieu of it,
because it was merely a trust with him, in-
asmuch as he took possession of it by consent
of the proprietor, namely, the purchase.
A sale in which the seller is compelled, but
not the purchaser, leaves the latter respon-
sible for the article, in case it be lost in his
hands. — IF one person compel an other to
sell an article to a third person, but do not
compel this person to purchase the article,
and it afterwards perish in the purchaser's
hands he [the purchaser] is responsible to
the seller for the value, as the article is
insured in his hands, such being the law of
invalid sale, It is to be observed, however,
that in this case the seller is at liberty to
take the compensation from the compeler ;
because as it was (in a manner) he who gave
the article to the purchaser, it may be said
that it is he who has lost or destroyed the
seller's property. In short, the seller, in
the case in question, is at ful liberty to take
the compensation from either of the two; in
the same manner as the proprietor of an
usurped article is at liberty to take his com-
pensation from either party, where the article
has first been usurped from him, and then
usurped by some other from the first ururper.
BooKjCXXIV.]
COMPULSION
521
If, however the seller take his compensation
from the compeller, he [the compeller] is
entitled to recover the value from the pur-
chaser, since, in consequence of paying the
compensation for the article, he stands as
substitute to the seller. — It is to be observed
that, in a case of usurpation, if the usurper
sell the article to Amroo, and he (again) sell
it to Khalid, and he (again) sell it to Bikroo,
and so on, from hand to hand, and the pro-
prietor take his compensation from Khalid
(for instance), in the case every purchase
subsequent to that of Khalid is legal and
valid ; because as Khalid, in consequence
of paying the compensation, becomes pro-
prietor of the usurped article, he then appears
to have sold his own property; where as every
purchase made before, and even the purchase
of Khalid himself, is invalid: because the
article usurped becomes the property of
Khalid, bv retrospect, from the time only
that he took possession of it. It is other-
wise whore similar circumstances follow a
compulsive sale ; for if, in such case, the
party compelled (namely, the first seller)
signify his assent to any one of the subse-
quent contracts, every other contract ante-
cedent to that one is valid, and so likewise
every subsequent contract ; because the in-
validity of these contracts was on account
of the right of the proprietor, as he had sold
his property upon compulsion ; and he there-
fore possesses a right to resume the property,
until he signify his assent : but upon his
assenting to any of these contracts, he re-
linquishes this right ; and all the contracts
become valid of course.
Section
A person may lawfully eat or drink a
prohibited article, upon a compulsion which
threatens life or limb. — IF one person use
compulsion towards another, by imprison-
ment or blows; with a view to make him eat
carrion or drink wine, still it is not lawful
for the person thus compelled to eat or drink
of those articles, — unless he be threatened
with something dangerous to life or limb, in
which case he may lawfully do so and the
same rule obtains if compulsion be used
to make a person eat blood or pork ; — because
the eating of such prohibited articles is not
permitted except in cases of extremity, such
as famine, since in any other case the
argument of illegality still endures. Now
extremity, or unavoidable necessity, do not
exist, to require the eating or drinking of
the article, except the not eating it be at-
tended with danger to life or limb ; but as
the eating or drinking is in such case
permitted, it follows that it is so permitted
where this danger is to be apprehended from
imprisonment or blows. Neither is the
person, who is thus put in fear, under any
obligation to suffer the thing menaced ; but
rather, if he do suffer it, and refrain from
eating or drinking the prohibited article
until he die, or lose any of his limbs, he is
an offender ; because as, under such circum-
stances, the eating or drinking is permitted
to him, it follows that, if he refuse, he is an
accessory with another to his own destruction,
and is consequently an offender, in the same
manner as if he were to refrain from eating
carrion when perishing for hunger. Aboo
Yoosaf maintains that he would not be an
offender from persisting, unto death or dis-
memberment, in his refusal ; because the
eating or drinking, in the case in question
is merely licensed (since the articles still
continue prohibited). — whereas the refrain-
ing from them is an observance of the LAW ;
and consequently, in persisting to refuse, he
acts in obedience to the LAW.—-To this, how-
ever, it may be replied, that in the case in
question the illegality no longer remains ;
because, as a situation of compulsion or in-
dispensable necessity is particularly excepted
in the KORAN, it follows that under the cir-
cumstances here described the argument of
illegality does not exist : hence the eating is
positively lawful, and not merely lincensed. It
is to be remarked, however, that in the case in
question the compelled person is an offender
only where he knows the eating to be lawful
and nevertheless refrains : because as its
legality is a matter of a concealed nature, it
follows that he stands excused, from ignorance.
— in the same manner as men are excused for
omissions or neglects, from ignorance, in the
beginning of their conversion to the faith,
or during their residence in a hostile country.
A person must not declare himself an in-
fidel, or revile the Prophet, upon compulsion,
unless he be in danger of otherwise losing life
or limb. - IF one person compel another to
turn infidel, or to revile the Prophet, by
imprisonment of blows, still compulsion [in
its legal and exculpatory sense] is not estab-
lished ; but if he menace him with some-
thing which puts him in fear, and gives room
to apprehend danger to life or limb, in this
case compulsion is established. — The reason
of this is; that as by mere blows or imprison-
ment compulsion is not established with
regard to eating prohibited meats (as was
before explained), it follows that it is not
established with regard to infidelity a fortiori,
since the illegality of infidelity is much
greater. When, therefore; a person is put
in fear for his life or limbs, so as that
compulsion is established, it is lawful for
him to make an exhibition of infidelity
(that is, to repeat infidel expressions),—
and if he merely exhibit this with his lips,
but keep his heart steady in the faith,
he is not an offender ; because when Amar
had fallen into the hands of the infidels
and they had compelled him to revile the
Prophet, he said to him. "If you find your
heart still firm in the faith, your uttering
infidel expression is immaterial ;— nay, if
they again should compel you, you may
again repeat such infidel expressions ;" —
and a passage in the KORAN was also re-
vealed to the same effect. Another reason
is that by uttering infidel expressions faith
is not destroyed, since the actual faith
522
COMPULSION
[VOL. III.
(by which it is understood rectitude of
heart) still continues unaffected, and if he
were to refuse uttering such infidel expres-
sions he would incur actual destruction, as
the infidels would in that case dismember
or put him to death. — Yet if he persist in
refusing unto death, he has a claim to merit,
and is entitled to his reward ; because Jeeb
persevered in refusing, and suffered death
in consequence ; and the Prophet gave him
the name of Seyd al Shaheed [the martyr],
and declared, in afterwards speaking of him,
"he is my friend in heaven ;" and also
because, in thus acting, his honour is effec-
tually preserved. A refusal, moreover, for
the sake of religion, to utter any infidel
expressions, is an observance of the LAW :
in opposition to the case before stated, as
there the eating of carrion, or so forth, is
positively I awful, because of the exception
cited on that subject.
A person destroying the property of another
upon compulsion i« not responsible; but the
compeller is so. — IF one person compel another
to destroy the property of a Mussulman, by
menacing him with something dangerous to
life of limb, it is lawful for the person so
compelled to destroy that property : because
the property of another is made lawful to us
in all cases of necessity (such as in a situa-
tion of famine for instance), and in the case
in question this necessity is established. ~
The owner of the property must in this
instance take the compensation from the
compeller : because the compelled is merely
the instrument of the compeller in any
point where he is capable of being so ; and
the destruction of property is of that
nature.
A person murdering another upon com-
pulsion is an offender ; but the compeller is
Habit to retaliation — IF one person compel
another, by mencing him with death, to
murder a third person, still it is not lawful
for the person so menaced to commit the
murder, but he must rather refuse, even
unto death.— If therefore, he notwiths'and-
ing commit the murder, he is an offender,
since the slaving of a Mussulman is not per-
mitted under any necesssity whatever.—In
this case, however, the retaliation is upon
the compeller, if the murder be wilful. —•
The compiler of the Hedaya remarks that
this is according to Hmneefa and Mohammed ;
and that Ziffer, on the contrary, maintains
that the retaliation, is upon the compelled
person ;— whereas Aboo Yoosaf holds that
there is no retaliation upon either party —
andShafei (on the contrary) contends that
it is incurred by both.— The argument of
Ziffer is, that the act of murder has pro-
ceeded from the compelled person, both de-
facto and duo animo, and the LAW, also,
has attached to him the effect of it, namely,
criminality : consequently he incurs retalia-
tion—(It is otherwise in the case of destroy-
ing the property of another upon compulsion;
since as the LAW has not attached the effect
thereof, namely, the criminality, to him, it
is consequently referred to another, namel>
the compeller) Such also is the argument
of Shafei for awarding retaliation upon the
compelled person : and his argument for
awarding it upon the compeller is, that from
him proceeded the moving cause of the mur-
der, as the compulsion was the cause of it ;
and the moving cause in murder stands (ac-
cording to him) subject to the same rule
with the actual perpetration ; — as in the
case of witnesses whose evidence induces
retaliation ; in other words, if two witnesses
give evidence of a wilful murder, and in
conformity with their testimony retaliation
be executed upon the accused, and the per-
son to whose murder they had borne testi-
mony afterwards prove to be still living,
those witnesses are then put to death in
retaliation. The argument of Aboo Yoosaf
is that concerning the propriety of awarding
retaliation upon the compelled person there
is a doubt ; and, in the same manner, there
is also a doubt concerning the propriety of
awarding it upon the compeller ; for in one
way the view is to fix the murder upon the
compelled, because of his being an offender,
and it is also fixed upon the compeller,
because of his being the mover : — thus a
doubt opposes itself with respect to each ;
and hence neither of them is liable to re-
taliation. The argument of Haneefa and
Mohammad is that the compelled person is
in this instance, forced to the commission of
the murder by a natural instinct, which
leads a man to prefer his own life to that of
another ; and he must therefore, as for as is
possible, be regarded as the instrument of
the compeller. He is accordingly considered
as his instrument in the cominission of the
murder, in the manner of a weapon. He
cannot, however, be his instrument with
regard to the criminality of the murder, in
such a way as that no part of the crimi-
nality would attach to himself, but the whole
be imputable to the compeller ; and hence
the murder, with regard to its criminality,
is restricted to the person compelled. — This
is therefore in some measure analogous to a
case of compulsive manumissinn, — or of a
person compelling a Magian to slaughter a
goat : that is to say, if one person compel
another to emancipate his slave, and he
emancipate him accordingly, in this case the
emancipation is referred and imputed to the
compeller, whence he is answerable for the
value of the slave, — but the emancipation is
imputed to the compelled with regard to the
execution of it, for if it were in this respect
also imputed to the compeller, the slave
would not become free; — and, in the same
manner, if a person compel a Magian, or
other idolater, to slaughter the goat of
another, his act is referred and imputed to
the compeller, with regard to the destruc-
tion of the property, but not with regard to
a lawful Zabbah, whence the goat is pro-
'Arab. Zabbah. (It is fully explained
under its proper head.)
BOOK XXXIV.]
COMPULSION
523
hibitcd and carrion : — and so likewise, in the
case in question, the act of the compelled
person is imputed to the compel ler with re-
spect to the destruction, not with regard to
the criminality.
Cas.e -o/ compelled divorce or emancipa-
tion.— IF one person compel another to di-
vorce his wife, or to emancipate his slave,
and this person accordingly divorce his wife
or emancipate his slave, such divorce or
emancipation takes effect, according to our
doctors ; in opposition to the opinion of
Shafei as has b(*en alreadv stated under
the head of DIVORCE. —In the case of
compulsive manumission, the person com-
pelled is entitled to take the value of the
slave from the compeller, because as in this
case the compelled admits of being consi-
dered as the instrument of the compeller
with regard to the destruction of property;
to him such destruction is accordingly re-
ferred and imputed. Hence he is at liberty
to seek a compensation from the compeller,
whether rich or poor ; and the slave is not
liable to emancipatory labour, as that could
only be due from him either with a view to
his emancipation, or on account of the right
of some oth<*r person being involved in him,
neither of which motives exist in the present
instance — It is also to be observed that the
compeller, in this case, is not entitled to
take from the slave his value as oaid to his
proprietor ; because as he Fthe compeU^f] is
sued on the score of a destruction of the
slave, it may therefore be said that he has
fas it were) murdered or made away with
the slave ; and he [the slave] consequently
cannot be responsible — Tn the case of com-
pelled divorce, also, the person compelled is
entitled to take from the compeller half the
dower, provided the divorce be before con-
summation : — or, if no dower was men-
tioned in the marriage 'contract, h<? mav
take from him that for which he is himself
in such casi» responsible, namely, a Matat, or
present, as that is what he incurs by the
divorre * — It is otherwise where the com-
pelled divorce is pronounced after consum-
mation ; for in that cas<» the Hower has been
alreadv made rlup bv the consummation, and
is not ma HO so bv the divorce*.
Cn*e of a compelled nimnntirfnt of agency
for divorce or emincivtion.^-lF 'a oerson,
upon compiilsion, create another hta agent
for divorre or ^mancipation, and the a<?ent
divoce the wife, or emancipate the slave,
of the person thus compelled to authorize
him, sticb divorce or manumission ii valid,
on a favourable construction ; because a
compelled contract or commission, provided
it be suHh as is rendered invalid bv involving
an invalid condition; is invalidated bv the
compulsion : but a commission of agency is
not rendered invalid by involving an invalid
condition. — Tn the case of divorce, the com-
pelled constituent is entitled to take half the
dower from the compeller, — and, in the case
* See Vol. I., p. 464.
of manumission, t~> take from the compeller
the value of the slave; because in both cases
the end and design of the compiler was to
destroy the constituent's right jf property,
in performing the act for which ho appointeth
him agent.
No deed, in itself irrversible, can be ex-
tracted after being executed by compulsion. —
IT is to observed, as a rule, that in all
deeds or contracts which, after engagement,
do not admit of reversal or dissolution,
compulsion has no effect whatever, but they
are equally obligatory and under com-
pulsion as otherwise Hence compulsion
has no operation upon a vow, since this (un-
less it be of a suspended nature) incapable
of dissolution ; and accordingly, the person
compelled into such a vow is not entiled to
take any thing whatever from the compeller,
in consideration of the loss he incurs by
such vow. — In the same manner, also, com-
pulsion is attended with no effect in oaths,
or in Zihar, as those do not admit of retrac-
tion : and reversal of divorce and Aila are
also subject to the same rule, as well as a
recantation of an Aila oath at the time of
making the assentation. In Khoola, also,
as being a suspension of divorce on ^ the part
of the husband (for he suspends it on the
payment of the consideration), compulsion is
attended with no effect, since it is incapable
of reversal or dissolution ; and accordingly,
if the husband be compelled into it, not the
wife, she is answerable for the consideration,
since she assents to it, as having undertaken
for it without compulsion.
Whoredom by compulsion incurs punish-
ment.—I? a person upon compulsion, commit
whoredom, he is liable to punishment, accord-
ing to Haneefa.— except where the compeller
is a Sultan — The two disciples, on the con-
trary, maintain that he is not liable to
punishment in either case.
Case of apostacy upon compulsion. — IF a
person, upon compulsion, become an apostate
by pronouncing a renunciation of the faith,
yet his wife is not separated from him, be-
cause apostacy has a connexion with belief,
whence if his men^l faith continue firm, he
does not become an infidel ^by the mere verbal
renunciation.—In the case in question, more-
over, his infidelity is dubious, and conse-
quently his wife is not separated from him, be-
cause of the doubt. — If, therefore, ihe husband
and wife differ, she insisting that she has been
separated, and he that his renunciation was
only pronounced outwardly, but that this faith
still remains firm, his declaration must be
credited ; because a declaration of apostacy
is never used with a view to effect a matri-
monial separation, but merely signifies a
change of belief: and the compulsion, on the
other hand, affords an argument that the
belief has not been altered :— consequently
his declaration must be credited.—It is other
wise with respect to a man turning Mussul-
man upon compulsion; as a man who embraces
the faith upon compulsion is nevertheless
admttiedto be a I Mussulman, because of the
524
INHIBITION
[VOL. III.
possibility that his faith accords with his
words. — In short, in both cases (namely, com-
pulsion to apostacy, and compulsion to Islam)
a preference is given to Islam, as it is the
superior, and cannot be overcome. — What
is here advanced relates merely to the award
of the Kazee ;* for with GOD, if the person
do not believe in his heart, he is not a Mus-
sulman.
Case of I slam upon compulsion. — IF a per-
son become a Mussulman upon compulsion,
so as to decreed a Mussulman, and
afterwards apostatize, still he is not worthy
of death, since his Islam is doubtful, and
doubt prevents the execution of death upon
him.
Case of a husband acknowledging his having
apostatized upon compulsion. — IP a person,
after having made, upon compulsion, a decla-
ration of infidelity, should say to his wife,
who claims a separation, "I said a thing in
which I was not serious" in other words,
("I spoke falsely"), in this case his wife is
separated from him in the conception of the
Kazee, f and he [the Kazeel must issue a
decree accordingly, although there be no sepa-
ration before GOD — The reason of this is, that
from his acknowledgment it is established
that he was not compelled into his declara-
tion, but made it without compulsion, as the
compeller used compulsion towards him not
with a view to extort the declaration from
him, but with a view to make him change
his faith ; and as he, of his own choice,
made the declaration of infidelity, and his
wife claims a separation, his allegtion that
"he intended nothing" cannot be credited
with the Kazee, who must therefore issue a
decree of separation, although there be no
separation in the sight of GOD. — If, on the
other hand, he allege that " he intended
merely to fulfil the design of the compeller,
namely, to make a declaration of infidelity,
at the same time that he spoke under a
mental reservation," in this case his wife
is separated from him both with the Kazee,
and also in the sight of GOD ; because in this
case he appears to have made a serious
declaration of infidelity, notwithstanding he
may have screened himself under the mental
reservation. — In the same manner: if a per-
son compel another to worship a cross, or to
revile the holy person of the Prophet, and
he do so accordingly, and afterwards plead
that " his design in worshipping was the
worship of GOD," — or "by Mohammed he
ment some other than the Prophet," his
wife, claiming separation, is separated from
him with the Kazee, but not in the sight of
GOD ; — whereas if he were thus to worship a
cross, or to revile the Prophet, under a mere
mental reservation his wife would be sepa-
rated from him both with the Kazee, and also
in the sight of GOD. for the reasons above
stated.
law.
* That is, "relates to the mere point of
P."
f That is, "in the eye of the LAW."
BOOK XXXV
OF HIJR, OR INHIBITION.
Definition of the term. — HIJR, in its primi-
tive sense, means interdiction or prevention.
In the language of the LAW it signifies an
interdiction of action, with respect to a par-
ticular person, who is either an infant, an
idiot, or a slave. — the causes of inhibition
being three, — infancy, insanity, and ser-
vitude.
Chap. I. — Introductory.
Chap. II. — Of Inhibition from Weakness
of Mind.
Chap III. — Of Inhibition on account of
Debt.
CHAPTER I.
Inhibition operates upon infants, slavest
and lunatics. — THE acts of an infant are not
lawful unless authorized by his guardian, nor
the act of a slave unless authorized by his
master ; — and the acts of a lunatic, who has
no lucid intervals, are not at all lawful. The
acts of an infant are unlawful, because of the
defect in his understanding ; but the license
or authority of his guardian is a mark of his
capacity: whence it is that in virtue thereof
an infant is accounted the same as an adult.
The illegality of the acts of a female or male
slave is founded on a regard to the right of
the owner : — for if their acts (such as pur-
chase and sale) were valid and efficient, they
would be liable to debt, and their creditors
might appropriate their acquisition, or even
sell their persons for the discharge of their
demands, whence the master's advantage
would be defeated. If, however, the master
signify his assent to their acts, he thereby
agrees to the destruction of his right. With
respect to the acts of a lunatic, they are not
lawful under any circumstance, as he is
utterly incompetent to act at all, although
his guardian should agree to his so doing.
It is otherwise with respect to a slave or an
infant : for a slave is possessed of personal
competency, and there is hope of an infant in
due time attaining that competency, — whence
there is an evident difference between those
and lunatics.
Whence purchase or the sale by them requires
the assent of their immediate superior. — IF a
slave, an infant or a lunatic, should sell or
purchase any article, knowing at the time
the nature of ourchase and sale, and intend-
ing one or other of those, the guardian, or
other immediate superior, has it at his option
either to give his assent if he see it advis-
able, or to annul the bargain ; because, as
the control and suspension with regard to
the acts of a slave are on account of the right
of his mastei, it follows that he has an option
with respect to them ; and as the same con-
*Arab. u serrif, meaning transactions of
any kind, such as purchase, sale, cr so forth*
BOOK XXXV.— CHAP. I.]
INHIBITION.
525
trol and suspension as to the acts of an
infant or a lunatic are with a view to the
security of their interest, their guardians are
therefore to examine and attend to what may
be good for them in their acts. It is requisiie,
morever, that the persons here described
know the nature of sale, in order that the
pillar of the contract may exist, and the sale
be concluded so far as to remain suspended
upon the guardian's consent ; — and & luntic
sometimes knows the nature of sale, and
designs it, although he be incapable of dis-
tinguishing between the profit and loss
attending it. — (A lunatic of this description
is termed a Matooa ; — and his agency is like-
wise valid,— as has been already mentioned
in treating of agency.)
OBJECTION. — Suspense obtains only in sale;
the original rule in purchase being that it
takes effect upon the agent :* but in the
present instance, purchase by an infant or a
lunatic depends upon the ascent of the guar-
dian, in the same manner as sale by them.
REPLY. — The non-suspense of purchase is
only where its taking effect upon the agent
is possible, as in the case of purchase by a
Fazoolee, or unauthorized person ; but in the
case in question it is impossible that the
purchase should take effect upon the agent,
because of his incompetency where he is an
infant or a lunatic, and because of the injury
to the master where he is slave. — Purchase
by them, therefore, is also suspended.
But it operates upon them with respect to
words only, not with respect to acts. — IT is to
be observed that the three disqualifications
in question, namely, infancy, insanity, and
servitude, occasion inhibition with respect to
words, but not with respect to acts;f because
acts, upon proceeding from the actor, are
existent and perceptible, whereas mere words,
such as purchase, sale, and so forth, are
accounted existent only where th*?y are of
lawful force and authority, which depends
upon the design of them, a thing which,
in the case of infants and lunatic^, is not
regarded, because of thpir want of under-
standing; or in the case of slaves, because
of the injury to their master— In short, the
disqualifications here considered occasion in-
hibition with respect to speech, but not with
respect to actions ; — unless, however, those
be of such nature as to induce an effect
liable to prevention from the existence of a
doubt, such as punishment or retaliation, in
which case infancy or lunacy occasion inhi-
bition; whence it is that infants or lunatics
are not liable to punishment or retaliation
since no regard is paid to their design.
Arab. Mobashir : meaning the actor <
performer of any thing; whence, in treating
?4unmes' ilfc ls touted the perpetrator
(The translator thinks it is proper to explain
this distinction, because of the equivoca
nature of the term agent.)
t Arab. Ifyal. Meaning overt acts, such
as a destruction of property, *nd so forth.
All contracts or acknowledgments by an
nfant or fanatic are invalid; and so like-
wise divorce or manumission pronounced by
hem. — No contract entered into, nor acknow-
edgment made by an infant or lunatic is
valid, for the reason before assigned ; —
and, in the same manner, divorce or manu-
mission pronounced by them does not take
place, the Prophet having said, " every
divorce takes place except that pronounced
an infant." — It is to be observed, more-
over, that manumission is peculiarly pre-
judicial : — and an infant does not understand
the nature of divorce, as not -being capable
of desire; and his guardian cannot possibly
know whether the infant and his wife may
not agree together after he attains maturity.
— Hence the divorce or manumission pro-
nounced by an infant are not suspended, in
their effect, upon the consent of the guar-
dian.
Or by their guardians on their behalf.—
IP, also, the guardian himself pronounce a
divorce upon the infant's wife, or grant manu-
mission to his slave, it does not take place: —
in opposition to other acts, such as purchase,
sale, and so forth.
They are responsible for destruction of
property. — IF an infant or a lunatic destroy
any thing, they are liable to make a recom-
pense, in order that the right of the owner
may be preserved. The ground of this is
that destruction occasions responsibility, in-
dependent of the intention or design: — as
where, for instance, a man's property is
destroyed, from being fallen upon by a per-
son walking in his sleep, or from the falling
of an inclined wall, after due warning; in
which cases ihe sleeper or the owner of the
wall are responsible, although they did not
design the destruction.
Acknowledgment by a slave affects him-
self, not his master ; and takes effect upon
him on his becoming free — AN acknowledg-
ment made by a slave is efficint with
respect to the slave himself, because of his
competency; but it is inefficient with re-
spect to his master, from tenderness to his
right; for if he were liable to be affected by
it, the debt or obligation contracted by the
slave's acknowledgment would attach te his
[tho slave's] person or to his acquisitions,
which would be destructive of his [the
master's] property. —If, therefore, a slave
make an acknowledgment concerding pro-
perty such property is obligatory upon him
after he shall become free; because a slave
is in. himself competent to make a valid
acknowledgment, the validity of which is
however obstructed by the right of his
master; but that right is extinguished
upon his becoming free, and consequently
the obstruction then ceases to exist.
Or on the instant, if it induce punishment
or retaliation. — IF a slave make an acknow-
ledgment inducing punishment or retalia-
tion, those are executed upon him on the
instant, since he is accounted free with
respect to his blood, whence it is that his
526
INHIBITION.
[VOL. III.
master's acknowledgment affecting his blood
is not admitted.
Divorce pronounced by hirn is valid. —
DIVORCE pronounced by a slave is valid and
efficient; because of the saving [of the Pro-
phet 1 before quoted; and also because the
Prophet has said, " a slave and a MOKATIB
are not masters of any thin? except divorce."
— Besides, as a slave knows what is advis-
able for him with regard to divorcing his
wife, he is therefore competent to that act.
His master's right of property in him, more-
over, or the advantage he derives from his
services , are not liable to be thereby lost or
defeated. — Divorce by a slave is therefore
lawful and effectual.
CHAPTER II
ON INHIBITION FROM WEAKNESS OF MIND.*
Inhibition with respect to a prodigal. —
HANEEFA has declared it as his opinion that
there is no inhibition upon a freeman who is
sane and adult notwithstanding he be a
prodigal ; t and also, that the acts of such
a person, with regard to his property, are
valid, although he be one of an extravagant
and careless disposition, who throws away
his property on objects in which neither his
interest nor his inclination are concerned.
A prodigal [Safeeya] signifies one who in
consequence of a levity of understanding
acts merely from the impulse of the moment,
in opposition to the dictates of the LAW and
of common sense. — Aboo Yoosaf, Mohammed,
and Shafei maintain that a prodigal is under
inhibition, and is interdicted from acting
with his own property, as he expends his
substance idly, and in a manner repugnant
to the dictates of reason. Hence he is placed
under inhibition for his own advantage, be-
cause of the analogy between him and an
infant : — nay, he is to be inhibited rather
than an infant since in an infant careless-
ness and extravagance are only to be appre-
* Arab. Fisad; meaning fin this place)
any species of mental depravity (not occa-
sioned by a defect of understanding), or the
practice of any folly, such as extravagance,
or so forth.
fArab. Safeeya. According to the lexicons
it signifies light-minded. Prodigal may ap-
pear, in many places, to be rather too harsh
a term. The word mSpht more literally be
rendered indiscreet, it being frequently op-
posed, in the sequel, to Rasheed, a discreet
person. As, however, the translator does
not recollect any sustantive in our language
perfectly correspondent with this idea, he
has thought it advisable to adopt that term
which most nearly answers to the definition
of the Mussulman doctors, although it be
not precisely what he could wish.
bended, whereas in him they are certain, —
whence it is that he is not entrusted with
the care of his own property. Besides, if he
were not under inhibition , there would be
no advantage in withholding his property,
since in such case he might still destroy
what is kept from him hy his words or
declarations. The arcument of Haneefa is
that as a prodigal is still supposed to be a
person naturally endowed with sense and
understanding, as much as one who acts
discreetly, he therefore is not subject to in-
hibition anv more than a prudent person.
The ground of this is. that if the prodigal
were subject to inhibition (trnt is, if his
power of acting were doubted), he would
be excluded from humanitv and connected
with brutes, an exclusion still more injurious
to him than anv extravagance of which he
could be guilty; and to remedy the smaller
evil bv the greater would be absurd. If,
however, in laying an inhibition upon a free
man who is sane and adult anv general evil
be remedied (such as in disqualifying an
unskilful phvsirian, "or a profligate magis-
trate, or a mendicant imposter), the inhibi-
tion is lawful (according to what is reported
from Hanoefa), since in this instance the
smaller evil is used to remedy the greater,
which is just and reasonable. With respect
to the argument for inhibition noon a prodi-
gal, from the circumstance of his not being
entrusted with his own property, it is not
admitted, since inhibition is a stilt greater
hardship uoon him than withholding his
property; for the legal itv of the smaller
hardship does not. prove the greater hard-
ship to be legal. Tn the sam» manner, also,
the analocrv adduced between a prodigal
and an infant is not admitted, since an
infant is incapable of pursuing his own
advantage, where** a nrodicral is capable
of so doing. Besides, although in subject-
ing th«> prodigal to inhibition his interest
and advantage be consulted, still, however,
the LAW exhibits in o^e particular a tender-
ness towards him, by enabling him to "pursue
his own advantage, which he acts contrary
to only from the vice or folly of his dis-
position. In withholding his property from
him, moreover, there is one particular ad-
vantage: for the dissipation of property
bv extravagance chiefly consists in making
idle and unnecessary donations; and as his
making these must depend upon the property
being in his hands, th<»re is therefore an
evident advantage in detaining it from him.
Mav he imno.W hv one maf>\ strafe and
removed bv another. — IF a magistrate lay an
inhibition upon a prodigal, and the matter
be referred to another magistrate, and he
annul the inhibition, and leave the prodigal
at full liberty, it is lawful ;for the inhibition
imposed by the former magistrate is merely
an opinion fFitwa], not a decree, since to a
judical decree a plaintiff and a defendant
are requisite, and those do not exist in the
present instance. Besides, if the act of the
magistrate, in thus imposing an inhibition,
BOOK XXXV.-CHAP.— II.]
INHIBITION
527
be considered as a decree, there is a diffe-
rence concerning its being actually such, as
Haneefa is not of this opinion. It is, how-
ever, incumbent upon the second magistrate,
in this instance, to maintain the virtue of
the sentence [of inhibition], in order that it
may continue in force : — and accordingly, if
the prodigal perform any act after inhibition,
and the act in question be referred to the magis-
trate who imposed the inhibition (or to any
other), and this magistrate issue a decree an-
nulling such act, and again the matter be
referred to another magistrate, he is bound
to uphold and adhere to the sentence of the
first magistrate, and not to annul it ; for as
the first or other magistrate, upon the matter
being referred to them, had confirmed and
subscribed to the sentence of inhibition, it
cannot afterwards be reversed.
The properly of a prodigal youth must be
withheld from him until he attain twenty-five
years of age.— HANEEFA has delivered it as
his opinion, that if an infant be a prodigal
at the time of his attaining maturity, his
property must not be delivered to him until
he be twenty- live years of age (still, how-
ever, if he should perform any act with
respect to his property prior to that period,
it takes effect, since, according to Haneefa,
prodigals are nor. liable to inhibition) : — but
upon completing his twenty- fifth year, his
property must be delivered to him, although
his discretion should not be ascertained.
The two disciples maintain that his property
must not be delivered to him until such
time as his discretion be fully known ; and
that in the interim all acts performed by
him are invalid ; for as mental imbecility is
the occasion of the obstacle to his power of
action, it follows that the obstacle continues
as long as the occasion oi it remains ; — as in
the case of an infant, who remains subject
to inhibition during the continuance of his
infancy. The argument of Haneefa is that,
withholding to property from the person in
question is intended to operate merely as
instruction, or as a species of discipline ; and
it is most probable that a person, after attain-
ing the age mentioned, will not be disposed
to receive instruction, since it frequently
happens, that a man arrived at those years
is a grandfather, his son having a son born
to him : hence in withholding his property
there is no advantage whatever, since the
view in withholding it is to make him sub-
mit to instruction, which upon his attaining
the age mentioned can no longer be answered;
— and it is therefore indispensable that his
property be delivered to him. Besides, the
reason for withholding his property from the
person in question after he has attained
maturity, is in consideration of the vestiges
or remaining impressions of infancy ;— and
as these continue only in the beginning of
maturity, and are terminated by time, it
follows that upon a time passing sufficient
for this purpose, his property must be deli-
vered to him ; — whence Haneefa maintains
that if an infant be discrent at the time of
his majority, and afterwards become pro-
digal, still his property must be delivered to
him, since the prodigality, in this instance,
cannot be regarded as a vestige of infancy.
It is to be observed that as according to
the tenets of the two disciples, an inhibition
upon the prodigal in question is valid, it
follows that a sale concluded by him is of no
effect, in order that the advantage proposed
in the inhibition may be obtained. If, how-
ever, the sale be deemed advisable, the
magistrate must give his assent to it ; be-
cause here the sale possesses all the essentials
of sale, being suspended in its effect merely
for the advantage of the prodigal, and from
a regard to his interest , and as the magis-
trate is appointed his office for the pur-
pose of watching over and consulting the
interest of the individual, it is therefore re-
quisite that he examine whether the sale be
advisable, in the same manner as it is his
duty to investigate into a sale made by an
infant who intends and is acquainted with
the nature of sale.
But a sale concluded by him aftei ma-
turity, and before inhibition, is valid.— If the
prodigal, considered in the preceding ex-
ample, conclude a sale before any inhibition
has been laid upon him by the magistrate
such sale is valid, according to Aboo Yoosaf,
since (agreably to his tenets) to render the
acts of the prodigal invalid, it is requisite
that the magistrate lay an inhibition upon
him, in order that inhibition may be fully
established. According to Mohammed, on the
contrary, the sale in question is unlawful,
since (agreeably to his tenets) the prodigal
is in fact under inhibition after majority,
as the cause of inhibition, namely prodi-
gality, stands in the place of infancy. The
same difference of opinion obtains concern-
ing an infant who if discreet at the time of
attaining majority and afterwards becomes
prodigal.
And he may grant manumission. — IP the
prodigal in question emancipate his slave, it
is valid and effectual, and the slave becomes
free, according to the two disciples ; whereas
according to Shafei it is not effectual. In
short, it is a rule with the two disciples that
every act liable to be affected by jesting is
also liable to be affected by inhibition, as
(on the contrary) any act not affected by
jesting is not affected by inhibition ; for a
prodigal is, in effect, a jaster, inasmuch as
the words of a jester, spoken to an unwise or
absurd effect, proceed from mere passion or
waywardness, not from a want of under-
standing, and the same also of a prodigal ;
and as manumission is one of those things
not affected by jesting, but valid even when
spoken in jest, so in the same manner manu-
mission pronounced but a prodigal is valid.
With Shafei, on the contrary, it is a rule
that inhibition in consequence of prodi-
gality is in effect the same as inhibition in
consequence of servitude (whence it is that
after inhibition in consequence of prodi-
gality no act whatever of the prodigal is valid
528
INHIBITION
[VOL. III.
except divorce, which is effectual in the
same manner as divorce pronounced by a
slave) ; and as manumission by a slave is
invalid, so in the same manner is manumis-
sion by a prodigal. It is to be observed that
as, according to the two discipies, a manu-
mission pronounced by the prodigal is valid,
the slave therefore owes to his master (the
prodigal) emancipatory labour the amount
of his whole value ; because inhibition is
laid upon the master with a view to his inte-
rest and advantage ,* and as the preservation
of his interest by a rejection of the manu-
mission itself is impossible it must therefore
be rejected so far as to subject the slave to
emancipatory labour for his full value ; in
the same manner as holds in the case of
inhibition with respect to a dying person
for if a dying person emancipate his slave,
he [the slave] must perform emancipatory
labour on behalf of the creditors, where the
person was involved in debt : or on behalf of
the heirs, for two thirds of his value, where
he died free from debt. It is elsewhere
recorded, from Mohammed, that emancipa-
tory labour is not incumbent upon the slave
thus emancipated by his master, being a
prodigal ; for, if it were due from him, it
could only be so on behalf of the emanci-
pator ; and the LAW does not authorize the
obligation of emancipatory labour on behalf
of the emancipator, but of others.
Or Tadbeer. — IF the prodigal in question
constitute his slave a Modabbir, it is lawful ;
because Tadbeer gives a title to manumis-
sion : and as actual manumission, proceed-
ing from a prodigal, is valid, that which
merely entitles to it is certainly valid. —
Emancipatory labour, however, is not in-
cumbent upon the Moodabbir during the
prodigal's life, since he still continue his
property. But if the prodigal die, without
discretion having been ascertained in him,
the Modabbir is in that case to perform
emancipatory labour [to the prodigal's heirs
or creditors, as the case may be], for the
value he bore as a Modabbir : because he
becomes free upon his master's decease, at
which time he is a Modabbir, and the case is
therefore the same as if the master had first
constituted him a Modabbir, and then eman-
cipated him.
Or claim a child born if his female slave.
— IF the prodigal's female slave bring forth
a child and he claim it, the parentage is
established in him, and the child is free, and
the mother becomes his Am- Wai id ; for as
the prodigal has occasion to make the claim
in question, with a view to posterity, he is
therefore accounted a discreet person with
respect to the claim offspring advanced
by him.
Or create his female slave Am- Wai id,
independent of such claim. — IF the pro-
digal's female slave be not in possession of
any child, and the prodigal avow her to be
his Am-Walid, tht accordingly becomes his
Am-Walid, to this effect that he has it not
in his power to sell her. If, however, the
prodigal die, she must perform emanci-
patory labour [to his heirs or creditor] for
her whole value ; because his avowal of her
being Am-Walid is the same as his acknow-
ledgment of her being free, since the child,
which would be an evidence of her freedom,
does not exist in this case ; and as, if he had
declared her to be free, she would owe eman-
cipatory labour, so likewise in the present
instance. It is otherwise, in the example
before stated (whore the child is supposed to
be existing), since in that case an evidence
exists of the slave being free. Analogous to
this example is the instance of a dying per-
son laying claim to a child born of his female
slave ; for in that case also the same rules
prevail.
He may also marry. — IF the prodigal here
treated of marry any woman, such marriage
is legal and valid ; because jesting has no
effect in materimony ; and also, becaus* mar-
riage is one of his original indispensable
wants If; also, he specify any dower, it is
valid to the amount of the woman's proper
dower, as that is one of the pertinents of
marriage ; hut any thing beyond the proper
dower is null, since for that there is no occa-
sion, it being binding only in consequence
of specification, which in this instance is no
way advantageous to the prodigal : — the ex-
cess, therefore, is invalid, in the same manner
as where person affected with a mortal
disease marries, and specifies a dower greater
than the proper dower. If, also, he divorce
his wife before consumrration an half dower
is due to the woman from his property, as
his specification of a dower is valid to the
amount of the proper dower. In the same
manner also, if he marry four wives, or a
new wife every day, it is valid, for the
reasons above specified.
Out of his property is paid Zakat ; and
also maintenance to his parents, children,
&c. — ZAKAT is levied upon the property of
the prodigal in question, as Zakat is incum-
bent upon him In the same manner also,
substance is provided to his parents and
children, his wife or wives, and all relations
who have a claim upon him for main-
tenance ; because the preservation of his
wife and children is among his essential
wants, and maintenance is due to his rela-
tions by right of affinity ; and no person's
right is annulled by his prodigality. It is
to be observed that it is the Kazee's duty to
give the amount or proportion of Zakat into
the prodigal's hands, in order to his ex-
pending it upon the proper objects of Zakat ;
for as Zakat is a matter of piety, intention
is therefore requisite in the payment of it.
The Kazee must, however, depute one of
his Ameens to see that the Zakat be applied
to its proper objects :— -and in the case of
maintenance to relations, he must pay the
necessary sum into the Ameen's hands, that
he may distribute the same among those
entitled to maintenance ; for as this duty is
not a matter of piety, the intention of the
donor is not requisite in the fulfilment of it.
BOOK XXXV.— CHAP II 1
INHIBITION
529
U is otherwise where the prodigal swears, or
makes a votive engagement, or pronounces a
Zihar up-m his wife*; for in these cases he
does not forfeit any prop?rty, but has only
to perfor-n an expiation for his oath, vow, or
Zihir, by fasting, this expiation beinp in-
curred by his own act; and therefore if his
performance of expiation by a payment of
property were required, he would be allowed
himself to expend his property to the degree
n?cessary ;— but it is not so where any thing
is due from him not incurred by his own act,
such as Zakat, and so forth.
He cannot be prevented from performing
pilgrimage.— IF the prodigal be desirous of
performing the ordained pilgrimage, he must
not be prevented, since this is a matter
rendered incumbent upon him by a com-
mandment of GOD, iniependent of an act
oil his part. The Kazee must not, hnwever,
entrust to him the sum requisite for his
travelling expenses, but must lodge it in
the hands of some trusty person among the
pilgrims, to provide him a maintenance out
of it upon the journey ; for otherwise he
would throw it away, or expend it on some-
thing not relating to pilgrimage. — In the
same manner iJso, if the prodigal be desirous
of performing the Amrit,* he must not be
prevented ; for as concerning the obligation
of that there is a difference of opinion,
caution dictates that no obstruction be of-
fered to the observance of it.— fn the same
manner also, if he be desirous of perfoming
a Kiran.f he must not be prevented since
by Kiran is understood the perfomance of j
Amrit and pilgrimage! in one journey ; and I
as he is not prevented from performing those I
separately, it follows that he is not to be
prevented from performing the whole in one
journey.
His bequests (to pious purposes) hold good
— IF the prodigal fall sick, and make a
variety of bequests to pious and charitable
purposes, they hold good to the amount of a
third of his whole property ; for rendering
them valid is advantageous to him, since
when the bequests take effect he has no
longer any occasion for the property ; and
those bequests are used as a mean either of
•This is also pronounced Omara. It
applies to certain ceremonies used by the
pilgrims at Mecca, namely, compassing the
Kaba, or temple, seven times, and running
between Siffa Mirwa, which must be per-
formed before the visitation to the temple :
but concerning the necessity of those obser-
vances there is a difference of opinion among
the Mussulman doctors
fKiran signifies performing the cere-
mrnies of pilgrimage in company with
others.
I At the Amrit is not regarded as an
essential part of pilgrimage, that and the
visitation to the temple (properly termed the
pilgrimage) are considered under different
heads.
manifesting the testator's gratitude to GOD,
or of acquiring merit in his sight.
There is no inhibition upon a Fasik. —
OUR doctors are of opi ion that no inhibi-
tion is to be imposed on a reprobate [Fasik]
with resp »ct to his property, provided he be
endowed with discretion ; — and original or
supervenient depravity of manners are alike
as far as regirds this rule. Shafei main-
tains ihat inhibition is to be imposed upon a
person of this description as a punishment,
I in the same m inner as on a pro ligal ; whence
; it is that (according to him) an unjust person
: is incapable of exercising jurisdiction or
i bearing evidence. — The arguments of our
; doctors upon thii point are twofold. FIRST
\ the word of GOD, in the KORAN, says,
'• WHENEVER YE PERCEIVE THEM TO BE
DISCKEPf, DELIVER TO THEM THEIR PRO-
PERTY ;" — -and the reprobate, in the case in
question, is supposed to be discreet with
regard to the expenditure of his property.
SECONDLY, a reprobate (according to our
doctors) is competent to exercise authority,
as being a Mu$*ulm.n, and is consequently
empowered to act with regard to his own
property.
People are bable to inhibition from care~
lessness in their affairs. —THE two disciples
allege that the Kazee is at liberty to lay an
inhibition upon per*-.) is on account of care-
lessness or neglect in their concerns, although
they be not orodigi1. Their argumznt is
that an inhibition imposed upon a oerson of
this description is advantageous to him.
Shafei concurs with the t\vo disciples in this
opinion.
Sect on.
Of the Time of attaining Puberty
Tne puberty of a boy is established by cir-
cumstances, or upm his attaining eighteen
years of age ;— <.md that of a girlt by cir-
cumstances, or upon her attaining seventeen
years of age. — THE pubrrty of a boy is
established by his becoming subject to no-
turnal emission, his impregnating a woman,
or emitting in the act of coition ; and if none
of these be known to exist, his puberty is
not established, until he have completed
his eighteenth year. — The puberty of a girl
is established by menstruation, nocturnal
emission, or pregnancy ; and if none of these
have taken pUce, her puberty is established
on the completion of her seventeenth year
What is h?re advanced is according to
tianeefa. The two disciples maintain that
upon either a boy or girl completing the
fifteenth year they are to b* declared adult ;
there is also one report of Haneefa to the
same effect ; and Shafei concurs in (his
opinion. — It is also reported, from Haneefa,
that to establish the puberty of a boy nine-
teen years are required. — Some, however ;
observe that by this is to be understood
•Puberty and majority are, in the Mussul-
man law, otve and the same.
530
INHIBITION
[VOL ill.
merely the completion of eighteen years and
the commencement of the nineteenth ; and
consequently, that this report perfectly
accords with the other. Some, again, affirm
that this is not the sense in which the last
report is to be received ; for there have been
other opinions reported from Ha nee fa on this
point, different from that first recited as
above ; because some authorities expressly
say that (according to him) the puberty of a
boy is not counted by years until he shall
have completed his nineteenth year. It is
to be observed that the earliest period of
puberty, with respect to a hoy, is twelve
years, and with respect to a girl, nine years.
Their declaration of their own pubertv, at
a probable season, mast be credi ted —WHEN
a boy or girl approaches the age of puberty,
and they declare themselves adult, their
declaration must be credited, ami they
become .subject to «*li (he rule-* .tMtrimg
adults; because the attainment of pubeiiy
is a matter which can only be ascertained by
their testimony ; and consequently, \vhen
they notify it. their notification must be
credited, in the same manner as the declara-
tion of a woman with respect to her courses.
CHAPTER III.
OF INHIBITION ON ACCOUNT OF DEBT.
A debtor is not liable to inhibition —
HANEEFA is of opinion that no person can be
laid under inhibition on account of debt. If,
therefore, a debt be proved against any per-
son, and the creditors require the Kazee to
imprison him and lay him under inhibition,
still the Kazee must not do the latter ; be-
cause as laying him under inhibition is a
destruction or suspension his competency,
it is not therefore allowable for the remedy
or removal of a particular injury.
Nor can his property be made the subject
of any transaction. — IF, also, the debtor be
possessed of property, still the Kazee is not
at liberty to perform any act with it.* a?
this would be a species of inhibition, and his
thus acting with the property would, more-
over, be an act of conversion without the
assent of the proprietor, and consequently
null, according to both the KORAN and the
Sonna.
But he may be imprisoned. — IT is, how-
ever, requisite that the magistrate imprison
the debtor, and hold him in durance, until
such time as he sell his property for the
discharge of his debts, and the rendering of
justice. The two disciples say, that if the
creditors require the Kazee to impose an in-
hibition upon their insolvent debtor, it is
requisite that he impose an inhibition upon
him accordingly, and prevent him from
*That is, to purchase, or sell with it, &c.
selling, or transacting, or making acknow-
ledgments, in order that his creditors may
not sustain an injury ; because restriction is
imposed upon a prodigal only out of a regard
for his interest ; and in imposing the same
upon a debtor a regard is manifested to the
interest of his creditors ; for if an inhibition
upon him were not authorized, it is not im-
probable that he might act collusively, or,
in other words, might declare that "the
property in his possession belong to a par-
ticular person," notwithstanding it actually
belongs to himself and not to the other, his
declaration being made merely with a view
that the property might not go to his credi-
tors,— whence the sight of the creditors
would be defeated. — (It is to be remarked,
tbat what the two disciples say of an inhibi-
tion being laid upon the debtor with respect to
sale, applies only to the sale of anything for
a price short of its real value ; as the right of
the creditors is not injured by his selling an
article for an adequate price. Besides, the
prohibition of the sale exists only on account
of the neditors right; and as their right is
not annulled by such a sale, he need not be
prohibited from concluding it) — It is also
lawful (according to the two disciples) for the
Kazee to sell the debtor's property, where he
himself declines so doing, and to divide the
price of it among the creditors in proportion
to their respective claims ; because it is
incumbent upon the debtor to s"H his pro-
perty for the payment of his debt ; and
consequently, upon his declining so to do,
the Kazee is his substitute for that purpose,
in the same manner as a Kazee is the sub-
stitute of the husband for pronouncing a
separation between him and his wife, where
he is an eunuch, or impotent. The argument
adduced by our doctors on behalf of Haneefa,
and in reply to the two disciples, is that
collusion is a matter of uncertanitv. And
with respect to sale, it is not to be par-
ticularly appointed for the payment of debts,
since it is in the debtor's power to discharge
what he owes by various other means, such
as borrowing or begging ; whence it is not
lawful for the Kazee to appoint a sale. It is
otherwise in the case of a husband who is
an eunuch or impotent, as in tbat instance
separation is the appointed remedv. The
debtor, moreover, is not impisoned with a
view to sale (as alleged by the two disciples),
but with a view to the payment of his debts,
and to constrain him to adopt some method
for the discharge of them — Besides, if it
were lawful for the Kazee to set up the
debtoi's property to sale, he ( could not law-
fully have recourse to imprisonment, since
that would be injurious both to the debtor
and the creditors, as being vexatious to tbe
former, and creaiine a delay in the discharge
of the latter's right, whence the imprisonment
would not be sanctioned by the LAW ; —
whereas it is in fact strictly lawful.
Ij he be possessed of money, of the same
denomination as his debt, the Kazee may
make payment with it ; or, if the species be
BOOK XXXV.— CHAP. III.]
INHIBITION.
531
different, he may sell it for this purpose. —
IF the debts owing by the debtor in question
consist of dirms, and the property possessed
by the debtor also consist of dirms, the Kazee
may in this case discharge the demands upon
him without his consent. This is a point in
which all our doctors coincide: for as the
creditor is here at liberty to take his right
without the debtor's consent, it follows that
the Kazee is at liberty to assist him in the
recovery of it. If, on the contrary, the debt
consist of dirms: and the property in the
debtor's hands be deenars, or vice versa, the
Kazee is in this case empowered to s^ll such
procerty for payment of the debt. This is
according to Haneefa, and proceeds upon
a favourable construction — Analogy would
suggest that the Kazee is not at liberty to
sell the propertv in this instance, in the
same manner as he is not at liberty to sell
the debtor's household goods, or other effects.
The reason, however, for a more favourable
construction of the LAW, in this parti cuiar, is
that dirms and deenars are both alike with
regard to their constituting price and repre-
senting property, as, on the other hand, they
differ from each other with regard to appear-
ance: hence, because of their similarity in
the one shape, rhe Kazee is empowered to act
with respect to them; and because of their
dissimilarity in the other shape, the creditor
is not at liberty to take them without the
debtor's consent. It is otherwise with respect
to goods and effects, since those are objects
of desire and use, both in appearance and
reality, whereas dirms and deenars are mereby
a means of obtaining such objects.
Rule in selling off a debtor's property:-— IK
discharging debts, that part of the debtor's
property which consists of money* is first
disposed of. then hvs effects and household
furniture; and last of all his houses and
lands; for in this mode of adjustment a
regard is paid to the ease and convenience of
both parties. The debtor's clothes, also,
must be sold, excepting only one suit, which
is sufficient to answer necessity. Some, how-
ever, say that two suits must be left with the
debtor, one suit being in use whilst the other
is washing.
Acknowledgments by a debtor are not
binding on Mm until his debts be paid. — IF a
debtor make an acknowledgment whilst under
inhibition, tsuch acknowledgment is not bind-
ing upon him until he shall have satisfied
his creditors; for as their right was first con-
nected with his property, he is therefore not
at liberty to annul »t by an acknowledgment
in behalf of any other person. It would be
otherwise supposing the debtor to destroy a
* Arab. Nakd, which literally signifies
cash, but in this place comprehends all sorts
of property which come under the denomi-
nation of Mai, as opposed to Rakht and
Malta [goods and effects].
f Proceeding on the idea of the two disci-
ples, that "he may be put under inhibition."
person's property; for in that case* he would
be responsible; and the owner of tfce prop rty
so destoryed would come in upon an equal
footing with the other creditors, as the de-
struction of property is a sensible and per*
ceptible circumstance, and therefore cannot
possibly be set aside. If, also, the debtor
acquire or obtain property after inhibition,
his acknowledgment, as above, takes effect
with respect to such property ; because the
right of the former creditors is net connected
with this property, it not existing at the
time of inhibition.
A debtor (beinq p?or) gets a subsistence out
of his property: and also his wives, children,
and uterine kindred. — A SUBSISTENCE must
be paid to the debtor out of his prop3rty
(provided he be in poverty), and also to his
wives, infant children, and uterine kindred;
because his indispensable wants precede the
right of his creditors; and also because; as
the maintenance of his wife, &c,, is their
right, it cannot be annulled by inhibition,
whence it is that if he were to marry, his
wife comes in upon an equal foot ng with his
other creditors, to the amount of her proper
dower.
A debtor, on pleading poverty, is in-
prisoned — IF the debtor be not possessed of
any known property, and th-s creditors re-
quire the Kazee to imprison him, he at the
same time de:laring tnat "he has nothing,"
the Kazee must in this case imprison him on
account of such debts as he may have in-
curred by contracts such as a dower, or an
obligation undertaken by his becoming bail
for property.— (Those cases have been already
discussed at large in treating of the duties
of the Kazee, and therefore a repetition in-
this place is unnecessary.)
General rules with respect to him whilst in
prison. — IF the debtor who pleads poverty,
as above, fall sick in prison, he is never-
theless continued in durance, provided he
have an attendant to wait upon him and ad-
minister medicine to him: — but if he have
no such attendant he must in that case be
liberated from confinement, lest, he perish.
If he be an artisan, he must be prevented
from following his trade and must not be
suffered to do any work, in order that, from
distress, he may be compelled to pay his
debts.*— This is approved. If he be possessed
of a female slave, under such circumstances
as that he may co'iabit with her,f he must
not be prevented from so doing; since carna
connexion is required to satisfy a man's
appetite in the same manner as eating or
drinking; and he therefore must not be pre-
• This, at first sight, does not appear con
sistent with the tenderness exhibited towarde
a debtor in other instances. It is to be
recollected, however, that the debtor in
question is imprisoned on suspicion of his
being possessed of property, which he denies.
t That is, under such circumstances aa
make her lawful to him.
532
INHIBITION
[VOL III.
vented from indulging himself in this, any
more than from eating or drinking
After liberating, the creditors are at liberty
to pursue him. — UPON his being liberated
from prison,* the creditors must not be ob-
structed in enforcing their claims against him,
but are at liberty to pursue him f They
must not, however, prevent him from trans-
acting business or travelling. The reason of
this is that the Prophet has said, " the prcv
prietor of a right has a hand and a tongue,
meaning, by the hand, the power of pursuing,
and by the tongue, the power of demanding
the right. The creditors are also at liberty,
in this case, to take the excess]: of the
debtor's earnings, and divide it amjng them-
selves in proportion to their respective claims;
for as their right is equal with regard to
power, attention must be paid equally to that
of each. The two disciples maintain that
upon the Kazee declaring the debtor's poverty
[insolvency] the creditors must be obstructed
(that is, must be prevented from pursuing j
the debtor), unless they adduce evidence to j
prove his being possessed of property; for j
as (according to them) the Kazee' s decree of
poverty on behalf of the debtors is vilid, his ;
inability to discharge his debts is there by j
fully established, and this being the case, he i
is entitled to an indulgence until he may j
acquire property, and thereby become sol- ,
vent. According -o Haneefa, on the con- j
trary, the Kazee's decree of poverty on i
behalf of the debtor is not valid ; because j
property comes in the morning and goes in .
the evening. Besides, as witnesses possess .
a knowledge of property only with regard !
to appearance, evidence therefore, although .
it be proof sufficient to release the debtor '
from prison, is yet not proof sufficient to j
annul the right of the creditors, that is,
their title to pursue the debtor. With re-
spect to the exception stated in relating^ the ;
opinion of the two disciplea, that " the <
creditors must not be obstructed unless they j
adduce evidence to prove the debtor's being j
possessed of property," it is an argument
that evidence of wealth has a preference ,
over evidence of poverty : because the for- !
mer tends to prove new matter, since the
possession or acquisition of wealth is super-
venient, whereas indigence is original. With
respect, on the other hand, to what has been
said, in speaking of the right of pursuing,
&c., that creditors " must not prevent the |
i
•Inconsequence of the Kazee passing a
decree of insolvency in his behalf.
t Arab. Molavimat, meaning a continual
personal attendance upon or watch over him.
This is a customary mode of proceeding, with
respect to debtors, among all Mussulmans,
and is termed, in Persia and Hindostan,
Nazr-band; which may be rendered holding
in sight.
} Meaning any balance which may remain
after the maintenance of tbe debtor and his
family.
debtor from transaction business; or travel-
ling," it is an argument that the creditor is
at liberty to pursue the debtor by accompany-
ing him wherever he goes, but not by fixing
him in any particular place; for this would
be imprisonment. If, also, the debtor go
into his house upon any business, the credi-
tor is not at liberty to enter with him, but
must stand at the door until he come forth;
! because men stand in need of some private
j and secluded place.
I And have an option, if he prefer continuing
\ in prison — IF a debtor be desirous of con-
tinuing in prison, and his creditor be rather
desirous of holding him in pursuit, regard is
paid to the ootion of the creditor, as that is
the most effectual towards obtaining th^
desired end since he, it is to be supposed,
will adopt such measures as may distress the
debtor, ami thus compel him to do justice. If,
however, the Kazee perceive that the debtor
is subjected to any particular injury (from
the creditor in the exercise of the right of
pursuing, as, for instance, not permitting
him to enter his own house), in this case he
[the Kazee] must imprison him [the debtor]
in order to repel such injury.
A mala creditor cannot pursue his female
debtor.— IF the debtor be a woman, and the
creditor a man, the creditor must not be suf-
fered to pursue her, since if this were ad-
mitted, it would induce the retirement of a
man with a strange woman. The creditor,
however, is at liberty to depute a confidential
female to attend the debtor in the exercise of
his right.
Case of a purchased article being in the
debtor's hands upon his failure. — IF a debtor
become poor* having at the same time in
his hands effects purchased from a particular
person, this person, in recovering the price
of such effects, is upon an equal footing with
the other creditors. Shafei maintains that
in this case it is the duty of the Kazee to
lay an inhibition upon the purchaser, pro-
vided the seller require him so to do; and
then that the seller has it at his option to
dissolve the sale; for the purchaser has
become incapable of paying the price; and
this occasions a right of dissolution, in the
same manner as the inability of the seller
to deliver the article sold. The ground of
this is that sale is a contract of exchange,
which requires perfect equality : — in the
same manner as a contract of Sillim; in
other words, if the person who receives the
advance, in a contract of Sillim, be incapable
of delivering the article advanced for (from
its not being procurable, for instance), the
advancer his it at his option eithpr to wait
until the other may procure the article, or
to dissolve the contract and take back
what he had advanced; and so likewise in
the present instance. The argument of our
doctors is that poverty occasions an inability
* This, in effect, signifies
failing or becoming bankrupt.
the same as
BOOK XXXVII.]
USURPATION
553
to make a specific delivery.* In the case
in question, however, the purchaser is not
under any obligation to make a specific
delivery, but merely to make a delivery of
the price [of the article purchased], which
is a debt upon him. Hence the seller .is not
endowed with a right of dissolution in con-
st quence of the purchaser's inability to
make such specific delivery.
OBJECTION.— If debt in general be obliga-
tory upon the purchaser, and not a particular
substance, it would follow that the purchaser
is not discharged of the demand by his giving
money, and the seller taking possession of
it, since substance is different from debt.
REPLY. — By the seller taking possession
of the particular money, a substitution is
established between this substance and the
debt owing by the purchaser ; and as this is
the original object in paying debts, regard
must therefore be had to it, unless that be
impossible, which however is not the case in
the example here considered. — It is other-
wise in a contract of Sillim ; for there no
regard can be paid to substitution, as it
cannot there be admitted ;— whence it is
that, in contracts of Sillim, the sustance,
or particular sum taken possession of, is
accounted to be, in effect, the thing for
which the advance is made, and which re-
mains a debt upon the person who receives
such sum.
BOOK XXVI.
OF MAZOONS, OR LICENSED SLAVES.
[This has been omitted for the same reason
as Book V.]
BOOK XXXVII.
OF GHAZB, OR USURPATION.
Definition of the term. — GHAZB, in its
literal sense, means the forcibly taking a
thing from another. In the language of the
LAW it signifies the taking of the property
of another, which is valuable and sacred,
without the consent of the proprietor, in
such a manner as to destroy the proprietor's
possession of it.
Acts by which usurpation is established. —
WHENCE it is that usurpation is established
by exacting service from the slave of another,
or by putting a burden upon the quadruped
of another ; but not by sitting upon the
*Arab. Ain, meaning (in this place) the
particular sum of money owing to the seller,
it is proper here to observe that the Arabian
lawyers make an essential distinction be-
tween debt and substance, the former being
considered as merely ideal, until it be rea-
lized.
carpet of another ; because by the use of
the slave of another, and by loading the
quadruped of another, the possession of the
proprietor is destroyed ; whereas by sitting
upon the carpet of another the possession of
the proprietor is not destroyed.
A wilful usurper is an offender. — IT is to
be observed that if any person knowingly
and wilfully usurp the property of another,
he is held in law to be an offender, and be-
comes responsible for a compensation. If
on the contrary, he should not have made
the usurpation knowingly and wilfully (as
where a person destroys property on the
supposition of its belonging to himself, and
it afterwards proves the right of another),
he is in that case also liable for a compen-
sation, because a compensation is the right
of man ; but he is not an offender, as his
erroneous offence is cancelled.
The usurper of an article of the class of
similars is responsible for a simij or, if it be
destroyed in his possession. — IF a person
usurp any thing of the class of a similars,
such as articles estimable by weight, or by
measurement of capacity, and of which the
particulars are nearly equal, and it be after-
wards destroyed in his possession, he is in
that case responsible to the proprietor for a
similar ; because GOD has so ordained in the
KORAN ; and also, because the giving of a
similar in return is the justest method, since
a regard is thereby shown both to the genus
and the substance, and consequently the
injury to the proprietor is thereby removed
in the most eligible manner. If, however,
the usurper be not able to give a similar,
because of no similar being to be found, he
in that case becomes responsible for the value
which the article bears at the time of the
suit or contention. This is according to
Haneefa. Aboo Yoosaf maintains that he
becomes responsible fot the value the thing
bore upon the day of usurpation. Mohammed,
on the other hand, has said that he becomes
responsible for the value it bore upon the
day when the similar was not to be found or
procured. The reasoning of Aboo Yoosaf is,
that whenever a similar became unattain-
able, the thing then became the same as if
it was not of the class of similars. Hence
it is necessary to have regard to the value
on the day of usurpation ; because usurpa-
tion being the cause which induces respon-
sibility, it follows that the value on the day
of the establishment of the cause ought to
be regarded. The reasoning of Mohammed
is, that the usurper is responsible for a simi-
lar ; and that, as this responsibility is after-
wards referred to the value, for no other
reason than that a similar is not to be found,
it follows that regard is to be had to the
value the article bore on that day.* The
• Arab Yawm-al-Inkatta— Litera/ly, the
day of terminatian ; meaning, the day on
which the power of returning a compensa-
tion by a similar terminated.
334
USURPATION.
[VoL.lH
reasoning of Ha nee fa is, that the respon-
sibility is not referred to the value invne-
diately upon the extinction of a similar,
since the proprietor may, if he please, delay
until a similar shall be found : but that the
responsibility is referred to the valus merely
on account of the decree of the Kizee ; and
that therefore the value on the day of con-
tention (which is the day of the decree of
the Kazee) ought to be regarded. It is other-
wise with respect to a thing which is not of
the class of similars ; because in such case
the value is demanded fro.n the usurper in
virtue of the original cause, n^nely, the
usurpation ; an J therefore thi value it bore
on the day of usurpation is to be r^arded
If the article be of the Weiss of ruri-si-ni-
lars, he is responsible far the value. — IF a
person usurp any article of the class of non-
similars (such as where the particulars are
different, like household goods), he U in that
case responsible for the value the article bore
on the day of usurpation ; for as ic is here
impossible to preserve the right of the pro-
prietor with respect to quality, it is there-
fore necessary to preserve that right with
respect to substance only, in order that the
injury to him may be d^ne away in the
utmost possible degree. (It is to be observed,
that if a person usurp wheat in which there
is a mixture of barley, he becomes than re-
sponsible for the value, as that is of the class
of non-similars )
The actual article usurped must be restored
to the proprietor, if it be extant. — IT is in-
combent upon an usurper to restore the
idential article usurped to the proprietor of
it provided it be extant in his possession ;
because the Prophet has said, " It is incum-
bent upon a person who takes a thing from
another to restore it to him ;" and also, " It
is not lawful for a person to take th3 goods
of his brother in any manner" (that is,
neither in a familiar easy way, nor by vio-
lence and contention) ; "and therefore, if a
person do take any thing, he must restore it
to its owner :" — and also, because the pro-
prietor's seisin or possession of his property
be this shown right, which the usurper has
destroyed, it is therefore incumbent on the
usurper to restore the right the actual thing
that is to say, to give back that is originally
taken. This, moreover, is what is originally
incumbent, agreeable to the opmon of most
of the learned ; and the giving of the value
to the proprietor is merely a cause of release i
from strife, inasmuch as it is defective ; •
whereas the perfection lies in the restoration
of the actual thing. Some of the learned,
whoever, have said that the original obliga
tion is that of Riving the value ; and that
the restitution of the actual article is merely
a cause of release. A result of this dis-
agreement appears in the different deduc-
tions arising from it ; as where, for instance
the proprietor exempts ths us Jpsr from the
value, at a time when the actual thing is ex-
tant in his possession ; in which case, accord -
ing to the latter opinion (above mentioned,
of some of the learned), the exejaiptip i is
valid ; whence if the article be destroyed in
the possession of the usurper subsequent to
the exemption, he d^s not (according to
their tenets) becotie responsible fora com-
pensation : whereas, in the opinion of most
of the learned, he becomes responsible.
In the place tuhere it wis usurped. — IT is
to be observed that, according to the opinion
of most of the learned, it is incumbent upon
the usurper to restore the thin? to the pro-
prietor in tha place where he hid usurped it,
because the value of things varies in dif-
ferent places.
And failing of this, the usurper must he
imprisoned until he mike sitisfattfan. — IP
the usurper plead thu h~ has lost the
article, the magistrate must cause htm to be
imprisoned for a length of time sufficient to
ascertain whether or not he has the thing in
his possession, and mint then enjoin him to
give the vakis of it. The reason of this is,
because the original obligation is the restora-
tion of the actual thing, and the circum-
stance of the loss of it being merely an
accident, is not credited, as it is contradicted
by appearances ; in the same minner as
whers a person who ow^s the price of goods
pleads poverty, in which case he must be
confined until the truth of his plea be ascer-
tained.— Whenever, therefore, it becomes
known that the article usurped his really
been lost in the possession of the usurper,
the obligation to restore the actual thing is
annulled, an 1 a compensation (that is, the
value of the thing) becomes obliqat ^ry.
Usurpation (so as to occasion responsibility)
cannot take place but in imveahlis property. —
IT is further to be observed, that usurpation
(so as to occasion responsibility N/ — takes place
only with respsct to moveablts. such as a
garment, or the like : for the destruction of
the proprietor's possession cannot otherwise
be effected than by removal. If, therefore,
a person should u^urp land, and the land
be destroyed in his possession (that is, be
rendered useless by an inundation, or the
like), the usurper is not responsible for it.
This is the opinion of Haneefa and Aboo
Yoosif M >hamnned alleges that the usurper
is resp miible for the 1-ind ; and this is the
first >pinion of Aboo Y o af, wi\i:h has like-
wise Iven adopted by Shaki. The argu-
ments in favour of th^ latter opinion are,
that the possession of the usurper is estab-
lished wi*h respect to thi laivl usurped,
which occasions a detraction of the pro-
prietor's possession, since it is impossible
thit 010 thin; cmb3 in the possession of
two people at oni anJ the sams time.—
Usurp itipa, therefore, which means the
annihilition of the proprietor's possession,
and the establish nant of the usurpers,
exists in the cise of land : hence land is i"i
this respect the same as moveable property
and therefore the usurper of it is responsible
for it ; in the same manner as a denying
trustee ; that is, if a person deposit land in
the hands of another, and that other after-
XXXVII.]
USURPATION
5*5
wards deny the deposit, in that case he
becomes responsible for the land, and so also
in the case in question. The arguments of
Haneefa and Aboo Yoosaf are, that usurpa-
tion is the establishment of the usurper's
possession by a destruction of that ot the
proprietor, in such a manner that the cause
of the establishment of the possession, and
of the destruction of it, is the action of the
usurper with respect to the thing usurped,
such as the removal of it from one place to
another. Now this is impracticable with
respect to land or houses, because the pro-
prietor's possession of these cannot otherwise
be destroyed than by driving him from them.
But the driving away of the proprietor from
his house (for instance) is not an action of the
usurper with respect to the thing but with
respect to the person of the proprietor, and
therefore amounts to the same as if he were
to remove the proprietor from his cattle. In
the usurpation of moveables, on the con-
trary, the removal is the action of the
usurper operating with respect to the article;
and this is usurpation. With respect to the
case of a trustee who denies the deposit
(adduced by Mohammed as being analogous
to the case in question), it is not admitted to
be such; but allowing that it were, it is
answered that the necessity for a compensa-
tion in that instance a rises from the want of
care which is manifested by the denial of
the trustee.
The usurper of a house is responsible for
the furniture. — AN usurper is responsible,
according to all our doctors, for whatever
he breaks of a house, either by his residence
in it, or by his pulling it down, because that
is wilful destruction, and compensation
for fixed property is incurred by wilful
destruction, — as where, for instance, a person
removes the manure or water from land that
being an act with respect to the substance
of the land.
But if he sell the house, and the pro-
prietor have no witnesses, he is not respon-
sible.— IF a person usurp a house, sell it,
and delver it to the purchaser, and after-
wards acknowledge the usurpation, and the
purchaser deny it ; and there be no wit-
nesses on the part of the proprietor to prove
it, in this case there is a disagreement be-
tween Haneefa and Aboo Yoosaf on one
side, and Mohammed on the other; for, ac-
cording to the two disciples the seller of
the house is not responsible on account of
the sale and delivery of it to the purchaser
(contrary to the opinion of Mohammed) ;
because sale and delivery to the purchaser is
merely an usurpation on the part of the
seller ; and usurpation of moveable property
(according to t^e two disciples) does not in-
duce compensation
A usurper of land is responsible for any
damage occasioned by the cultivation of it. —
IF usurped land be damaged by the cultiva-
tion of it, the usurper must compensate for
the damage, since he has destroyed part of
the land. — He must, moreover, deduct from
the pro luce of the land the amount of his
stock, that is to say, the quantity of the
seed sown, and also the amount he may have
paid for the damage; and if any surplus
should then remain, he must bestow it in
charity.— The compiler of the H«daya re-
marks that this is according to Heneefa and
Mohammed ; but that Aboo Yoosaf has said
that it is not necessary to bestow the surplus
in chanty. Their arguments shall be re-
cited at large hereafter.
The usurper of a moveable is responsible
for the value in case of its destruction. —
WHEN an article of usurped moveable pro-
perty is destroyed in the possession of the
usurper, whether by his act, or by the act of
another, in either case he is responsible for
the value of it: — according to those who
hold that the giving of the value is origi-
nally incumbent, and the restitution of the
actual thing a release, because the release-
ment being here impracticable, the giving
of the value which was originally due is
therefore established ;— and also acrording
to those who hold that the restitution of the
actual thing is originally due and that the
givinsr of the value is merely subordinate
thereto; because the fulfilment of what is
originally due being impracticable, in con-
sequence of the destruction of the actual
thing, the value of it is therefore due.
If he himself render it defective he is
responsible Jor such defect. — IP an usuper
should, with his own hands, render defective
the thins he had usurped, he is in that case
responsible for such deficiency; for as, in
consequence of the usurpation, he is respon-
sible for the thing usurped, in all its parts,
it follows that whenever the restitution of
any part of it becomes impracticable, the
value of that part is due from him.
But not for any depreciation it may have
sustained in his hands. — It is otherwise with
respect to a diminution of the value by
depreciation; since for that the usurper is
not resposible, provided he restore the
thing in the place of usurpation; because a
diminution of the price arise* from the
diminution of desire on the part of the pur-
chaser, and not from the ruin or destruction
of any of the parts of the thing.— It is also
otherwise with respect to things sold which
become defective in the possession of the
seller prior to his delivery of them ; for he
is not in that case under a necessity of
compensation to the purchaser ; because re-
sponsibility for the article of sale is a re-
sponsibility involved in the contract ; and
the subject of the contract is the actual
wares, and not the qualities of them. With
respect to usurpation, on the contrary, that
is an act, and qualities are liable to be com-
pensated for by an act, but not by a contract,
as has been already demonstrat id. The author
of the Hedaya has said that this case alludes
to usurped articles which are not of an in-
creasing nature; but that with respect to
things of an increasing nature, a compensa-
ti:n for the damage must not be taken along
536
USURPATION
[Voi. Ill
that would
with the actual restitution,
necessarily induce usury.
The usurper of a slave, hiring him out to
service, is responsible for any damage he
may sustain, Trust and bestow the wages in
charity. — IF a person usurp a slave and
hire him out to work, and receive his wages,
and the slave be thereby affected in his
value, in that case (upon the principle laid
down in the preceding example) the usuper
must compensate for the damage, and must
bestow the whole of the wages in charity.
The compiler of the Hedaya remarks that
this is according to Haneefa and Mohammed;
but that according to Aboo Yoosaf there is
no necessity for his bestowing the wages in
charity : and that the same disagreement
subsists with respect to the case of a borrower
hiring out the subject borrowed The
reasoning of Aboo Yoosaf is. that the profit
in question has been acquired by the usurper
upon his responsibility with respect to the
subject, and upon his own property : the
former of which, namely responsibility, is
evident : and so likewise his right of pro-
perty ; because whatever is a subject of re-
sponsibility becomes the property of the
usurper, in consequence of his making com-
pensation, by the way of transition. The
reasoning of Haneefa and Mohammed is
that the profit in question has beei acquired
by a cause in which baseness exists, namely,
by an exertion over the propety of another ;
and that such profit ought to be In stowed in
charity ; because the cause (that is, the
exertion over the property of another) is the
trunk, and the profit so acquired is a branch
from it ; and the qualities of the trunk, or
original, communicate with the branches
spring from it; whence a bareness exists
in the profit also, as well as in the original.
with regard to what Aboo Yoosaf alleges,
that "whatever is a subject of responsibility
becomes the property of the usurper. In
consequence of his making compensation, by
the way of transition," it is answered that a
right of property established merely by the
way of transition is a defective right of pro-
perty and therefore baseness is n t removed
by it.
But if the slave be destroyed, the wages
may by given in part of the compensation. —
IF, however, the slave be destroyed in the
possession of the usurper, so as to make him
liable for his complete value, he may in that
case give the wages in payment of the com
pensation, because the baseness which exists
with regard to such wages is only on account
of the right of the proprietor (whence, if
they were paid to the proprietor, it would
be lawful for him to receive and convert
them to his own use) : they may therefore
be paid to him ; and, in consequence of such
payment, the baseness which would other-
wise attach to them is removed. It is
different where the usurper sells the slave,
who is afterwards destroyed in the posses-
sion of the purchaser, and is then proven
to be the right of another, for which the
purchaser pays a compensation, because in
such case it is not lawful for the usurper to
give the wages to the purchaser in payment
of the price, since the baseness which exists
in the wages is not on account of the right
of the purchaser. Still, however, if the
usurper in this case, be not possessed of
any other property than the wages, he may
then lawfuly give that to the purchaser in
return for the price which he had taken
from him, because under these circumstances
the usurper stands in need of it, and he is
therefore permitted to apply it to the answer-
ing of his necessities If, however, ho should
afterwards acquire other property, he must
bestow from it in charity an amount equal to
the wages, provided he war, rich at the time
he made use of the price he received from
the purchaser; but if, on the contrary, he
was at that tune poor, he is not required to
bestow any thins in charity
All monied profits acquired by means oj
usurped money must be bestowed in charity.
—lp a person usurp one thousand dirms,
and with those thousand purchase a female
slave, whom lie afterwards sells for two-
thousand, and then with these two thousand
purchase another female slave, whom he
again sells for three thousand, in that case the
u&urper must bestow in charity the whole of
the profit namely, two thousand dirms This
is according to Haneefa and Mohammed ;
and the principle of it is, that whenever,
either an usurper or a trustee perform any
act with respect to the thing usurped, or the
deposit, and thereby acquire profit, such
profit (according to Haneefa and Mohammed)
is not lawful arid sanctified to them; in
opposition to the opinion of Aboo Yoosaf.
The opinion of Haneefa and Mohammed, in
this particular, with regard to a deposit, is
evident, since the property of it is not re-
ferred to a period antecedent to the act of
the trustee ; for, as the property cannot be
proven from responsibility at that time it
follows that the act of the trustee was not
exerted upon his own property. It is to be
observed, however, that what is here men-
tioned of the opinion of Haneefa and Mo-
hammed being evident with regard to a
deposit, alludes to such deposits only as con-
sist of goods, and not of money ; for if the
deposit consist of money, and the trustee,
at the time of purchasing the female slave
say ''I purchase her with this money"
(pointing to the identical money in deposit),
and he accordingly discharge the price with
that very money, in that case the profit must
be bestowed in charity ; whereas if, on the
contrary, at the time of making the bargain,
he point to the money in deposit, and pay
the price with other money, — or point to
other money, and pay the price with the
deposited money, — or; if he should not point
to any money; but express himself in an
absolute manner, saying "I purchase this
slave for one thousand dirms" (not M for
these thousand dirms") and he pay the
price with the thousand dirms in deposit, —
BOOK XXXVH]
USURPATION
in all these cases the profit acquired is free
and lawful to the trustee. Surh also is the
opinion of Koorokhee : and the reason of it
is. that by pointing to specific dirms at the
tjme of purchasing, the dirms are not thereby
rendered fixed and specific, but that, on the
contrary, it is lawful for the purchaser to
give other dirms than those referred to ;
and that, therefore, in such case, the profit
acquired is not base; excepting when, in t
purchasing the said slave with rhe thousand |
dirms in deposit, he points to these very •
H rms, and pays the price with the same.— i
The Haneefite doctors; on the contrary, allege ;
that the profit is not lawful to the trustee, •
neither before the giving of compensation, ,
nor after it : and this is approved; because'
this law has been recited in an absolute
manzur, both in the Jama Saqheer and the
Jama Kabecr, in treating of Mozanbat
But not profits </ any d'ff'rmt descrip-
tion.— IF a pi-rfcon purchase with one thou-
sand usuiped dn ins a f on". ale slave worth
two thousand, and make a gifi of her to any
p»r.son ; or purchase wheat with the said
thousand, and cat the same ; he is not, under
such circumstances, require*! to bestow any
thing in charity This is a case in which
all are agreed; and the principal of it is
that although the female slave be worth two
thousand dirms, yet she is not of the species
of dirms, so as to occasion usury : for
usury does not take place excepting when ,
the profit is of the same description as the •
principal.
Section.
Of usurped Articles altered by Act** of the \
U sniper i
An alteration wiouqht upon the article
usurped vests the property of it in the
usurp r ; wh-j remains tesponsible *o the
origin^/ owner for the value of it ; and [cannot
lawfully dei ive any advantage fi am it, until
such compensation fv paid — WHENEVER an
article usurped is altered in consequence of '
an act of the usurper, in such a manner that
it loses both its name and its original pur-
pose, it is then separated from the right of
the proprietor, and becomes the property of
the usurper and the usurper becomes re-
sponsible for it : but he is not entitled to
derive any advantage from it until he pay
the compensation. An example of this
occurs where a person usurps a goat, kills it,
and afterwards roasts or boils it ; or usurps
wheat, and afterward* grinds it into Hour; —
or usurps iron, and makes a sword from it; —
or usurps clay, and makes a vessel from it.
What is here advanced is according to our
doctors. Shafei maintains that, after the
alteration in the article, the right of the
proprietor to it is not extinguished, but he
is entitled to take from the usurper the flour
of his wheat. There is also a report from
Aboo Yoosaf to the same effect He, how-
ever, maintains that in case the proprietor
choose to take the flour of the wheat, he
is not entitled to a compensation for the
537
damage, as that would induce usury ;
whereas Shafei holds that he is entitled to
a compensation from the usurper for the
damage. It is also related, as a i opinion of
Aboo Yoosaf, that the right of property with
respect to an usurpc 1 article which has been
altered ceases in the proprietor, but that it
may be sold to answer the debt due to him
(namely, the compensation), and that, in case
of the death of the usurper, he has a prefer-
able claim to the other creditors with respect
to the article in question. The reasoning of
Shafei is, that the substance of the thing
being extant, notwithstanding it have under-
gone an alteration, it follows that the right
of property still remains in the proprietor,
since the quality is merely a dependant on
the snbstjnce ;--as where, for instance, the
wind blows wheat into the mill of another
pcison, and it is Ground into Huur; in which
case it continues the prnperry of the original
pruprietoi of the wheat ; and so also in the
ca^e in question Wiih n'sru-ci to the act of
the usurper by which the thing is altered, it
is not to be iei»ar*.led, since u is an under-
act, and consequently incapable of becoming
the cause of property, as has been explained
in its proper place. The case is therefoie
the s.une as if the act had never existed, —
in the same manner as hoK's where an
usuiper kills an usurped (goat, and tears the
skin of it in pieces The argument of our
doctors is, that in the case 111 question the
usurper has performed an operation which
bears a value, and has therefore destroyeci
the right of the proprietor in one respect,
inasmuch as the appearance is no longer the
j-ame, whence it is that the name is changed
and many of the original purposes of the
article defeated; as crams of wheat, for
instance, which are ht for being sown or
roasted, but after being converted into Hour
are no longer fit for these purposes. In
short, by the alteration of an article usurped
the right of the proprietor is destroyed in one
shape, and that of the usurper with respect
lo the qualities is established in every shape;
and hence the right of the usurper has a
superiority with respect to the original of
that t him? which has been in one shape
destroyed. (With respect to the act of the
usurper, it is not made the occasion of pro-
perty because of its illegality, but because of
its being the peiformance of a valuable
operation It is otherwise with regard to a
goat slain by the usurper, and the skin of it
torn to pieces ; for, after the killing of a
goat, and the destruction of i*s skin^ the
name of goat is still retained, since it is
common to say "a slaughtered goat." With
respect to what has been recited, that "the
usurper is not entitled to derive any profit
from the article until he pay the compen-
sation." it is according to a favourable con-
struction of the law. Analogy would lead
us to conclude that it is lawful to derive a
profit from the article before the payment of
a compensation, This is the opinion of
Hassan and Ziffer, and there is also a report
538
USURPATION
{VOL. III.
to that effect from Haneefa, of which tl>e
relater is the lawyer Abpo Lays. The reason
derived from analogy is because, after the
alteration, the usurper becomes the pro-
prietor of the thing, i>nd may therefore ptr
form any act with re pec t to it, or derive
profit from it, in the same manner as he
might lawfully give it away or sell it. The
reason , however, for a more favourable con-
struction is, that in the days of the Prophet
a goat having been killed and roasted with-
out the consent of the proprietor, the Prophet
ordered that the prisoners should be fed with
it, meaning, that it should be bestowed in
charity upon them Now this order of the
Prophet evinces that upon an alteration in
the state of an article usurped, it is separated
from the property of the proprietor, and that
it is unlawful foi the usurper to derive
a profit from it until he have satisfied the
proprietor Moteover, if it vu-ro lawful to
ihe usurper under these urcumslunces to
lake a prolit, a door would be niened foi
murpalion; and, therefore to prevent such
mischievous consequences, the acquisition of
•A pioiit before satisfaction being made is not
permitted With respect to the assertions
of Hassen and Zilfer adduced in support of
their opinion, that "the gift or the sale of
the thing is lawful;" it is answered, that
notwithstanding the illegality of deriving
profit from the article usurped, si ill the sale
or gift of it is lawful, because the article in
question is the property of the usurper, and
the gift, or sale of property held under an
invalid right is lawful. Where, however,
the usurper makes a compensation tor the
thing usurped, he is entitled to derive an
advantage from it, because the right of the
proprietor has been transited »o him in
consequence of his making compensation ;
and it becomes the same as an exchange
betwten the usurper and the piopuetor with
their mutual consent. In the same manner,
also, he is entitled to derive piofit from the
thing in question when' the proprietor
exempts him from responsibility for it; be-
cause in consequence of such exemption the
right of the proprietor ceases : and so like-
wise wheie the proprietor tak*s the compen-
sation frcm the usurper, or where he de
mands it and the usurper assents thereto, as
in that case the consent of the proprietor U
obtained ; and so also where the Ka7.ee
passes a decree directing the usurper to pay
a compensation to the proprietor, — or where
the usurper pays the compensation upon the
decree of the Kazeej because in that case
likewise the consent of the proprietor is
obtained, since the Ka/ee passe • the decree
at his suit. It is to be observed that in the
same manner as a disagreement subsists
between our doctors and Shafei concerning
these cases, so likewise with respect to the
case of a person usurping wheat and sowing
it, or usurping the stones of dates and plant-
ing them. In the opinion of Aboo Yoosaf,
however, it is lawful even in these cases for
un usurper to enjoy, profit before the pay-
ment of compensation, becau«c in both these
cases the usurper has destroyed the sub-
stance of the thing usurped in every respect.
It is otherwise in the cases before recited :
for in those instances the usurper is not
entitled to derive pofit, since there the sub-
stance of the article continues in one respect
extant. In the case, therefore, of sowing
usurped wheat, is not necessary (according
to Aboo Yoosaf) to bestow in charity such
part of the produce of it as exceeds the
quantity sown and the expense of the
labour ; contrary to the opinion of .Haneefa
and Mohammed, as has been already ex-
plained.
Any alteration wrought uvon gold .or vlvei
does not transfer the propcity of it. — Jr a
person usurp gold or silver, and convert it
into dirms or dcenars, or make a, vessel from
it, such silver or qold does not separate from
the property of the proprietor, according to
Haneefa. -whence he is entitled tu take it
from tlu usurper \\itho\it givinu him any
i compensation. The tuo disciples maintain
that the usurper, in such case, accjuircs a
pioperty in the metal, and owes a compensa-
tion of a similar quantity ; of t>old or silv<. r
to the original proprietor ; because he has
performed a valuable operation upon the
metal, which in one shape destroys the right
of the proprietor, since in so, doing h» has
broken it clown so as to destroy its original
purposes, inasmuch as bullion is unfit to
become the stock in a contract of Mozanbat,
or of partnership, whereas coined money has
this fitness. The reasoning of Haneefa is,
that in the c.ase in question the substance of
the thing usurped is extant in every respect,
insomuch that it still preserves its name ;
and the purposes to which gold and silver
relate, such as price and weight, arc also
extant, insomuch that usury by weight
takes place in them when coined, in the
same manner as before coinage --With re-
gard, moreover, to the fitness of them (when
coined) for .constituting slock, it is an effect
of the workmanship, and not a quality inhe-
rent in the substance of the thing Besides,
the workmanship in question doe* not al-
ways increase the value, but is sometimes
attended with value, and sometimes not; as
where,, for instance, genus is opposed to
geivis — in which cas,e workmanship i$ of no
value.
The construction of a a building. upon an
usuiped beam transfers the property of the
beam to the usurper. — IF a person usurp a
beam, and build a house upon it, the beam
is, in that case separated from the property
of the proprietor, and the usurper must
make a compensation to him for the value
of it. Shafei maintains that the proprietor
is entitled to take it. The arguments of the
two parties on this point have been already
recited ; but in this case there is another
reason in addition to those of our doctors,
namely, that if (according to the opinion of
Shafei) the propiietor weie to take the beam,
an injuiy would result to the§ usuincr,, as his
BOOK XXXV Fl.|
USURPATION.
house would thereby be demolished without
his receiving any compensation. — Whore, cm
the contrary (according to the opinion of our j
doctor*), th* beam is separated from the
property of the proprietor, and becomes the
property of the* usurper, •although an injury .
be thereby occasioned tn tlie proprietor,
yei I hat is done away by the usurper
making compensa'inn. The rase is, theie-
fore, analogous to one where an usurper
sows the belly of his male or female slave '
with an usurped thiead,* or inserts an
usurped plank into his o\ui boat ; for in
these cases tlv* proprietor is not permitted to
take away the thread or the plank, but is ,
entitled to a compensation for their value.
In liie r<iv oj sf.ivirii? an usu>/W cimimii,
the /IM>/HJ?/C» /iii» an opium of fafe.tiij the
r.mvis* (ineinnx a coni;>rrisMficiri for the
cJiiuiiig*), ot HM/muj il ovet to the usurper
fm the value.- Ii- a person usuip and slay
the goat of another, the piopnet^r has it in
that ease at his option cither to take
compensation for the value from the usurper,
making over the goat to him, or to keep the
goat, leceiving from the usurper a compen<-a-
tion f.ir the damage don*- by slaughtering it.
Such also is the law with respect to a camel ;
or where a person cats off one of the legs of
A goat or camel belonging to another This
is according to the Zahir Rawayet ; and the ,
leason of it is, that a destruction of the '
animal is occasioned in one respect in a ,
termination ot many of its uses, such as
milk, and progeny, and the transportation
of burdens, whilst some of its uses still '
continue, such as that ot the flesh, for
instance; whence the case is similar to that
of a large rent in cloth. If, however, a
person slay or cut off the leg of a quadruped ,
of which the flesh is not edible, the pro-
prietor is entitled to take from him a com-
pensation for the whole of the value; for in
such case the slaying or maiming is in every
respect a destruction. It is otherwise where
an usuiper cuts otf the hand or foot of a
uiaK- 01 female slave ; for in that rase the
proi'iiftr r must receive back the slave, to- •
gether \vith t'.e tine, since the capability of
yielding profit still exists in man after the
loss of a foul or a hand
A uriii/2 damage commit ted upon usurped
rloth iiuc\ tint h.zus/V) the property of if ; i
hul a ^ an^nler able L! am 1%* givc't th* />> >pne-
f«» tin oiutiiiH «»/ taking it hdch (with a com-
iifiiHrifi'in for the damage), or making it over
li» the iisiopffi fur t'if 1'ii/ue — Itf a person
teai a piece of cloth the pi open v of another
so as to occasion a small rent in it, he is in
that case responsible for the damage, and the
cloth remains with the proprietor, since the
substance of it is extant in every respect,
nothing more having happened to it than a
*This is the literal meaning in both the
Arabic and 1'ersian version ; but what cus-
tom or particular operation it alludes to the
translator hai not been able to discover.
defect; whereas if the rent were large, 10
as to destroy many of its uses, the proprie-
tor would in that case hive it in his option
either to take the \\hole of the \alue from
the usurper and give him the cloth (since
he has destoryed it in every lespcit, even as
much as if he had burnt it), or lo keep tl.e
cloth and take a compt-i isat ion for the damage;
because a large rent is m one respect merely
a defect, inasmuch as the substance of the
cloth is still extant, as \\e\\ as some of its
uses likewise It is to be observed that what
is recited by Kadooree up>i this subject,
implies that a large rent is suth as occasions
a destruction ot many of the advantages
In fact a Urge rent is such as occasions a
desti net ion of some parts of the cloth, and
also ol some of its uses; some of the parts
and some of the uses still re'vuining (as
where, for instance, before the accident of
the tent, the cloth was capable of being
made into an upper or under garment; and
afterwards loses that capability); whereas a
small tent is such as does not induce a
destruction of any of the uses, but merely
occasions a damage ; for Mohammed, in the
Mabsoot, has said, " the cutting of a gar-
ment is a great damage, notwithstanding it
occasion onl\ a destruction of som* of the
uses "
f.'«i«.e of planting or building up w UMitpeJ
land. ---IF a person usurp land, and plant
trees in it, or erect a building upon it, he
must in that case be directed to remove the
trees and clear the land, and to restore it to
the proprietor ; because the Prophet has said
"there is no right over th*- seed of the op-
presser" (alluding to the planting of trees;
and also, because the property of the pro-
prietor still exists as it did before, since the
land has not been de troyed, nor has the
usurp JT become proprietor, inasmuch as he
cannot become the proprietor but by some
one of the causes which establish property,
of which none here exist. In this case,
mjreovi'r, usurpation is n *t established;*
and theiH'ore. the person who has so employed
the land of another is ordered to clear and
restore it to the owner, in the same manner
us in the case of his putting his food into the
vessel of another If, however, the removal
(if the trees or the budding be injurious to
the land, the prupnetor of the land has, in
that case, the option of paying to the pro-
prietor of the trees or the building a com-
pensation equal to the valu-* they would bear
when removed from the ground, and thus
• There appears, at first sight, a sort of
incongruity in opening 'he case " If a person
usurp, &cfl" and then saving "usurpation is
not established " — Tile expression, however,
only means that "usurpation, in the sense of
the LAW, as requiring atonement, is not estab-
lished," the reason of which is, that usurp-
ation cannot take place with respect to fixed
property, as has been already explained —
Sep p 5M.
540 I'.SUR
possessing himself of them ; because in this
there is an advantage to both, and the injury
to both is obviated. Hy the expression
"paying a compensation equal to the value
they would bear when removed." is to be
understood paying the value which the tiees,
or house bcai upon the proprietor beim-
directed to remove them; localise his tight
exists only with inspect to the trees or
building " as lequired to be re mined," since
he is not at libeity to leave them upon the
v round. It is therefore requisite ti> appre-
ciate the Und without thctiees oi the huilrl
ing, arid afterwards to appiecr.it*- it with the
trees or building (,is n»move.d>le at the land-
holder'* du^iie) ; and whatever may hi the
excess of the second appreciation over the
first is Hie amount of the roirpeiv-atinii NX huh
the prnpritloi of the land is required to pi»y
to the propurtor of the trees or huilding -
(It is to be observed that the value oi trees
or of a building which are liable or requnrd
to be removed is less than that of trees e* a
huilding which are permitted to .stand, since
the expense of ternoval must be deduced
In m the value of trees oi buildings uhuh
Hie icmoveable.)
Co^e oj eivng usurped dulh, en gntKUfij,1
uunped whdit infojftout -li a person tibtirp
the cloth of another and then dye it ted, oi
the ilom of another and then mix it utthod
in that case the propiielnr lias the option of
taking from the usurpei a compensation
equal to the value of the white cloth, or an
eepial quantity of flo\ir, t»ivmi* the reel iloth
or the mixed ilour to the usuij er,- or, of
taking the red cloth or the mixed ilour.
giving to the usurper a Compensation equal
to the additional value these arti l*»s may
have acquired from the led dye, or the mix- .
ture of oil. Shafei maintains that in the
case of elyed clnth the proprietor of it has a
iKthttotake it. and then in tell the u-uiper
to separate and take, to the utmost of his
pown, his dye from it ; for he holds this oase
to be analogous to that oi a plot of giound
(in other words, if a person usurp a piece of
ground belonging to another, ami aftcnvarcls
erect a building upon it, the piopnet.u is
entitled to take the ground, desmng the
usurper to dii» up and carry awav Ins build-
ing) ; because the separation of a dye from
stained cloth is equally practicable with the
lemoval (-fa building from the j» round on
v-ihich it stands It is otherwise in the case
of oil mix*, d in flour .because the separation
oi the oil is then imprae!ical/e. The argu-
ment of our 'louois in that, in \\hat thiv
have advanced on this point, an attention is
shown to the interests of both patties an
option, however, being allowed lo the pro-
prietor of the cloth, as rw is the original.
it is otheiwise in the case of a plot to ground;
for in that instance the usurper is entitled
to the fragments of the house after it* being
pulled down (that is, to the hiicks, \\ood, '
&c. ) ; whereas a dye, when wparateel from
iloih, is lost, an<l cannot be collected by
the usurps of the cloih. It is also other-
[Vol.. Ill-
in the case of a garment blown by the
wind into the vat of a dyer, and becoming
stained in consequence ; /or in that case the
dyer is not responsible for the gaimer.t : on
the contrary; the proprietor of the (garment
must take it so stained, and pa> to the d>ei
the value of his iJ>e, as jn ihis case nor
decree of blame in nnputable u> him. ii is
lo be ol>scrved that Aboo A^samn has siiil
that when a peiton usurps the cloth oi
another, .md dye-* it, thr propn»-tor of the
cloth ma\ , if he please, sell it, and dedin I
from i he price a pio|«nrtion » o;u;il to the
value* of the white cloth, and give lo the
d>«ra pri-ncTti<iii equal lo the value of his
dye : for a^'the propiirtor oi the cloth hu.s it
in hi* povvci to icfuKC ukinn, the «lve aiul
paying a coinpens?atnm fru its value, it fol
lous that svlien he iioes lefnse to tnke it, tlu
cloth must he sold; that he mu\ teceivc- h.s
pri-poition, and that the interests of hoti,
may be attended to 1'his u-asoniny of Ab<i.»
Ass a ma tquaify holds in the ca.se wheie a
qaimcnt is stained in conscq. ence of bemv,
blown by the wind into the vessel of a dyer ;
and in thesam- manner, the reasoning ad-
dueeil in theca.se of cloth equally hold* in the
case of flour. As ilour, howtvct, is of the class
of MmilaiF, it must he c mpcns-ated for bv a
1 similar; whet eas cloth, as berni; an ariule
of price, must be compensated for b\ a pa\-
mcnt ot its value. Mohammed, " in the
, Mabsoot, has said that tlour mu^t also be
compensated for by value, hecjus»e flour is
altered by being baked, and is no longer of
the ciass of ^imilars. (Some have explained
the mcani^f? of the value of Hour to be a
similar quantity; and that Mohamned has
used the teim value instead of similar, br-
. cause a similar is an equivalent, in the same
manrer as value) It is to be observed that
a yellow dye is the same as a red dy»» : but
that with regard to a black dye there is a
difference of opinion ; Haneefa holding it to
be a defect, whereas the two disciples main-
tain that it is not a defect, but, on the con-
trary, the cause of additional value Some
have said that this difference of opinion
arises from the different periods of time ;
and others have said that if the cloth be of
such a nature that a black dye occasions a
diminution of its value, the dying of it rmrt
in that case br considered as a damage MC
defect ; but that if it I* of such a kind as to
teceive an increase of value from a black
dye, the black dye is the same as a red dve.
If, howevir, theusuipcd cloth be of such A
natuie that a red dye occasions a diminution
of its value (as if, for instance, the value of
it having been thirty dtrms, it should, after
receiving the red dye, he worih only twenty
dirm*), in that ca<e it is related as an opinion
of Mohammed, th.it teqard must be had to
the additional value \\hichthe red dye may
have occasioned in some other pieco of cloth ;
and if it amount to live dirms, that then the
proprietor of the cloth has a npht to taken,
and to receive, besides, five dirms from the
usurer : lor the proprietor of the cloth is
BOOK XXXVW.J
USURPATION
541
entitled to a compensation of ten dirms from
the usurper for the amount of the damage
occasioned to his cloth: and the usurper is
entitled to five dirms from the proprietor as
the value of his dye, having operated that
increase upon another piece of t Inh Hence
the proprietor is entitled tn lake live dirms
from the usurpci. and the lemaining live is
cancelled hv the- \aluc of tl-~ Jye thus esti-
mated At five ihims.
.SVrfii>n.
Aw u.su);>tt, JtiriMgitix t/ir iittirli* usurped. j
orrit'* ftir>piu!o> nf i/ upon I/if oirm r Je- '
mdfiding thf iM/m». - IF a pesrm iu»irp anv
aiticle of goo :s or furniture,* anil daman-.*
it.aiuithe pinpnetoi ilemaml A compensa-
tion for the valu? from the usurper, he J the
usurer] in that ca^e becomes (hi* pmprietoi
oi such article, .ictordmy, to our doctor*.
Shafei maintains that the HMD per ilocs not
become proprietor, because the act «»f usui pa-
lion, <ts being oppressive ami illegal, is there
lore iiuapable ot occasioning a iii»ht of pro-
perty ; in the same manner as wheie A person
usurps a Modaboir, and injures him, and the
proprietor takes from him the value of the
Mpiiabbii as a compensation fur the injury.
--in which rase he [the usurper] does not
thence become proprietor of the Moiiabbir.
The reasoning of our debtors is, that in the
case m question the proprietor of the article
obtains a return for it ; and as the article
usurped is fit to be shifted from the propeity
of one person to that of another, the usurper
becomes the proprietor of it, in order to
remove the injuiy he would otherwise sus-
tain It is different with respect to a Modab-
bir, a* he is not fit to be. removed from the
property of one pc-rton to that of another. ;
(The contract of Tadbeer, however, is some-
times annulled by order of the Razee ; in
which case the sale of the Moiiabbir is lawful,
as it then is the sale of mere property, since j
he becomes such by the annulment of the
coninit.)
Tin amount nf which is ascet tinned bv
the Jc'c/jTdtrczn of the usurper upon oath. — j
or by evidence adduced by the proprietor. —
lr i:. to hf observed that, in ascertaining the ,
value of the article usurped the assertion of
the usurper, coniinm-d by an path, is to be
uedited, since the proprietor is the claimant
of j large value, and the usurper is the denier
of the same, and the assertion of the denier
fpon oath must be admitted ,— unlrss. how-
ever, the pi oprietor brink" evidence in sup-
port of his claim ; for ilun the s^cirion of
thi- proprietor must be credited, as bejnq
luppoitcii by evidence* which is cnnvincinu ,
proof
And nflfr accept in K t/ii-s the pt opt if tor
cannot temand thf aniclf, if the cnmpen-
he Riren tn conffnmit\ with /iis chiim.
• Arab. Rakht wa Matta • household- stuJT.
Ac , as opposed to Mai — The distinction is ,
lullv c\i>lam< (i elsewhere.
— IF, therefore, the substance of the article
usurped appear or be found at a period when
the value of it is greater than the compen-
sation given by the usurper, and such com-
pensation : aw been qiyen in consequence
of the claim of the proprietor, or of evidence
aildii.-*>d by him, or of tlw non-denial of the
usurper, the proprietor, in that « ase, li.is
not the 0( tir,n of takinu the substance of the
thinpj usurped : i n\ the contrary, it remain*,
the properly of ihe usurper, since his pro-
perlv «n it ha< bei-n renileretl cf»mplete in
consequent v of a causiB conj -ined with the
cmisont oi' the proprifti>rt inasmuch as h
claimed that extent ol value . -\\hereas if,
on the contrary, the proprietor have taken a
compensation in consequepvc of the assertion
of the usurper, corroborated by an nath, lie
has in that case the option eithei to adhere
to the compensation he ha-, taken, or to take
the siibstaiKc of the article usurped, am!
restore to the usurper thr comjvrinatiori he
ruuy have taken, i<n unJer such cirviun-
s'ances the consent of the proprietor xv.is
not complete with lespcct to the (|iiantity,
since he clamiCil a larger qijantity, but was
obliged to take the quantity in question from
his want of pioof to establish the other. If
on the other hand, the sub-stance of the article
usurped he found at a petiod when its value
is equal to, or less than, the compensation
taken, - .itul the propiirtor ^hould ha\e
taken the compensa'ion in conformity with
the assertion or oath of the usurper, the law
(according to the Zahir Rawayet) is the same
as already recited ; that is, the proprietor
has the option of either adhering to the com-
pensation he had taken, or of taking bark
from the usurper the substance of the article,
and restoring to him the amount of the com-
petition. This is approved ; because the
consent of the proprietor to take the com-
pensation in question was not complete, jn-
aMnuch as ho claimed a larger sum: which
he did not get, and hence he has the option,
bceau.se of the non-existence of his consent.
The safe of an iu>uiped slave by the <.s/n/xrr
t*5 valid upon the onner receiving the fa/in' u<
<r compensation ; —f>ut the emancipation of
him would be invalid. —If a person usurp :i
salve, and st II him, and the proprietor take
the value of him from the usurper as a com-
p^nsanon, the sale is m that case valid. If,
on th'- contrary, the usurper emancipate tho
slave, and the proprietrvt afterwards take a.
compensation, the emancipation is not valid;
because the riuhr nf property established in
the usurpei bv hi* paying the compensation
is defective, as being established by a retto-
tpecrive reference, from a principle of netes-
Mty (whence it i:. that the ri^ht of property
in an usurper lakes place with respect to
earnings of labour, but not with respect to
progeny;— mother words, if a person usurp
a female slave, and tal.e to himself the earn-
ings of her labour, and afterwards pay a
compensation to the proprietor, the earnings
are in that case his property ; but if she
should bear children whilst in his
542
aion, and he afterwards pay a compensation
to the proprietor, the children are not his
property. In short, the right of property
established in <n usurper in virtue of his
payment of compensation is defective; and ,
a defective right of property is sufficient to
legalize sale, but not emancipation ; in the
same manner as the right of property estab
Hshed in a Mukatib with respect to the
earning of his labour is defective: yet if
he should sell a slave whom he may have
earned by his labour it is valid : wheie.i* if i
he were to enuincMp.it-* him tli* eniicipa-
tion would be invalid.
The produce of an uturrw/ pmpeilv n <i
ttn\tin the win pa' s hand* — THE fruit of
an usurped orchird. and the children of an
usurped ftMiialc slave, together with then
produce (mirh as their im r»'ai.e of statute
and heautv). aiea trust in the hands of thv
usurper. If, therefore, thry be destroyed,
he M not responsible for them ; — unless, how-
ever, he should have committed a tiespass
with regard to them, or refis"d to an«\vi.r
the demand • f the proprietor to deliver them
up to him ; for in these rases he is re«p'in '
sible. Shafei maintains that the increase of
an article usurped, whether it be conjoined
(such as increase of statute or of beauty) <>r
separated (such as progeny \ is a subject of
responsibility ; because usurpation is estab-
lished with respect to it ; for usurpation
means the establishment of possession over
the property of another without the conseii*
of that other : and as this definition applies
equally to any increase which may accrue
upon such properly, it is therefore a subject
of responsibility, although the usurper have
not dispossessed the proprietor of it ; in the
same manner as the fawn is a subject of
responsibility, in a case where a person takes
a deer out of an in closure.* and it afterwards
brings forth whilst in his possession, not-
withstanding that it [the fawn] had not '
before been in the possession of any one. so
a« to establish a dispossession The reason- '
ing of our doctors is, that usurpiiion means
11 the establishment of possession over the
property of another, so as to destroy the
possession of the pioprictor" (as has been .
already explained). No\\ the possession of
the proprietor had not been established, with
respect to the increase, t>o as to admit the
destruction of it lies ides, if the possession
of the proprietor with regard to ihe increase
be admitted by way of dependancv on his
property, still Ins possession <oiitiiuies, and
the usurper has not destroyed it ; for it is
apparent that the usurper has not hnuleir d
him from taking hi" increase ; — yet il he •
USURPATION [VOL III
refuse to cive it to him upon his demand, he
is then responsible to him for it ; in the same
manner as where he commits a trespass with
ieQarrl to it, by destroying it, or killing and
eating it, or selling it atvl delivering it to
the buyer- -With respect, moreovei. to the
fa\\n bcfoie m-ntioMrd. it is not i subject of
resp insibilitv wh*»n destroyed ptioi to the
ahi'ity of the trespasser to place it in the
inclosuro, because he is not, before that,
guilty of am obstruction or himlnmcc :
in short, he is liable to responsibility only
where he destroys the fa\\n after his ability
to place it in the nu Insure ; and this because
he is then gui ty ot an obstruction aftei the
establishment "i the claimant's ri^ht *
7 he ifsinr>*i oj ii feniiile dare is nnt liable
/"or (inv dawdle she m<iv tec* ire hv fi^nini*
« child, provided the value of the ch'ld hr
adequate to such damage — IF a female slave
be injured by bearing a child whilst in the
possession of the usurper, and the value ot
the child be equal to the d<imaiv» sustained,
the usurper n not liable for a compensation.
Shafei and XitTer maintain that the value of
the child be equal to the damage sustained,
injury ; because the child is the property of
thn proprietor of the slave; ami consentient Iv
cannot be applied to remedy the damauc
sustained by her ; — in the same manner as
in the case of the fawn above re«*ited ; -thai
is to say, if a person drive a deer out of an
inclosure, and she then bring forth a young
one, and be injured by such delivery, and
the value of the young be adequate -o the
damage, in that case the person is not only
obliged to restore the deer arid its young one
to the mclosure, but must also make good the
damage sustained It is also the same where
the child dies prior to the. usurper's restora-
tion of the mother ; or where the mother dies
in i on sequence of the delivery of the child,
and the value of the child is adequate to
remedy the loss ; or where a person shears
the wool of a sheep belonging to another, or
lops off the branches of a tree belonging to
another, or castrates the slave of another, or
teaches bun the knowledge of some art in
consequence of which he is rendered in any
respect defective ;| -for in al! these cases the
person so acting is responsible tor the mJMrv,
notwithstanding the value of the article be*
increased in consequence The arguments of
our doctors are that, in the instance in ques-
tion, the cause of the increase and of the m-
liiry is the same, namely, childbirth ;— and
*ln the text the case is supposed that of
a pilgrim driving a deer out of the sacred
territory round Mecca — The translator has
ha/arded a small deviation from the original
in this instance, merely with a view to
familiarize the allusion in the mm.! of an
European reader.
* A small portion of the text is \\rre
omitted, as it relates meiely tn the piohihi-
tion against trespassing upon game m the
sacred territory (round Mecca), a subject the
discussion of whuh is of Julie importance to
the point in question, and which is treated
of at large elsewhere. — (See Seyid.)
tThat is, defective in regard to the pur-
pose for which his master had intended him;
as by a loss of health, or any accident sus-
tained in the course of his learning the art.
/ OOK XXXVII.]
USURPATION
541
such being the case, the injury is not taken
into the account, because, in opposition to it.
.an increase has been obtained. Hence an
injury of this nature does not uccasion res-
ponsibility ; it being, in fact; analogous to
where a person usurps a fat female slave,
who afterwards becomes lean, and then grows
fat again; or who losses two of her fore teeth,
and then acquires two new ones ; — or where
a person cuts off the hand of an usurped
slava whilst in the possession of the usurper,
and the usurper receive the line from him,
and gives it with the slave to t1 c proprietor;
— for in all th«.se cases no compensation for
the injury is incumbent upon the usuiper —
With respect to the case of the fawn, as ad-
duced by ZilTtT and Shafei, it is not admitted
as applicable.—- With lespect, moreover, to
the death of the mother, in consequence of
her delivi ry (as aUo adduced by them) there
arc two opinions on record, — The hrj-t is, that
if the value of the rh-ld be adequate to remedy
the mjiirv, it i* then taken as such ; and the
*erond (which is .iccoi ding to the Xahir Ra-
\vayet) is, that the value of the child cannot j
be taken as a compensation lor the injur\,
for this reason, that the delivery is not to b-2 i
considered as the cause of the mother's death
since delivery is not necessarily connected
with death, brine more frequently attended
with safety. Where, on the other hand, the
child dies prior to the restoration of the mother
the injury is not remedied ; because ther: was
a necessity for the restoration of the original
(namely, the mo'her) in the condition in ,
which she was at the period of usurpation : ,
and as she afterwards sustained an injury j
by the birth of a child, ami the fruit of the j
injury (namely, the child) cannot, because of i
its death; be given along with the mother, J
it follows that the mother is not restored in
the condition in which she was at the period
of usurpation With respect to the castra-
tion of a slave, it is not an increase, being
an object only with some loose people; — and ,
as to the other instances adduced by Ziffer •
and Shafei, the case in them of the increase
and the damage is not one and the same
thing : for the cause of damage in a tree is
the cutting off its branch, whilst the cause
of increase is the growth ; the case of damage
in a sheep is the shearing of its wool, whilst
the cause of increase is the growth of the
animal ; and the cause of damage in the slave
is the teaching or instructing him, whilst the
cause of increase is the intellect of the slave.
The usurper of a female slave, impregnat-
ing her, is responsible for her value, in case
she die of childbirth after restoration. — IF
a person usurp a fermle slave, and cohabit
with her, and she become pregnant, and he
restore her in that state to the proprietor,
and she then die of childbirth, the usurper
must in that case pay a compensation equal
to the value which she bore on the day of her
impregnation ; whereas, if she were free, no
compensation would be required, according
to Haneefa. The two disciples maintain that
neithej is any compensation due in the case
of her being a slave.. The argument of the
two disciples are, that in the case in ques*
tion, upon the, usurper restoring the slave to
the proprietor, and the restoration, being
made valid and complete, the proprietor is
held to have received her into his property ;
and as, afterwards, the disorder of which
she dies, namely, childbirth, is thus con-
sidered to have happened to her -whilst in
the possession of the proprietor, the usurper
is, therefoje, not liable for her ; in the same
manner as where an usurped fdnale slave,
having been sei/cd with some disorder, such
as a fever, the usurper restores her in that
condition to the proprietor, anil she after-
wards dies in his possession ; or where an
usurped female slave commits whoredom
with some person whilst m the u*urper's
po&session, and he restures her to the pro-
prietor, and she afterwards suffers punish-
ment for whotedom and dies of the same ;
in neither of which cases is the usurper re-
sponsible, any more than the seller, in the
case of, his silling a pregnant female slave,
who afterwards iiies of childbirth in the
possession of the purchaser. The arguments
of Haneefa are, that as the usurper, in the
cast in question, usurped, the female slave
at a time when the cause of destruction did
not exist in her and restored her at a period
when such cause did exist in her, he there-
fore has not restored her in the state. in which
he took her : — consequently, -the restoration
was not valid and complete, being, in fact,
the same as if an usurped female slave,
having committed a crime in the usurper's
possession, should afterwards, on account of
such crime, be put to death whilst in the
possession of the proprietor,—or be given
up to the avenger of the offence, in conse-
quence of her' having committed the crime
inadvertently, instead of wilfully, -in
cither of which cases the proprietor is en-
titled to take the whole of the1 value from
the usurper, and so also in the case in ques-
tion. It is otherwise where the woman
jsurped is free ; because no responsibility
takes place from the usurpation of a free
woman, and consequently the usurper is not
responsible after the restoration, although
such restoration were invalid. With re-
spect to what has been alleged of the pur-
chase of a pregnant female slave, it is an-
swered, that the delivery not having been
incumbent upon the seller on account of his
having before taken her, so as to require a
delivery in the state in which he had taken her
(which is a condition of validity in the case of
usurpation), it follows that the analogy here
does not hold good. With respect, also, to the
case of an usurped female slave committing
whoredom, and dying in consequence of the
punishment on that account inflicted upon
her, the answer is, that whoredom merely
occasions scourging, which is a case of
pain, but not of death, and therefore, in
this case, a cause of destruction did not
take place whilst the slave was in the pos-
session of the usuiper.
544
USURPATION
[VOL, III
There is no hire for the use of an usurped
article : but the usurper is responsible for
any damage it may sustain— AN usurper is
not responsible for the use of the article ;
usurped :• but if it be injured he is respon-
sible for the damage. Shafci maintains that
an usurper is liable for the use of a thing (
usurped, and consequently, that he owes an
adequate rent of hire for it. It is to be ob- j
served that there is no difference between :
the doctrine of Shafei and that four doc-
tors, in the case where A perse n usurps a
house and leaves it unoccupied, or occupies ,
it himself ; for in such case, according to !
both doctrines, the usurper is not liable for
the use of it. — Malik maintains that if the ,
usurper himself occupy the house he i* re-
sponsible for an adequate rent ; but not in !
case of his leaving it u- occupied. The ar- ;
gument of Shafei is that the use of pro-
perty is estimable (whence it is a subject of re- i
sponsibilty from contracts and agreements),
and consequently is a subject of responsi-
bility from usurp u ion. Th.> arguments of
our doctors on this point are twofold —
FIRST, the use of an article usurped is ob-
tained by the usurper in consequence of its
occurring during his occupancy (for it had
not existed in the hands of the proprietor,
as use is a passing accident which Joes not
endure); and such bring the case, he is
entitled to it, and consequently is not re-
sponsible for it, as no man is lesponsible
for that to which ho is entitled.— SECOND- '
LY, there is no similarity between use i
and property, such as clirms and deenais ;
for use is an accident, whereas property is a ,
substance. Use therefore, cannot be a sub-
ject of responsibility insubstantial property;
because a similarity is requisite between the
compensation and the thing foi which the
compensation is given. — With respect to the
assertion of Shafei, that "the use of pro-
perty is estimable," it is not admitted use
being considered as estimable only in the
case of contracts of hire, from necessity ;
but in the case of usurpation there exists no (
contract whatever. — Where, however, the
article usurped is chmaged, whilst in the •
possession of the usurper, in consequence of
his use of it, a compensation for the damage
i* incumbent upon him, because of his
having destroyed part of the substance of
the thing usurped.
Sect on
Of the usurpation of things which are of
no value.
A Mussulman is responsible for destroying
the wine or pork of a Zimmee. — IP a Mussul-
man destroy wine or pork belonging to a
Zimmee, he must compensate fcr the value
of the same; whereas, if he destroy wine or
pork belonging to a Mussulman, no compen- i
sat ion is due. — Shafei maintains that in the !
former case also no compensation is due. A \
•Meaning he does nol owe any HIRE for |
the use.
similar disagreement subsists with respect
to the case of a Zimmee destroying wine or
pork belonging to a Zimmee ; or of one
Zimmee selling either of these articles to
another ; for such sale is lawful, according
to our doctors, — in opposition to the opinion
of Shafci. The argument of Shafei is that
wine and pork are not articles of value with
respect to Mussulmans, — nor with respect to
Zimmees, as those are dependant of the
Mussulmans with regard to the precepts of
the LAW. A compensation of property,
therefore, for the destruction of these articles
is not due. The arguments of our doctors
are that wine and n0rk are valuable property
with respect to Zimmees : for with them
wine is the same as vinegar with the Mussul-
mans, and pork the same as mutton ; and
we, who are Mussulmans, being commanded
to leave then in the practice of their
religion, have consequently no iiiiht to im-
pose a rule upon them. — As, therefore, wine
and pork are with them property of value,
it follows that whoever destrovs these articles
belonging to them does, in fact, destroy their
property of value : in opposition to the case
of carrion or blood, because these are not
considered as property according to any
religion, or with any sect 1
And mutt compensate for it by n payment
of the value.— Hence it appears that if a
Mussulman destroy the wine or pork of a
Zimmee, he must compensate for the value
of the pork, —and also of the wine, not-
withstanding that be of the class of similars;
becausa it is not lawful for Mussulmans to
transfer the property of wine, as that would
be to honour and respect it. It is otherwise
where a Zimmee sells wine to a Zimmee, or
destroys the wine of a Zimmee; for in these
case it is incumbent upon the seller to de-
liver over the wine to the purchase, and also
upon the destroyer to give as a compensation
a similar quantity of wine to the proprietor,
since the transfer of the property of wine
is not prohibited to Zimmees : — contrary to
usury, as that is excepted from the contracts
of Zimmees ;— or to the case of the slave of
a Zimmee, who having been a Mussulman be-
comes an apostate ; for if any Mussulman kill
this slave, he is not in that case responsible
to the Zimmee, notwithstanding the Zimmee
consider the slave as valuable property, since
we Mussulmans are commanded to show our
abhorrence of apostates. It is also otherwise
with respect to the wilful omission of the
Tasmeea, or invocation, in the slaying of an
animal, where the proprietor considers such
omission as lawful, being, for instance, of
the sect of Shafei ;— in other words, if a
person of the sect of Haneefa destroy the
flesh of an animal so slain by a person of
the sect of Shafei, the Hanepfite is not in that
case responsible to the Shafeyite, notwith-
standing the latter did, according to his
tenets, believe the slain animal to have been
valuable property ; because the authority to
convince the Shafeyite of the illegality of
his practice ii vested in the Haneefite, in-
BOOK XXXVII.]
USURPATION
545
asmuch as it is permitted to him to establish
the illegality of it by reason and argument.
A change wrought upon an usurped article
by any uncx pensive process does not alter the
property; but if the process be expensive, the
property devolves to the usurper, who, must
make a compensation. — IF a person usmp
wine belonging to a Mussulman, and convert
it into vinegar by placing it alternately in
the sun and in the shade, — or the skin of a
carrion, and tan or dress it by the application
of some valuable article, —the proprietor of
the wine is entitled to take the vinegar,
without giving any thing to the usurper, and
the proprietor of the skin is entitled to take
it, upon paying to the usurper the increase it
may have received from the dressing : for, in
the former case, the conversion of the wine
into vinegar is merely a purification of it, in
the same manner as the bleaching; of unclean
cloth ; and hence the property of the vinegar
continues vested in the proprietor, since a
property is not created in the liquor by the
operation of making it into vinegar : whereas,
in the second case, a valuable article belong-
ing to the usurper is united to the skin, in
the same manner as a dye in cloth, and this
case is therefore the same as the dyeing of a
garment. — Accordingly, the proprietor of the
wine is entitled to take the vinegar from the
usurper without making him any compensa-
tion : and, on the other hand, the proprietor
of the skin is entitled to take it from the
usurper, upon making a compensation to him
for the increase which it may have received
from the dressing. The mode of ascertaining
the amount of this increase, is by first esti-
mating the value of the skin supposing it
mdressed, and then the value which it bears
dressed ; when the difference must be paid to
the usurper. In this case, also, the usurper
is entitled to detain the article adopted until
he obtain his right, in the same manner as a
seller is entitled to detain the goods sold as a
security for the price — If, in the cases here
considered, the usurper should destroy the
vinegar, or the «iressed skin, he is respon-
sible for the vinegar.— but, not for the skin,
according to Hanecfa. The two clisciolt-s
maintain that he is responsible for the skin
also, — being entitled, however, to the increase
of value from the dressing. The reason of
responsibility for the vinegar is, that as it
still continues in the property of the first
proprietor, being* at the same time, an
article of value, it follow* that the usurper
is liable for the destruction of it ; and as
vinegar is of the class of similars, he must
compensate for it by a similar quantity.—
with respect to the skin, the reasons of
responsibility for it (as maintained by the
two disciples) are t wofold,— FIRST, it still
continues the property of the proprietor,
inasmuch as he is entitled to take it back
from the usurper • and as it is an article of
value, it follows that, in consequence of the
destruction of it by the usurper, he [the pro-
prietor] is entitled t.o take from him [the
usurper] a compensation adequate to the
value of the dressed bkin ; paying him
afterwards the increase of value ii has
received from the dressing ; in the same
manner as where a person usurps the' cloth
of another, and dyes it, and then destroys it,
— in which case he is responsible for it to the
proprietor, receiving from him, at the same
time, the difference occasioned in the value
of the cloth by the dyeing.— SECONDLY, the
restoration nf the skin diessed was incum-
bent on the usurper ; whence, upon his
destroying it, he is bound to give a con-
sideration for it, namely, the value; — in the
same manner as where a borrower destroys
the article borrowed; in which case he is
responsible for the value. — It is to be ob-
served, however, that if the destruction of
the skin take place whilst in the possession
of the usurper, without his being the occa-
sion of it, in that case, according to all our
doctors, he is not responsible for it, whether
he have dressed it by the application of
something valuable, or otherwise. (With
respect to what is advanced by the two dis*
ciples "that the proprietor must take the
value of the dressed skin from the usurper
paving him afterwards the increase of value
it has received from the dressing." — it pro-
ceeds on the supposition that the value of
the skin and of the operation of dressing is
of different kinds.— as if the skin should be
valued in deenars, and the workmanship in
dirms ; for if both be estimated in the same
species, the proprietor must at once deduct
from the value of the skin the value of the
workmans-lvp, and take the difference from
the usurper ; as it would be needless first to
receive the whole from him, and the then to pay
back a part of it.)— The reasoning of Haneefa
is. that the skin in question ha* been rendered
valuable by the workmanship of the usurper;
namely, the dressing which its of a valuable
nature, as he mixed with it valuable pro-
perty (whence his right to detain it until he
receive the increase of value from the dress-
ing),—The workmanship, therefore, is his
richt ; and the skin is. with respect to its
being valuable, a dependant of the work-
manship, that being the original ;— and as
the usurper is not responsible for the ori-
ginal, namely, the workmanship, so neither
is he resoonsible for the dependant, namely,
the skin : in the same manner as he
I is not responsible where the skin is de-
i stroyed in his possession without his act.
It is otherwise where the skin is extent ;
for in such case it is incumbent upon the
usurper to restore it to the proprietor,
because the restoration of it is a consequent
of the proprietoi 's right of property, and the
skin is not a dependent of the operation of
dressing it, with respect to right of pro-
perty, since the property of the proprietor
is established in it prior to the dressing,
although, whilst in that condition, it was
not an article of value :— in opposition to the
case of cloth, or the skin of an animal killed
according to the prescribed forms ; for the
proprietor of thees is entitled to a compen-
546
USURPATION.
[VoL. III.
sation from the usurper, as both are articles
of value prior to the dressing or dyeing, and
consequently not dependent upon the work-
manship with respect to their being valu-
able. It is to be observed that, in the case
in question (that is, where the usutpcr has
dressed the skin with something of value,
and it remains extent in his possession'), if
the proprietor be inclined to leave it in the
possession of the usurper, and take from
him a compensation for the value, some have
said that it is not permitted to him so to do,
because of the skin being of no value. — (It
is otherwise in the case of dyeing cloth, the (
dye being an article of value).— Some, again,
have said that this is not permitted to him
according to Ha nee fa ; — but that according
to the two disciples it is permitted to him ;
because when the proprietor refuses to take
back the dressed skin, and, leaving it in the
possession of the usurper, demands from him
a compensation, the usurper has it not then i
in his power to restore it ; and the case j
is, therefore, the same as if it had been |
destroyed, concerning which the two dis- I
ciples and Haneefa have disagreed.— Some '
have said that, according to the doctrine of j
the two disciples, the proprietor is to take i
from the usurper the value of the dressed I
skin, and return to him whatever increase it
may have received from the dressing, in the ;
same manner as in the case of a destruction ; i
whilst others have said that the proprietor
is entitled only to the value of an undressed
skin of an animal killed according to the
prescribed form.— All that has been advanced
on this topic proceeds on the supposition of j
the usurper having dressed the skin with ;
something of value ; for if he should have '
dressed it with something of no value, such ;
as by means of moisture, or the heat of the ,
sun, the proprietor is then entitled to take it >
from him without making him any return
since a dressing of that nature is equivalent !
to the washing of cloths. If, also, in this
case, the usurper destroy the skin, he is re-
sponsible for the value of it in its dressed
state. Some, on the contrary, have said that
he is responsible for the value of it in its
undressed state, because the dressing, as
being an acquisition of his own, ouuht not
to subject him to responsibility. The first i
opinion is adopted by most of the modern
lawyers ; and the reason of it is, trmt thr
quality of dressing, as being a dependent of
the skin, cannot be separated from it ; and j
consequently, when responsibility tak»s place |
with respect to the original [ the .skin] it i
must also operate with respect to the depen-
dent, namely, the quality [of dressing].
Cave of converting usurped wine into
vinegar, by means of mixing in it some valu-
able ingredient. — IP an usurper of wine con-
vert it into vinegar by throwing salt into it,
lawyers have said that, according to Haneefa,
the vinegar becomes the property of the
usurper without any thing being due from
him; whereas, according to the two dis-
ciples, the proprietor is entitled to take the
vinegar, making a compensation to the
usurper for the increase of the article b>
means of the salt (that is to say, he must
give him a quantity of vinegar equal to the
weight of the salt). If, on the contrary,
the proprietor wish to leave the vinegar
with the usurper, and take a compensation
from him for its value: the same two opinions
that have been given with regard to the case
above recited ot the dressing of a skin, pre-
vail with regard to this case If, also, the
usurper destroy the wine, he is no waya
responsible, according to Haneefa, — in oppo-
sition to the opinion of the two disciples, as
has been already recited in the case of dress-
ing a skin.— If the usurper convert the wine
into vinegar by means of pouring vinegar
into it, in that case it is related as an opinion
of Mohammed that, provided the wine be
turned into vinegar within the hour in which
the usurper poured the vinegar into it, it is
his property, without his being subject to
any compensation ; because the pouring of
the vinegar, in such case, is equivalent to a
destruction of the wine ; and wine is not an
article of value If, on the other hand, the
wine because of the quantity of vinegar
poured into it being small, should not be-
come vinegar until after the lapse of a con-
siderable period, it must in that case be
divided between the usurper and the pro-
prietor, according to its measure ; that is,
the usurper is entitled to a part of it in pro-
portion to the quantity poured in, and the
proprietor to a part of it in proportion to
the quantity of wine ; because in this case
the usurper has mixed his vinegar with
what eventually became the vinegar of the
proprietor ; and this (in the opinion, of
Mohammed) is not a destruction. In the
opinion of Haneefa, however, the vinegar,
in both cases, becomes the property of the
usurper ; because the immediate act of his
pouring vinegar into the wine is (according
to him) a destruction of it ; and this destruc-
tion does not, on any supposition, occasion
responsibility, because if considered as a de-
struction of wine/ it is a destruction of a thing
that bears no value, or if considered as the
destruction of vinegar, it is a destruction of
his own property, inasmuch as the vinegar be-
comes the pioperty of the usurper. According
to Mohammed the usurper is not responsible
where he destroys the liquor afler its having
become vinegar on the hour in which he put
the other vinegar into it ; for as, in this
case, he acquires a right in the whole, he of
course merely destroys his own property ;
whereas if he destory it where it has become
vinegar after a length of time, he is respon-
sible, since in this cane he destroys the pro-
perty of another. With respect to what has
been recited in Kadooree., some of our modern
lawyers have said that it is absolute ; that
is that in all conversions of usurped wine
into vinegar, the proprietor is entitled to
take it without making any compensation to
the usurper ; because the thing thrown into
the wine by the usurper is of no value, inas-
BOOK XXXVIII.]
SHAFFA.
547
much as, by the mixture of it with wine, it
becomes virtually wine, which is a thing of
no value. There are a variety of opinions
concerning this case, which the author of
this work has recited in the Kafayat al
Moontihee.
A person is responsible for destroying the
musical instruments, &c, or the prepared
drink of a Mussulman — IF a person break
the lute, the tabor, the pipe, or the cymbal
of a Mussulman, or spill his Sikker,* or
Monissaf, f he is responsible, the sale of such
articles being lawful according to Haneefa.
The two disciples maintain that he is not
responsible, they holding such article to be
unsaleable . Some say that this difference of
opinion obtains only concerning such musical
instruments as are merely used for amuse-
ment ; but that if a person break a drum
such as are allowed to be used in celebrating
a marriage, he is responsible, according to
all our doctors. Some also, say that in
decreeing responsibility, opinions are giv^n
according to the doctrine of the two disci-
ples. By ^ikker is understood the juice of
unripe dates, which is suffered to ferment
and acquire a spirit without boiling ; and by
Monissaf, the juic* of unripe grapes, boiled
until only one half remain. Concerning
liquor boiled in the smallest degree, which
is termed Bazik.t there are two opinions
reported from Hancefo, — one, that it is a
lawful subject both of sale and responsi-
bility,— and another; that it is not so. The
arguments of the two disciples on this point
are, — FIRST, that these articles are all made
for the purpose of doing that which is offen-
sive to the LAW, and therefore are not valu-
able property. -SECONDLY, what the person
in question has done was in reformation of an
abuse; and as we are directed to reform abuses
whereever they occur, he therefore is not re-
sponsible, in the same manner as he would
not be responsible, if he were to destroy those
articles by order of the magistrate The
argument of Haneefa is that the articles in
question are property, as being capable «of
yielding a lawful advantage, although they
be also capable of being used unlawfully, and
therefore resemble a female singer — whence
there is no reason why they should not be
considered as valuable property. As, there-
fore, those articles are (according to Haneefa)
of a valuable nature, a reparation is due
from the destroyer of them; and if a person
were to sell them, the sale is lawful ; for
the obligation of reparation, and the legality
of sale, depend upon an article being pro-
perty, and capable of valuation, circum-
stances which exist with respect to the arti-
cles in. question. The reformation of abuses,
* A sort of intoxicating liquor.
t Half boiled wine. (These terms are fully
explained in Book XLVL, treating of Pro-
hibited Liquors,
t A species of date wine.
moreover, is committed to the hands of ma-
gistrate ; as they are entabled, by the nature
of their office, to carry it into effect : but it is
not entrusted to others, excepting merely to
the exent of verbal instruction and advice.
And must compensate for them by paying
their intrinsic value — PROCEEDING upon the
doctrine of Haneefa, the destroyer in the
case here considered, is responsible for the
value the articles bear in themselves, inde-
pendent of the particular amusement to
which they contribute. Thus if a female
singer (for instance) be destroyed, she must
be valued merely as a slave girl ; and the
same of fighting rams, tumbling pigeons,
game cocks, or eunuch slaves ; in the other
words, if any of these be destroyed, they
must be valued and accounted for at the
rate they would have borne if unfit for
the light and evil purposes to which such
articles are commonly applied ; and SD like-
wise of pipes, tabors, and other musical
instruments. It is to be observed that, in
the case of spilling Sikker or Monissaf, the
destroyer is responsible for the value of the
article, and not for a similar, because it does
not become a Mussulman to be proprietor of
such articles. If, on the contrary, a person
destroy a crucifix belonging to a Christian,
he is responsible for the value it bears as a
crucifix ; because Christians are left to the
practice of their own religious worship.
The usurper of a Modabbira is responsible
for her value if she die in his possession ; but
not the usurper of a Mokatiba. — IF a person
usurp the Modabbira of another, and she die
in his possession, he is responsible for her
value; whereas, if a person usurp the Am-
Wdlid of another, and she die in his pos-
session, he is not responsible. This is
according to Haneefa. The two disciples
maintain that the usurper is responsible for
the value in either instance The reason of
this difference of opinion is, that a Modabbira
is universally admitted to be valuable pro-
perty ; and an Am-Walid is not valuable,
according to Haneefa ; whereas the two
disciples hold an Am-Walid to be valuable.
The arguments on both sides havg been
already detailed at length in treating of
Manumission.
BOOK XXXVIII.
OF SHAFFA.
Definition of Sha/fa.— SHAFFA, in the
language of the LAW, signifies the becoming
proprietor of lands sold for the price at
which the purchaser has bought them, al-
though he be not consenting thereunto. This
is termed Shaffa-, because the root from
which Shaffa is derived signifies conjunc-
tion, and the lands sold are here conjoined
to the land of the Shafee, or person claiming
the right of pre-emption.
548
SHAFFA
[VoL.IIL
Chap. I. — Of the Person to whom the
Right of Shaffa appertains
Chap. II.— Of Claims to Shaffa; and of
Litigation concerning it.
Chap. III. — Of the Articles concerning
which Shaffa operates.
Chap. IV.— Of circumstances which in-
validate the Right of Shaffa.
CHAPTER I.
OF THE PERSONS TO WHOM THE RIGHT OP
SHAFFA APPERTAINS.
The right of Shaffa appertains to a part-
ner in the property, a participator in the
mmunities of the property, and u neighbour.
— THE right of Sh ffa appertains — I to a
partner in the property of the land sold, —
II. to a partner in the immunities and
appendages of the land (such as the right to
water and to roads) : and III, to a neigh-
bour.— The right ot Shaffa in a partner, is
founded on a precept of the Prophet, who
has said, "The right of SHAFFA holds in a
partner who has not divided off and taken
separately his share." — The establishment of
it in a neighbour is also founded on a saying
of the Prophet, "The neighbour of a house
has a superior right to that house : and the
neighbour of lands has a superior right to
those lands and if he be absent, the seller
must wait his return ; provided, however,
that they both participate in the same road;"
—arid also, "A neighbour has a light, supe- !
rior to that of stranger, in the lands adja- !
cent to his own."-— Shafei is of opinion that
a neighbour is not a Shafee;* because the
Prophet has said, SHAFFA relates to a thing
held in joint property, and which has not
been divided off:" when, therefore, the pro-
perty has undergone a division, and the
boundary of each partner is particularly dis-
criminated and a sparate road assigned to
each, the right of Shaffa can no longer exist.
Besides, the existence of the right of Shaffa
is repugnant to analogy, as it involves the
taking possession of another's property con-
trary to his inclination ; whence it must be
Confined solely to those to whom it is parti-
cularly granted by the LAW. Now, it is
granted particularly to a partner ; but a
neighbour cannot be considered as such ; for
the intention of the LAW, in granting to it a
partner is merely to prevent the inconveni-
ences arising from a division ; since if the
partner were not to get that share which is
the subject of the claim of Shaffa; a new
purchaser might insist upon a division, and
thereby occasion to him a great deal of un-
necessary vexation ; — but as this argument
does not hold good in behalf of a neighbour,
he therefore is not entitled to the privilege
• In other words, " is entitled to the
ri«ht of SHAFFA;"— Shaffa being the term
used to express the person endowed with that
right.
of shaffa. — We,* on the contrary, allege
that the precept of the Prophet, already
quot d, is a sufficient ground for establishing
the right of Shaffa in a neighbour. — Besides
the reason for establishing this right in a
partner is, the circumstance of his property
being continually and inseparably adjoined
to that ot a strangerf (namely, the pur-
chaser), which is injurious to him, because
of th<» difference of a stranger's disposition,
and so forth; and certainly a greater regard
is due to the partner than to the stranger
who may have made the purchase, since the
vexation that would ensue to the partner
from forcing him to abandon a place which;
from long residence, may have acquired his
affections, would doubtless be greater than
that to which the stranger is subjected; for,
although he may thus be dispossessed, con-
trary to his inclination, of a property over
which he has acquired a right by purchase,
yet still the grievan:e is but inconsiderable,
since he is not dispossessed without recevi-
ing a due consideration: — and as all these
reasons equally hold in behalf of a neigh-
bour, he is therefore entitled to the privilege
of Shaffa as well as a partner. — The reasons,
moreover, on which Shafei grounds the right
of a partner, and the distinction he makes
betwixt a partner and a neighbour, can by
no means be admitted: since the inconveni-
ences attending a division of property are
allowed by the LAW ; and are not of such a
nature that the preventing of them should
justify the injury which must be committed
in depriving another of his property contrary
to his inclinations. — The order in which we
have classed the persons entitled to the pri-
vilege of Shaffa is founded on a precept of
the Prophet, who has said, "A partner in
the thing itself has a superior right to one
who is only a partner in its appendages ;
and a partner in the appendages of the pro-
perty precedes a neighbour." Besides, the
conjunction occasioned by a partnership in
the property itself is of all others the strong-
est ; and next to it is that occasioned by a
partnership in the appendages (since here
the party participates in the immunities of
the property, which is not the case with a
neighbour) : and a superiorly of right in
every instance, depends on the strength, in
the case, or fundamental principle. — The
vexations, moeover, and inconvenience
arising from a division may be admitted as
an additional argument, although it be not
of such weight as to form a ground for injury
to another.
No person can claim it during the existence
of one who has a superior right — A PARTNER
merely in the road or the rivulet, or a neigh-
bour, cannot be entitled to the privilege of
Shaffa during the existence of one who is a
• Meaning, the Haneefites (in opposition
to the followers of Shafei).
t Arab. Dakheel ; meaning, literally, "an
arriver ; i. e. a new comer.
BOOK XXXVIH.—CHAP. I.]
SHAFFA.
549
partner in the property of the land ; for
his is the superior right, as has been already
shown.
Unlesshe first relinquish it, when the title
devolves to the next in succession. — IF a
partner in the property of the land relin-
quish his right of Shaffa, it devolves next
to him who is a partner in the road ; and if
he also relinquish his right, it fails to the
Jar Molasick, or person whose house is
situated of the back of that which is the
object of Shaffa, having the entry to it by
another road. Aboo Yoosaf is of opinion
that during the existence of partner in the
ground, whether he resign or insist upon his
right, no other person is entitled to the pri-
vilege of Shaffa ; for by his existence all
others are excluded ; and whilst the excluder
remains the excluded have no right; as holds
in inheritance. — The ground on which the
Zahir Rawayat (first quoted as above) pro-
ceeds is, that the cause of the privilege of
Shaffa exists with respect to each of the
above-mentioned persons. The partner, how-
ever, has the superior right. Upon his re-
linquishing it, therefore, the one who is next
to him in order of precedence will assume
it ; — in the same manner as holds with respect
to debts contracted during health, when they
came in competition with debts contracted in
sickness ; that is the former are first dis-
charged ; but if the creditor whose debt was
contracted in health relinquish his claim,
the estate of the deceased is then appro-
priated to discharge the claim of him whose
debt was contracted under sickness.
A person who is a joint proprietor of only
apart of the article has a title superior to a
neighbour. — A PERSON who is a joint proprie-
tor of only a part of the property sold (such
as a partner in a particular room or wall of a
house), as he has a right superior to one who
is neighbour to that particular part, so like-
wise has he a right superior to one who is a
neighbour to the rest of the house. This is
an approved maxim of Aboo Yoosaf ; for the
conjunction holds stronger in the case of a
person who is a joint proprietor of only a part
of the house, than in that of one who is
merely a neighbour. It is necessary that the
road or rivulet, the joint participation in
which gives a claim to the privilege of Shaffa.
be private. By a private road is understood
a road shut up at one end ; and by a private
rivulet we understand a stream of water in
which boats cannot pass and repass ; for
otherwise it is a public river. (This is ac-
cording to Haneefa and Mohammed. It is
reported from Aboo Yoosaf, that a private
rivulet is a stream which affbicis water to two
or three pieces of ground; but if it exceed
that, it is a public one).
The relative situation of the property de-
termines the right, when claimed on the plea
ofneighbourhood.—lF a house be sold, situated
in a short lane, shut up at one end, commu-
nicating through another lane, shut up also
at one end, but of greater extent, in this case
the inhabitants of the short lane only are en-
titled to the privilege of Shaffa ; whereas,
if a house situated in the long lane be sold,
the inhabitants of both lanes are so entitled.
The reason of this is, that the right of egress
and regress in the short lane is participated
only by its own inhabitants, whereas the right
in the long lane appertains equally to the in-
habitants of both ;— as has been already ex-
plained under the head ot "Duties of the
KAZEE." The same rule also holds good in
the case of a small rivulet issuing out of
another.
THE laying of beams on the wall of a house
gives a right of Shaffa from neighbourhood
but not from partnership, since this act does
not constitute a partnership in the property
of the house. In the same manner, also a
person who is a partner in a beam laid on the
top of the wall is only held in the light of a
neighbour
The right of all the Shafees (claiming upon
equal ground) is equal, without any regard to
the extent of their properties.— WHEN there
is a plurality of persons entitled to the pri-
vilege of Shaffa, the right of all is equal, and
no regard is paid to the extent of their several
properties Shafei maintains that the right
of Shaffa in this case is possessed by the
parties in proportion to their several proper-
ties ; because Shaffa is one of the immunities
of their property, and must therefore be held,
like the profits of trade, the produce of lands,
the offspring of slaves, or the fruit of trees,
in proportion to their respective shares in the
joint property. The argument of our doctors
is, that the parties being all equal with re-
spect to the principle on which their right of
Shaffa is grounded (namely, a conjunction
with the lands sold) they are all conse-
quently equal in the right itself,— whence if
only one partner were present, however in-
considerable his share might be, he would be
entitled to the whole of the Shaffa.— In reply,
moreover, to the arguments used by Shafei,
it is to be observed that the disseising another
of his property, contrary to his inclination,
is not one of the immunities of property,
and is verv different from the profits of
trade, the fruits of trees, or the like, which
are produced absolutely from the property
itself
IF one of the parties relinquish his right
it devolves to the others, and is participated
equally amongst them ; for although the
grounds of their right were complete, yet
they were obstructed from enjoying the
entire privilege by the intervention of his
right : but that right being resigned, the
abstruction consequently no longer remains-
// some be absent, the Shaffa is adjudged
equally amongst those who are present,
but the absentee appearing receive their
shares — IF some of the partners happen to
be absent, the whole of the Shaffa is to be
decreed equally amongst those who are
present ; for it is a matter of uncertainty
whether those who are absent would be in-
ilined to demand their right ; and the rights
of those who are present must not be pre-
550
SHAFFA
[VOL III
ju diced on a mere uncertainty — If, how-
ever, the Kazee should have decreed the
whole of the Shaffa to one who is present,
and an absentee afterwards appear and claim
his right, the Kazee must decree him the
half; and so likewise if a third appear, he
must decree him one third of the shares
respectively held by the other two in order
that thus an equality may be established
amongst them
If the person present should relinquish his
Shaffa after the whole has heen decreed to
him by the Kazee, and the absentee after-
wards appear, he is in this case entitled to
claim only one half because the decree
which the Kazee has passed, awarding the
whole to the other, absolutely extinguished
one held of the absentee's right — U were
otherwise if the person present relinquish
his right previous to any decree being passed
by the Kazee, and afterwards the absentee
appear : for in this case he [the absentee] is
entitled to the whole of the Shaffa.
The right does not operate until after the
sale of the property. — THE privilege of
Shaffa is established after the sale ; for it
cannot take place until it be manifest that
the proprietor is no longer inclined to keep
his house ; and this is manifested by the sale
of it. It is therefore sufficient, m order to
prove the sale and establish the privilege of
Shaffa, that the seller acknowledge the sale,
although the person said to be the buyer
deny it.
Nor until it be regularly demanded.— THE
right of Shaffa is not established until the
demand be regularly made in the presence of
witnesses ; — and it is requi>ite that it be
made as soon as possible after the sale is
known ; for the right of Shaffa is but a feeble
right, as it is the disseising another of his
property merely in order to prevent appre-
hended inconveniences. — It is therefore re-
quisite that the Shafee without delay dis-
cover his intentions, by meking the demand ;
which must be done in the presence of wit-
nesses, otherwise it cannot be afterwards
proved before the Kazee.
Neither does the property go to the Shafee
but by the surrender of the purchaser, or a
decree of the magistrate.— WHEN the demand
has been regularly made in the presence of
witnesses, still the Shafee does not become
proprietor of the house until the purchaser
surrender it to him, or until the magistrate
pass a decree ; because the purchaser's pro-
perty was complete, and cannot be trans-
ferred to the Shafee but by his own consent,
or by a decree of a magistrate ; in the same
manner as in the case of a retraction of a
grant, where the property of the grantee
being completely established by the grant
it cannot be transferred to the granter, but
by the surrender of the grantee, or by a
decree of a magistrate. The use of this law
appears in a case where the Shafee, after
having preferred his claim before witnesses
previous to the decree of the magistrate or
the surrender of the purchaser, dies, or sells
the house from whence he derived his right ;
— or where the h>use adjoining to that to
which the right or Shaffa re'ates is sold for
in the first of these instances the house is not
a part of his hereditaments, because it was
not his property ; and the right of Shaffa
fails in the second instance, as the funda-
mental principle of that right is extinguished
previous to his becoming tue proprietor ; and
in the tnird case, he has no right of Shaffa
with respect to the house which is sold. s>ince
the house from which h<> would have derived
that right is not his property.
CHAPTER II.
OF CLAIMS TO SHAFFA, AND OF LITIGATION
CONCERNING IT.
The claims are of three kinds. I, The
immediate claim (which must be made on
the instant, or the Shafee forfeits his title).
— CLAIMS to Shaffa are of three kinds — The
first of these is termed Talb Mawasibat, or
immediate claim, where the Shafee prefers
his claim the moment he is apprised of the
sale being concluding ; and this it is necessary
that he should do, insomuch that if he make
any delay, his right is thereby invalidated :
for the right of Shaffa is but of a feeble
nature : as has been already observed ; and
the Prophet, moreover, has said, "The right
of SHAFFA is established in him who prefers
his claim without delay."
IF the Shafee receive a letter which, either
in the beginning or the middle, apprises him
of the circumstance of his Shaffa, and he
read it on in the end, his right of Shaffa is
thereby invalidated. Many of our modern
doctors accord in this opinions ; and it is
in one place recorded as the doctrine of
Mohammed — In another place, however, it
is reported from him, that if the man claim
his Shaffa in the presence of the company
amongst whom he may be sitting when he
receives the intelligence, he is the Shafee,
his right not being invalidated unless he
delay asserting it till after the company
have broke up. Both these opinions are
mentioned in the Nawadir ; — and Koorokhee
passed decree agreeably to the last quoted
report ; because the power of accepting or
rejecting the Shaffa being established, a
short time should necessarily be allowed for
reflection ; in the same manner as time is
allowed to a woman to whom her husband has
given the power of choosing to be divorced
or not.
IF the Shafee. on hearing of the sale,
exclaim " Praise be to GOD I" or " There
is no power or strength but what is derived
from Gop I" or " GOD is pure 1" his right
of Shaffa is not invalidated, insomuch that
if, immediately on pronouncing these words
he without delay claim his Shaffa, he will
accordingly get it ; because the first of these
is considered as a thanksgiving on his be ing
FOOK
.-CHAP. II.]
SHAFFA
551
freed of the neighbourhood of the seller ;
the second (which is an expression of ad-
miration) is supposed to proceed from the
astonishment with which he is struck at the
intention manifested by the seller of doing
a thing which would be vexatious to him ;
and the last is considered as an exclamation
prefatory to further discourse. None of
these expressions, therefore, can imply a
refusal or rejection of the Shaffa. — In the
same manner also, if, on receiving the news
of the sale, he ask "Who is the purchaser,
and how much is the price !" it does not
invalidate his right ; since these questions
cannot be considered as a refusal, but on the
contrary it may be concluded from them
that if the price be reasonable and a
purchaser a person whom he would not like
as a neighbour, he will afterwards claim his
right of Shaffa
IT is not material in what words the claim
is preferred : it being sufficient that they
imply a claim Thus if a person say "I
have claimed my Shaffa, " or "I shall claim
my Shaffa," or "I do claim may Shaffa," all
these are good ; for it is the meaning, and
not the style or mode of expression, which
is here considered.
WHEN news of the sale is brought to the
Shafee, it is not necessary, according to
Haneefa, that he assert his intention of
claiming the Shaffa before witnesses, unless
the news be communicated to him by two
men or one man and two women, or one
upright man. The two disciples maintain
that he ought to declare his intentions before
witnesses as soon as the news is communi-
cated to him by one person, being either a
freeman or a slave, a woman or a child, —
provided, however, that the person be, in
his belief, a true speaker — It is otherwise
where a woman is informed that her husband
has given her the power of divorcing her-
self; for in that case it does not singnity who
is the informer, or what is his character.
IF the person who gives the intelligence to
the Shafee be himself the buyer it is not
(according to Haneefa) in such case neces-
sary that he be an upright man; because he
is the opponent ; and uprightness is not
requisite in him.
//. The claim by affirmation and taking
to witness (which must be made as soon as
conveniently may be after the other) -THE
second mode of claim to Shaffa is termed the
Talb Takreer wa hh-had, or claim by affirma-
tion and taking to witness ;— and t'lis also is
requisite ; because evidence is wanted in
order to establish proof before the magis-
trate ; and it is probable that the cl.imant
cannot have witnesses to the Talb Mawasi-
bat, as that is expressed immediately on
intimation being received of the sale. It is
therefore necessary afterwards to make the
Talb Ish-had wa Takreer, which is done by
the Shafee taking some person to witness, —
either against the seller, if the ground sold
be still in his possession, — or against ' the
purchaser, — or upon the spot regarding
which the dispute has arisen ; and upon the
Shafee thus taking some person to witness,
his right of Shaffa is fully established and
confirmed. The reason of this is, that both
the buyer and seller are opponents to the
Shafee in regard to his claim of Shaffa ; the
one being the possessor, and the other the
proprietor of the ground ;— and the taking
evidence on the ground itself is also valid :
because it is that to which the right relates.
If the seller have delivered over the ground
to the buyer, the taking evidence against
him is not sufficient, he being no longer an
opponent; for having neither the possession
nor the property, he is as a stranger. The
manner of claim by affirmation and taking
to witness is, the claimant saying "Such a
erson has bought, such a house, of which I
am th? Shafee ; I have already claimed my
privilege of Shaffa, and now again claim it ;
be therefore witness thereof " (It is reported
from Aboo Yoosaf that it is requisite the
name of the thing sold, and its particular
boundaries, be specified; because a claim is
not valid unless the thing demanded be
precisely known )
And III claim by litigation —THE third
mode of claim to Shaffa is termed Talb
Khasoomat, or claim by litigation,— which
is performed by the Shafee petitioning the
Kazee to command the purchaser to surrender
up the ground to him ; the method of doing
which will hereafter be particularly ex-
plained
A delay in the litigation does not invalidate
the claim — IF the Shafee delay making
claim by litigation, still his right does not
drop, according to Haneefa. Such also is
the generally received opinion ; and decrees
pass accordingly. There is likewise one
opinion recorded from Aboo Yoosaf to the
same effect Mohammad maintains that if
the Shafee postpone the litigation for one
month after the taking of evidence, his right
drops. This is also the opinion of Ziffer ;
and it is related as an opinion of Aboo
Yoosaf, that the righr of the Shafee becomes
null if he delay the litigation after the
Kazee has held one court ; for, if he willingly
and without alleging any excuse, omit to
commence the litigation at the first court
held by the Kazee, it is a presumptive proof
of his having declined it. The reasoning on
which Mohammed found his opinion in this
particular is, that if the right of the Shafee
was never to be invalidated by his delaying
the litigation, it would be very vexatious to
the buyer ; for he would be prevented from
enjoying his property, in the apprehension
of being deprived of it by the claim of the
Shafee. — " I have therefore (says Mohammed
limited the delay that may be admitted to
one month, as being the longest allowed
term of procrastination." — In support of the
opinion of Haneefa, it is urged that the right
of the Shafee being firmly established by the
taking of evidence, it cannot be extinguished
but his own rejection, openly declared: —
in the same manner as hold in al) other
552
SHAFFA
[VOL III.
matters of right.— With respect to what is
mentioned by Mohammed, that "the delay
would be vexatious to the buyer," it is of no
weight ; for in case of the absence of the
bhafee, his right is net invalidated by the
litigation being delayed ; and the vexation
sustained by the buyer from the delay is
equally the same, whether the Shafee be
present or absent
Particularly, j/ it be occasioned by the
absence of the magistrate.— Iv it appear that
the Kazee was not in the city, and that on
that account the litigation was delayed, the
right is not invalidated, according to the
concurrent opinion of the three abovemen-
tionsd sages; for the litigation can only be
made in the presence of the Kazee ; and the
delay is therefore excused.
Rule? to be observed by the magistrate on
an appea/.— WHEN the Shafee goes to the
Kazee and claims his right, alleging tnat
' such a person has purchased a house, in
which he has the right of Shaffa," the Kazee
must first question the purchaser (the defen
dant in the cause) concerning the property
on which the Shafee grounds his right of
Shaffa; an -I if he acknowledge it, this is a
sufficient ground for the Kazee passing a
decree : — but if he deny it. the Kazpe must
then order the Shafee to briny; witnesses to
prove his property ; for the possession, which
is apparent, may be owing to other causes
than property ; and a thing which is thus
doubtful cannot be admitted as a proof to
the detriment of another, Kadooree alleges
that the Kazee, before he app lies to the de-
fendant, ought to ask the plaintiff regarding
the situation of the house and its boudaries";
because if a man sue for the property of a
house, it is requisite that he describe its
situation and boundaries ; and therefore he
must do the same in claiming his right of
Shaffa. When he has done this, the Kazee
must next interrogate him regarding the
grounds of his right of Shaffa ; for the
ground of Shaffa are various, and possibly
he may set forth ground according to his
own imagination, which do not, in reality,
constitute any ground If he reply that
"he is the Sliafee, because of his house
being situated next to that which is the
present object of dispute," his claim (as
Khasaf observes) is complete. It is also
mentioned tn the Fatavee, that he must
describe the boundaries of the house from
whence he deilveshis right to the Shaffa in
question.
And the mode prescribed for his examining
the parties.— IF the Shafee, being unable to
bring witness, require that the purcha*er
be put to his oath, it must be ten lered merely
according to the best of his [the purchaser's]
know edge (that is he must be required to
say, "By Gop, I know not that the plaintiff
is the proprietor of the house on which he
founds his claim of Shaffa") ; because his
deposition relates to a thing which is in the
hand of another, and therefore he can only
swear as to his own knowledge, and not posi-
tively as to the fact in question, namely,
whather the house be, fur certain, the pro-
perty of the plaintiff or not. - If the pur-
chaser refuse to swear, or the Shafee bring
evidence, his property is proved in that
house from which he derives his claim of
Shaffa, and the neighbourhood of lhat house
to the one in dispute is also proved The
Kazee must next ask the purchaser whether
he has bought the house or not? and if he
deny it, the Kazee must order the Shaffer t<>
bring witnesses to proxv the purchase ; for
the Shaffa cannot be established until the
sale be proved ; which must be done by
witnesses.— If the Shafee cannot bring wit-
nesses, the Kazee must administer an oath
to the purchaser to this effect, "he has
not purchased the house," or that "the
plaintiff is not entitled ti the privilege of
Shaffa in the manner in which he ^ has
claimed it ;" for here he swears regarding
an act committed by himself; and relative
to a thing which is in his own possession ;
and therefore it is necessary that the oath
be positive as to the certainty of ihs fict
The caus'<? mii.y be litigated and deteimmed
independent of the price of the property in
depute— The Shafee rmy litigate his claim
of Shaffa although he do not produce in
court the price o' thi ground in dispute: —
but when the K\zee has decreed to him the
privilege of Shaffa, it is necessary that he
bring the price This is the doctrine of tho
Zahir Rawayet. as quoted in the Mabaoot
It is reported, from Mohammad that the
Kazee ought not to pass the decree until the
Shafee produce the price (and the same is
also cited by Hasan from IIan»~efa); because
possibly the Shafee may be indigent, and
the Kazee must therefore delay the decree,
in order that the purchaser may not lose hit
property — The reason ass'gned in suppori
of the first opinion quoted from the Zahii
Rawayet, is that the price does not become
due from the Shafee to the purchaser unti
the Ka/ee have parsed his decree; and ai
the purchaser is not obliged to surrender up
the ground previous to the decree, so in th<
same manner the Shafre (as has been men
tioned above) is umler no necessity of pre
viously producing the pric-c: -nor can then
be any apprehension of the purchaser losinj
his property, since he has the right of deten
tion, as will more particularly be shown :i
the ensuing examples
But the defendant may retain the on
until the other be produced —WHEN, pre
vious to the Shafee producing the price, th
Kazee has commanded the purchaser to deli
ver up the ground [to the Shafee], still h
may retain it in has own hand until th
price be brought to him
Thi' privilege is not forfeited by a belay i
the payment.— IF the Shafee delay to pa
the price to the purchaser, after the Kaze
has ordered him, still his privilege of Shaff
is not invalidated ; for it has become firml
established by the litigation and the decre
of the Kazee.
BOOK XXXVIII.— CHAP. II.]
SHAFFA
553
The seller may be sued whilst the house is
in his possession. — IF the Shafee bring the
seller into court whilst the house is still in
his possession, he [the Shafee] may com-
mence his litigation against him, and the
seller may retain the house in his own pcs-
session until he receive the price from the
Shafee. The Kazee, however, is not in this
case to hear the evidence until the purchaser
also appear, as for his pie^nre thrie is a
twofold reason ; foi FIRST, the purchaser is
proprietor of the ground, and the seller the
possessor ; and as the decree of the Kazee
must be against both, both therefore must be
present (It is otherwise where the pur-
chacer has obtained possession ; for then
there can be no occasion for the presence of
the seller, as he has become like a stranger,
having neither the property nor th*. posses-
sion.) SECONDLY, the sale or bargain which
had been concluded in favour of the pur-
chaser is to he dissolved by decree; and it is
therefore requisite that he be present, in
order that the Kazee may decree the dissolu-
tion against him.
An ag nt for the purchaser may be sued
(before delivery to his constituent). —If an
agent on behalf of another purchase ground,
the Shafee must sue the agent. If, however,
the agent have delivered over the ground to
his constituent, the Shafee must not insti-
tute his suit against the agent (as he is
neither the propietor nor the possesor), but
against his constituent; for the acent then
stands as the seller, and his constituent as
the purchaser; and when (as has been al-
ready explained) the seller delivers up the
ground to the purchaser, the Shafee's suit is
against the latter.
And so also an agent for the seller, or an
executor.— Ir the agent of a person who is
absent sell ground on account of his con-
stituent, Ihr Shafee may claim his light and
obtain the ground fiom the agent, provided
it be in his possession. The same rule also
holds in the case of an executor authorized
to sell lands.
rhe Sh'f'e, after gaining his suit, has an
option of inspection, and also an option from
defect. — IF the Ka?ee decree, in favour of
the Shafee, at a time when he has not yet
St-cii the propel ty in tliopute, he [the Slid fee]
has an option of inspection ; and if any
defect be afterwards discovered in it, he has
an option from defect * and may, if he
please, reject it, notwithstanding the pur-
chaser should have excepted such defect
from the bargain, or, in other words, should
have exempted the seller from responsibility
for such defect ; because, as the transfer of
property by right of Shaffa is the same as a
transfer of property by sale, the Shafee has
therefore, under both the above circum-
bUnces, the power of rejection, in the same
manner as_any other purchaser ;_ and this
*Option of inspection and option from
defect are fully explained under the head of
SALE (See Vol. II. p. 255 and 258 )
power in the Shafee is not destroyed by the
purchaser having seen the property, or
having so exempted the seller ; for he [the
purchaser] was not deputed by the Shafee,
and his act, of course, does not affect the
Shafee's power of rejection.
Secti n.
Of Disputes relative to the Price.
Jn disputes concerning the price , the asser-
tion of the putrJiJiti), ii/mn oafJi* must be
credited.— -Iv the purchaser and Shafee
differ regarding the price, the former al-
leging one hundred, for instance, and the
latter only eighty, and neither of them be
able to bring any evidence, the assertion
of the purchaser must be credited in pre-
ference to that of the Shafee; becavse here
the Shafee al'eges a right in the purchaser's
property for a sum short of one hundred,
which the purchaser denies; and, according
to the LAW, the declaration of a defendant,
upon oarh, must be credited: — neither is
the oath of both parties* required in this
case for the Shafee is plaintift against the
purchaser, but the purchaser is not plaintiff
against the Shafee, he being at liberty either
to claim or resign the thing in question ; and
it is a rule that both parties cannot be called
on to swear, unless whore both are in so Tie
manner plaintiff, or in some particular cases,
where it is expressly ordained by the LAW,
neither of which reasons e>ist in the
sent instance.
And so likewise evidence produced by
— IF both the purchaser and the Shafee
duce evidence, that produced by the Shafee
must be credited, according to Haneefa and
Mohammed. — Aboo Yoosaf on the contrary
maintins that the evidence* produced bv
the purchaser must be credited; because it
proves a larger sum than the other, and it
is a general rule that regard is had to the
evidence which proves the most , — as where,
for instance, a difference aiists regarding the
amount of th? price betwixt a pu i chase r
and a sellers or an agent and his constituent,
or a person who buys a thing frrm an infidel
enemy, and the original proprietor of the
thing ; — in all which cases, if both parties
bring evidence, the evidence of him who
proves the largest sum is admitted. — The
difference hcic ail u Jed to, betwixt one who
buys a thing from an infidel enemy, and the
former proprietor of the thing, will be better
elucidated by the following case. — A Mus-
sulman merchant goes upon a voyage, ar-
rives in the country of the infidels, receives
their protection, and, whilst he remains
there purchases a slave, who had formerly
belonged to Zeyd, from an infidel, who had
carried him away as his plunder ; and, on
the merchant's return, Zeyd claims his
slave, offering the price which the merchant
had given to the infidel ; but a difference
arising betwixt them regarding the amount
pre-
him.
pro-
* Arab. Tahalif.— For a full explanation
of this term see p. 417 of this Vol.
554 SHAFFA
of the price, both adduce evidence to prove
the sum they asserted ;— in which case the
evidence of the merchant, which goes to prove
the largest sum, is admitted, in preference
to that of Zeyd. — In support of the opinion
maintained by Haneefa and Mohammed on
this point, two arguments may be urged —
FIRST, the evidence of the Shafee subjects
the purchaser to an obligation ; whereas the
evidence of the purchaser does not subject
the Shafee to any obligation, since he has it
in his option to take the thing in dispute or
not; and the intention of establishing evi-
dence is to impose an obligation. -SECONDLY,
if it be possible, a regard should be paid to
the evidence of both parties; and here it is
possible, for there is no absolute contradic-
tion in this allegations of the two parties,
since the purchaser may perhaps have twice
purchased the thing; and both purchases
being thus apparently proved, it remains in
the option of the Shafee to prefer which-
ever he pleases ; that is to say, if the pur-
chaser have bought the thing twice, viz
once for one thousand, and another time for
two thousand, the Shafee his it in his option
to take the thing for whichever of these
prices he thinks proper -—With respect to
the analogy urged by Aboo Yoosaf be-
twixt the case in question and that of a
purchaser and a seller differing concerning
the amount of the price, it cannot be ad-
mitted ; for if two different sales tak* place
betwixt the parties, one immediately after
the other, regarding the same thing, the one
sale invalidates the other : and it being thus
impossible to admit the allegations and evi-
dence of both parties that evidence which
proves the largest sum must be superior ;
and the superiority is therefore allowed to
the evidence of the seller over that of the
purchaser, because it proves the largest sum.
In tae case of the Shafee, on th^ contrary,
as the max in of one sale invalidating the |
other cio:s not affect him both the sales hold j
good with respect to him ;— whence if the I
purchaser choose to purchase the same thing I
twice, the Shafee has it in h's option to take
it for either of the prices, as has been men-
tioned above. Beside, as an agent is sup-
posed to stand in the place of a seller, and
his t'ijustiiiitfiit in iliat uf a |uu..lut.cr, the
same laws will of course hold with respect
to them as are established in the case of a
buyei and a sel'er ; and this is confirmed by
a precept quoted from Mohammed, in which
it is expressly said, that "the evidence |
brought by the constituent is preferable." — |
With respect, also, to the analogy urged [by j
Aboo Yoosaf] betwixt the case in question j
and that of a dispute between the purchaser I
of a slavo from a i infidel and the former j
master of such slave, it is entirely unfounded
since it cannot be admitted that the effect of
the branch is the same as that of the root,
as W2 find it expressly diclared in the Sayir
Kabser; tint th; evidence adduced by the
for.n*r mister of the slave is superior But
evji ai nittiijj th; a'^jvi-.-nriti^.i^ J propo- i
[VOL. Ill
sition still the aigtiment is of nu weight,
for in the case of the merchant two bargains
could not be made successively without the
one of them being invalidated; whereas in
the case of the Shafee (as we have already
observed) both bargains may be effective.
And also his assertion, if the seller allege
a larger amount. — IF the seller and purchaser
differ regarding the price, and the seller
(supposing him not yet to have received it)
allege the smallest sum, the Shafee may take
the house for the price alleged by the seller
the assertion made by him of a smaller sum
being considered as an abatement in favour
of the purchaser, of which fhe Shafee is
entitled to avail himself. We shall have
occasion in the ensuing section to explain
the ground on which this law is founded ;
and shall therefore in this place assign
only one reason, namely, that the ricjht-
given to the Shafee over the seller arises
from his own declaration, in saying,
11 1 have sold it for such a price ;" and
therefore, so long as he has not received the
price, his allegation must b<? credited re-
garding it,— whence the Shi fee is entitled
to take the property at a rate agreeable to
his assertion.-— If, on the contrary, the seller
allege the largest sum, both parties must b:
required to swear, and the contract of sale
is then dissolved. If, in this case, either of
them refuse to swear, that price is established
which has been set forth by the other, and
the Shafee is consequently entitled to take
the house for that amount. If, ^on the other
hand, both parties swear, the Kazee, at the
requisition of one or both of them; must
dissolve the sale; and the Shafee (whose
right is not be prejudiced by such dissolu-
tion) may then take the house for th» amount
alleged by the seller.
IF the seller should have received the
price, the Shafee may take the house for the
amount set forth as the price by the pjr-
chiser; a-iil tare the all. g^tion i»f the Silkr
is of no weight or credit, for leaving received
thf price, the sale, as far as relates to him.
is finally concluded, an 1 he beco nes o ily as
a stranger ; the dispute then lying betwixt
the purchaser and the Shafee, ragarding
which we have already been very explicit
in a foiuier |uit of this section.
Case in which the seller's asset tivn rnav b*
credited cone •mil 3 the price — IF the Shafee
be not apprized of the seller's having received
the price and the s>ller should say, "I have
sold the property for one thousand dirms,
which I have received," in this case the
Shafee is entitled to take the property for
one thousand dirms ; for, as the beginning
of the seller's speech, in which he acknow--
le-lges the *ale, creates the Shafee'a right of
fthaft'a, the subsequent sentence, in t which
he asserts his having re reived the price, as
tending to extinguish that right which he has
himself created, must not be admitted But
if the seller should say, "I have sold the
ground and received the price," and then
should add, "which was one thousand dirms,"
BOOK XXKVIir— CHAP. II.]
SHAFFA.
555
his evidence with respect to the amount of
the price cannot be admitted, because by the
prior acknowledgment of his having received
the price, he becomes like a stranger, and
has no further concern or interest in the
matter.
Section
Of line Articles in lieu of which the Shafee
may take the Shaffa Property.
The Shafee is entitled to the benefit of any
abatement made to the purchaser, but not to
that of a total remission. — IF the seller abate
a part of the price to the purchaser, the
ShafVe is entitled to the benefit of such
abatement ; whereas if the seller; after the
sale, remit the whole of the price to the
purchaser, the Shafee is not allowed to avail
himself of such indulgence. The reason of
this distinction is, that an abatement of a
part is an act connected with, and referring
to, the original bargain or sale ; and the
Shafee is entitled to be benefit of it, because
that sum which remains after deducting the
abatement is the price ; whereas an entire
remission has no connexion with the original
bargain. In the same manner also, if the
seller abate a part of the price, after the Shafrc
has become seised of his Shaffa property, he
[the Shafee] is entitled to the benefit of such
abatement, and accordingly receives back the
amount abated by the seller to the purchaser
He is not liable for anv augmentation
agreed upon after the sa/e. — IF, on the
contrary, the purchaser after the bargain
is concluded, agree to an augmentation of
the price in favour of the seller, the Shafee
is not liable for such augmentation , because
his privilege of Shaffa is established for the
prior originally settled : and if any subse-
quent augmentation were admitted to operate
with respec* to him, it would be a loss to
him ; whereas, on the contrary, any subse-
quent abatement is a benefit. Analogous to
this case of augmentation is that formerly
stated, in which it was remarked, that if a
man make a purchase for a certain price,
and afterwards renew the purchase of the
same thing, and settle a large price, the
Shafee is not prejudiced by such augmenta-
tion, but is entitled to his Shaffa for the price
first agreed upon.
// the price consist of effects, the Shafee
may take it on paying the value of those
effects : but if it consist of similars he is to
pay an equal quantitv of the same — J F a
man sell a house for a certain quantity of
goods or effects, the Shafee is entitled to
take it for the value of such effects ; for
effects are amongst the things denominated
Zooat-al-Keem, or things which, being es-
timable, are compensable by an equivalent
in money. — If, on the other hand, a man sell
a house for a compensation in wheat, silver,
or any other articles estimable by measure or
weight, the Shafee may take it for an equal
quantity of the same article ; because these
are of the class of Zooat-aMmsal, or things
compensable by an equal quantity of the
same species. The reason of this is that the
revealer of the LAW* has established in the
Shafee a right to take possession of the
property of the purchaser, on giving him a
compensation similar to the price which he
has paid ; — it is therefore necessary that a
similarly betwixt the compensation and
price be observed as nearly as possible, in
the same manner as in cases of destruction
of property — (It is to be observed that
articles which differ very little in their
unities, such as walnuts or eggs, are in-
cluded under the denomination of Zooat-
aMmsal, or things compensable by an equal
quantity of the same species. If, therefore,
a man purchase ground for walnuts or eggs,
the Shafee may give him a compensation in
j walnuts or eges and is not required to pay
an equivalent in money )
And so likewise, if the price consist of
hind — IF a man sell a piece of ground for
another piece of ground, in this case, as
each piece of ground is the price for which
the other is sold, the Shafee of each piece is
entitled to take it for the value of the other,
land being of the class of Zooat-al-Keem,
or things compensable by an equivalent in
money.
In case of a term of credit t the Shafee may
either wait the expiration of the term, or take
the property immediately, upon paying the
price.— IF a house be sold for a price pay-
able at a distant period, the Shafee may
either wait until that period be expired, and
then take the house for the same price,— or
he may take it immediately, on paying the
price in ready money ; but he is not entitled
to take it immediately and demand a respite
j to the period settled by the purchaser, Ziffer
maintains that the Shafee is entitled to take
the house immediately, and demand a re-
spite of the payment (and such also is the
opinion of Shafeei) ; for the respite is a
modification of the price, in the same manner
as if it were stipulated to be paid in coin of
an inferior species ; and as the Shafee is
entitled to take the house for the price itself,
he is of course entitled to take it for the
price under its modification. The ^ argument
adduced by us, in support of the former
opinion, is that a delay or respite cannot be
established but by a positive stipulation be-
twixt the parties : and in the present case
there is not any stipulation, either betwixt
the Shafee and the seller, or the Shafee and
the purchaser.— nor can the seller's con-
senting to a respite in favour of the purchaser
be construed into a consent to respite in
favour of Shafee ; for men, as they differ
in their circumstances, are more or less cap-
able of discharging their debts.— With re-
spect, moreover, to the arguments used in
behalf of Ziffer1 s opinion, it is true that the
respite is a modification of the price ; yet
the law is not to be bent thereby ; for the
respite is in fact, a right of the purchaser ;
*Meaning, the Prophet, who is often
termed Shari, or the lawgiver.
556
SHAFFV
fVoL. III.
but if it were admitted a modification of the
price, it would be a right of the seller, like
the price itself :— this case being analogous
to where a man purchases a thing for a price
payable at a distant time, and afterwards
sells it again by a tawleeat ;— in which
instance, if no such stipulation be expressed,
the second purchaser is not entitled to a
term of credit, — and so here likewise. — If
in the case here considered, the land be still
in the possession of the seller, and the Shafee
take it and pay him the price in ready
money, his [the seller's! claim against the
purchaser ceases ; for the bargain with
respect to him is dissolved, and the Shafee
is substituted in his place, as has been already
explained. — If, on the contrary, the larnl be
in the possession of thv purchaser, and the
bhafee take it from him, still the selkr mu t
allow to the purchasei the term of credit
originally settled : because the bargain be-
twixt them is not dissolved by the Shafee's
taking the land, and the case is therefore
the same as where a person makes a purchase
upon credit, and then sells the article for
ready money, in which case the first seller is
not entitled to demand ready money from
him. It is, however ; lawful for the Shafee
to defer taking the land until the term of
credit be expired ; but he must make his
demand without delay ; for if he neglect to
make an immediate demand, his right of
Shaffa, according to Haneefa and Mohammed,
becomes null :— contrary to be opinion of
Aboo Yoosaf. — The reason for the opinion of
Haneefa and Mohammed upon this head is,
that as the Shaffa has existence fr< m the
time of the sale, it is therefore requiste that
the claim be made upon the instant of the
sale being known. The teason for Aboo
Yoosaf 's opinion is that "the only use of the
claim is to enable the Shafee to take the
land, which end cannot be at present
effected, whence he remains silent ; and as
this silence does not argue any recession
from his right, that is consequently not in-
validated. To this, however, it may be
replied, that the taking of the land is a
matter posterior to the claim : and the Shafee
has it, moreover, in his power to take it on
the instant, by paying down the price.
Cast of property subject to Shaffa, pur-
chased by a Zimmee for a price consisting of
unlawful articles — IF a Zimmee purchase
land for wine or pork, and the Shafee be also a
Rimmee, he [the Shafee may take the land
for an equal quantity of similar wine, or for
the value rf the potk, because a bargain of
this kind is held valid amongst Zimmees; and
as the right of Shaffa is enjoyed in common
by both Mussulmans and Zimmees, and wine,
amongst the latter, is held as vinegar amongst
the former, and hogs as sheep, it follows that,
vinegar being included under the denomina-
tion of Zooat-al-Inrral, and sheep under that
of Zooat-al-Keem, the Shafee is at liberty to
take the land for an equal quantity of wine,
or for the value of the pork. If, on the con-
trary, the Shafee be a Musalman, he is to
take the land for the value of the wine as well
a« of the pork ; for the giving or receiving of
wine amongst Mi s*ulm<)ns is prohibited by
their relig on, and it is therefore, with re-
spect to them; reckoned also amongst the
things which are of the denomination of
Zooat-al-Keem — If, on the other hand, there
be two Shafee, the one a Mussulman and the
other a Zimmee, the former must take half
of the land for half the value of the wine,
and the latter the other half, for ha'f the
quantity of the wine.— If, also, the Zimmee
Shafee become a Mussulman, as his i ight is
strengthened, not invalidated, by his con-
version, he is therefore to take his half of
the land for half of the value of the wine ;
because, by his embracing the faith, he is
incapacitated from paying the actual wine,
which then (as it were) becomes non-existi nt
with respect to him ;~in the same manner as
where a person makes a purchase of a house
for a measure of green dates, and a Shafee
afterwards appears, at a time when the season
for green dales is past; in which case he must
take the he use for «he value* of the dates. —
and so likewise in the present instance, as
wini» IF, in effect, non-existent with rcspert
to Mussulmans they being prohibited by
the LAW, from using it in any shape.
Section,
The Shafee may either take the buildings
or plantations of the purchaser (paying the
value), or may cause them to be removed. —
IF the purchaser of ground subject to a claim-
of Shaffa erect builc ings or plart trees upon
it, and the Ka?ee afterwards order the ground
to be delivered to the Shaffee, it in this rase
rests with him [the Shafee] either to take the
ground, togethei with «he building or trees,
paying the value of both, or to oblige the
purchaser to remove them. This is the doc-
trine of the Zahir Ra\va>et. It is recorded
from Aboo Yocsaf tl at the Shafee cannot
oblige the purchaser to remove his buildings ;
but he miut either take the ground, paying
the value of the trees or buildings, or relin-
quish the whole. This is also the opinion of
Shafei. He, however ; admits that the Shafee
may cause the buildings or the trees to be
removed, on indemnifying the purchaser in
the loss he may thereby sustain. In short,
according to him, the Shafee has three things
in his option : for he may either take the land,
together with the trees and buildings, paying
the value of those, — or he may cause them to
be removed, indemnifying the purchase, — or,
lastly, he may relinquish the whole. In sup-
port of the op-nion of Aboo Yoosaf two argu-
ments are urged. FIRST, the purchaser was
justifiable in erecting the building9; sinc«» the
ground was his own property, and it would
therefore be unjust to oblige him to remove
them ; — in the same manner as where ground
is for a short time transferred by a great, or by
a defective sale, and after wards taken back,—
in which rase the granter or the seller has it
not in his power to oblige the grantee or the
purchaser to remove any buildings he may
BOOK XXXVIir.— CHAP. II.]
SHAFFA
557
have raised upon the ground whilst it was in
his possession,— or (in cases of Sbaffa) where
the purchaser has laised a crop of grain
from the ground,— in which case the S ha fee
cannot oblige him to remove it until it be fit
for reaping.— SECONDLY, in the present case
one of two grievances must follow ; for either
the Shafee must suffer a grievance in being
obliged to pay an enhanced price for his
Shaffa on account of the additional value of
the buildings, or also the purchaser must
suffer a grievance is being compelled to
remove them. Now the latter of these
grievances is the heaviest, for it is a loss
without any recompense ; whereas the in-
crease of price paid by the Shafee is not
without a consideration ; - and where the
Shafee either takes the ground, paying for
the trees and buildings, or relinquishes the
whole, the greater of the two grievanres is
obviated, and the smaller one only is induced.
The reasons urged in behalf of the opinion
quoted from the Zahir Rawayat are, that
as the purchaser has planted trees or erected
buildings on ground over which the rights of
another extended, without first obtaining the
sanction of that other, they muj»t be removed,
in the same manner as where a person who
holds ground in pledge builds upon it with-
out the permission of the pledger.— Besides,
the tight of the Shafee is stronger than that
of the purchaser, as being of prior date ;
whence it is that any act of the purchaser,
even such as the selling or granting cf the
ground, may be dissolved. It is otherwise
with respect to a grantee, or a purchaser
under an invalid contract (according to
Haneefa); because they act under a per-
mission from the possessor of the right ; and
also, because the right of resumption in
rases of gift or invalid purchase, is but of a
weak nature,— whence it discontinues upon
the erection of buildings. The right of
ShaiTa, on the contrary, still continues in
force; and therefore the rendering absolutely
obligatory the value of the trees or build-
ings, upon the Shafee, in case of his claiming
his right, would be absurd; in the same
manner as holds in cases of claim of right;*
— in other words, if a person purchases land,
and plant or build upon it, and it afterwards
prove the right of another, the purchaser
recovers the price of the land and the value
of the trees and buildings from the seller,
and not from the claimant of right ; and in
the present instance the Shafee stands as the
claimant of right. Analogy would suggest
that grain also should be removed from the
land ; but, by a more favourable construc-
tion of the LAW in this particular, it is not
to be removed ; because the term of its
continuance is limited and ascertainablc;
and as the delay may be recompensed to the
Shafee by a rent or hire, it cannot therefore
be very grievous to him.
* Arab, Istihkak, meaning, a claim set up
to the subject of a sale. (See Vol. II. p. 294.)
The Shafee is not entitled to any remune-
ration for buildings erected or trees planted
on land which proves the property of another:
— hut he may remove them. — IF a Shafee
having obtained possession of his Shaffa
land, erect buildings, or plant trees upon it,
and it afterwards appear that the land was
wrongfully sold, being the property of
another, the Shafee recovers the pnre, —
from the seller, where he had taken the
land from him,— or from the purchaser,
where he had taken it from him ; because it
is evident that it was wrongfully taken.
He is not, however, entitle4 to recover from
either party the value of his buildings or
trees, but is at liberty to carry the wherever
he pleases — It is recorded from Aboo Yoosaf
that t he Shafee may also recover the value
of the buildings or trees from the person
from whom he received the ground ; because
that rerson, under such circumstances, is
considered as the seller, and the Shafee as
the purchaser ; and it is an established rule
that the purchaser may recover from the
seller the value of such buildings as he has
erected on the ground, if it appear that the
ground sold to him was not the property of
the seller, but of another person, There js,
however, a difference, in this case, betwixt
a Shafee and an ordinary purchaser ; for
the latter is deceived by the seller, and is
empowered by him to take the ground, —
whereas the Shafee is not deceived by the
purchaser, nor can he be said to be em-
powered by him to take the ground, since 4he
purchaser himself is compelled, the Shafee
taking possession of the ground withe ut his
consent.
If the property have wtained any acci-
dental or natural injwv after sale, still fhe
Shafee connot take it for less than the full
price — IF a man purchase a house or garden
subject to a claim of ShafTa, and the building
(owing to some unforeseen calamity) be de-
j stroyed, of the trees decay, it rests in the
option of the Shafee either to resign the
house or garden, or to take it and pay the
full price : because as buildings or trees are
mere appendages of the ground (whence it is
that they are included in the sale of land
without any particular mention being made
of them), no particular part of the price
is set against them, — unless where they have
been wilfully destroyed by the purchaser, in
which case it is lawful for him [the purchaser]
to sell the appendages so destroyed, and
make a profit by them, exclusive of the full
price of the ground. It is otherwise when
one half of the ground is inundated : for in
such case the half of the thing itself being
destroyed, the Shafee may take the remainder
paying only half the original price.
If the injury be committed by the pur-
chaser, the, Shafee may take the ground alone
at its estimated value —If the purchaser wil-
fully break down the erections, the Shafee
may either resign his claim, or may take the
area of ground for a proportionable part of
the original price ; but he is not entitled to
358
SHAFFA
[VOL. III.
the ruins, because they become a separate
property, and are no longer appendages of
the ground; and the right of Shaffa extends
only to the ground, and to things so attached
to it as to be appendages, .
Case of a Shafef taking ground with fruit
trees.— Ira man purchase a piece of ground,
having date trees upon it bearing fruit at the
time, the Shafee is entitled to take the fruit,
— provided particular mention have been
made of it in the sale, for otherwise it is
not comprehended. What is here advanced
proceeds upon a favourable construction.
Analogy would suggest that the Shafee is
not entitled to take the fruit ; because, as
the fruit is a dependant both of the tree and
of the ground (whence it is not included in a
sale of ground unless it l>e particularly
mentioned), it therefore resembles the furni-
ture of a house The reason fur a more
favourable construction, in this particulai
is that the fruit, in consequence of its con-
nexion with the tree, is a dependant of tlu»
land, in the same manner as an erection, or
any thing inserted in the wall of a house,
such as a door, for instance ; and therefore
the Shafee is entitled to take it The same
rule also holds where the ground is purchased
at a time when there is no fruit uoon the
trees and the fruit is afterwards produced
whilst it [the ground] Is y«t in the pur-
chaser's possession;— in other words, the
Shafee is here also entitled to take the fruit,
because that is a dependant of the original
article : in the same manner as in the case of
a female slave who is sold. — if she be de-
livered of a child previous to her brine oiven
over to the purchaser, still the child, as
well as its mother, is the property of the
purchaser
In either of the two preceding cases if the
purchaser have gathered the fruit, and the
Shafee afterwards come and claim his privi-
lege he is not entitled to the fruit so gathered;
for it is no longer an appendage of the
ground. It is said, in the Mabsoot, that if
the purchaser have gathered any of the fruit,
a proportionable abatement should be made
in the price to the Shafee The compiler of
the Hedaya remarks, that this is in the
former only of the two above- mentioned
cases; for the fruit being produced at the
time, and being actually and expressly in-
cluded in the sale, it is natural to suppose
that a part of the price was given in con-
sideration of it ; whereas, in the latter case,
the fruit was not produced, and could only
be included in the sale as a consequent,
whence no part of the price could have been
set against it.
CHAPTER III
OF THE ARTICLES CONCERNING WHICH
SHAFFA OPERATES
The right of Shaffa hold* with retpect to
all immoveable property. — THE privilece of
Shaffa takes place with respect to immove-
able property, notwithstanding it be in
capable of division, such as a bath, a mill,
or a private road Shafei maintains that
nothing it subject to Shaffa but what is
capable of being divided : because (accord*
ing to his tenets) the end of Shaffa is to
obviate the inconveniences attending a divi-
sio i of property, which does not hold in a
property incapable of division. Our doc-
trine, however, is grounded on a precept of
the Prophet, who has said "SHAPEA takes
place with regard to all lands or houses "
Besides, according to our tenets, the grand
principle of Shaffa is the conjunction of pro-
perty, and its object (as we have already
explained) to prevent the vexation arising
from a disagreeable neighbour ; and this
reason is of equal force whether the thint»
be divisible or otherwise
THE privilege of Shaft i does not extend
to household effects or shipping ;* because
of a sjyintt of the Proplvt, "SHAFFA affects
only houses and yirdens;" and also, because
the intention of Shaffa being to prevent the
vexation arising from a bad neighbour, it is
needless to extend it to property of a move-
able nature
Unless it he sold separate from the ground
on which it stand* — IT is observed, in the
abridgment of Kadooree, that Shaffa docs
not affect even a house or trees when sold
separately from the t>mtind on which they
stand This opinion (which is also men-
tioned in the Mabsoot) is approved ; for as
buildings and trees are not of a permanent
nature, they are therefore of the class of
moveables. There is, however, an excep-
tion to this in tliis r;»<-o of the \ippcr storey of
a house; for it is subject to Shaffa — whenre
the proprietor of the undor *torev is the
Shafpe, as is also the proprietor of the upp«*r
the Shafee of the under one, notwithstand-
ing their entries be by different roads.
A Mussulman and a Zimmee are on an
equalitv with respect to it — A MUSSULMAN
and a Zimmee; being caually affected by the
principle on which Shaffa is established, and
equally concerned in its operations, are there-
fore on an equal footing in all caces regarding
the privilege of Shaffa, and for the same
reason, a man or a woman, an infant or an
adult, a just man or a reprobate, a freeman
or a slave (being either a Mokatih or a Mai
zoon), are all equall with respect to Shaffa
It holds with respect to property trans-
frrred In any shape for a consideration, —
WHEN a man acquires a property in land
for a consideration (in the manner, for in-
stance, of a grant for a consideration), the
privilege of Shaffa takes place with respect
to it, because it is in the power of the Shaffa
to fulfil the stipulation.
It does not hold in a property assigned in
dower, or as a compensation for Khoola, or
*The term, in the original, signifies boats
including every species of water- carriage
.BOCK XXXVIII -CHAP. III.]
SHAFFA.
559
as a hire, or in composition for murder, or as
the price of manumission. — THE privilege of
Shaffa cannot take place relative to a house
assigned by a man as a dower to his wife, or
by a woman to her husband as the condition
on which he is to grant her a divorce, or
which is settled on a person as his hire or
reward, or made over in composition for
wilful murder, or assigned over as the ran-
som of a slave ; for w'th us it is a rule that
original light of j.^operty, and consequently
no sale or exchange of property for property
can here be established in regard to him ; —
and so likewise if he refuse to answer to the
suit, and then compromise it with a sum of
money.-— since it may be supposed that he has
parted with his money rather than be under
the necessity of taking an oath, even with
truth on his side, or of involving himself in
litigious disputes and broils. If, on the con-
Shalta shall not take place unites there exist ' trarV. he confess the justness of the plaintiff's
an exchange of property for property, which
ig not the case in any of these instances, as
the matters to which the house is opposed are
not property Shafei holds Shiffa to take
place in all these cases ; because, although
the matter to which the house is opposed be
not property, it is nevertheless capable of
estimation (according to his tenets), and
therefore the house may be taken upon pay-
ins the value of the matter to which it is
opposed, in the same manner as in the sale
of a property for a consideration in goods or
claim, and then compromise with a sum of
money, the privi'egr of Shaffa takes place ;
because as he has hero acknowledged the
plantiff's right to the house, and retained
if afterwards in virtue of a compromise, an
exchange of propeity for property is clearly
established in this instance.
It holds with lespect to a house made over
in composition. — IF a defendant compromise
a suit by resigning or making over a
house to the plaintiff, after havinq either
denied his chum or acknowledged it, or re-
fused to answer it, the right of Shaffa is
effects It is to be observed, however, that tusecl to answer it, the right ot bharia is
this opinion of Shafei obtains only with re- i established with respect to the house: be
spect to a case where a part of a house is ' cause, as the plaintiff here accepts the house
in consideration of what he conceives to be
his right, he is therefore [in adjudging the
right of Shaffa against him] dealt with ac-
c jrding to his own conceptions
But not with respect to prcperty transferred
by grant. — THE privilege of Shaffa is not
admitted in the case of grants, — unless when
the grant is made for a consideration, in
which ease it is, in effect, ultimately a sale.
Still, however, the privilege of Shaffa can-
not be admitted, unless loth parties have
obtained possession of the property trans-
ferred to them by the terms of the grant
(nor if the thing granted on either side be
an indefinite part of any thing); for a grant
on condition of a retutn is still a grant in
! its beginning, as has been already explained
It is further to be ob-
Shdffd cannot
be admitted, unless the return be expressed
as a condition on making the grant ; for if
it be not so expressed, and the parties give
assigned as a dower, or made over as a
consideration for Khoola, a composition for
murder, and so forth : for, according to his
tenets, there is no Shaffa except in cases of
joint property.
It holds with r esprit to a house sold in
order to pay the d^wer. — IF a man marry a
woman without settling on her any dover,
and afterwards settle on her a house as a
dower, the privilege of Shaffa does not take
place, the house being here considered in the
same light as if it had been settled on the
woman at the time of the marriage — It is
otherwise where a man sells his house in
order to dischaice his wife's dowei either
proper stipulated : because here exists an
exchange of property for property. | lts beginning, as has been all
IF a man, on his marriage, settle a house i ln treating of gifts It is Fur
upon his wife a, Ui dower, and stipulate i ffrved .that the privilege of
that she shall pay him back, from the price
of the house, one thousand dirms, according
to Haneefa the privilege Shaffa does not
take place relative to that house ; whereas
the two disciples hold that it effects a port
to each other reciprocal presents, these pre-
meiwocuscipies noui tnat it oiiects a port ; sfnLts on bothL sides are held as pure grants,
of the house equivalent to one thousand I although each of them having met with a
Hirms.* ' requital of his generosity, neither is allowed
the power of retreating.
It cannot take place with respect to a pro-
perty sold under a condition of option. — Ira
man sell his house under a condition of option,*
the privilege of Shaffa cannot take place
with respect to that house, the power re-
It dies not hold with respect to a house the
possession of which is compromised by a sum
of money. — The privilege of Shaffa does not
operate relative to a house concerning which
there has been a dispute betwixt two men,
compromised by the defendant (who was the , . • • « « i_ • • • v
possessor) paying the plaintiff a sum Of served by the seller being an impediment to
money, after denying his claim: for in this I the extinction of his right of property but
case, the compromise being made after the
denial, the house, in the imagination of the , . -
defendent, still belongs to him under his . tj|kes place provided the
when he relinquishes that power, the impedi-
ment ceases, and the privilege of Shaffa
e Shafee prefer his
claim immediately, This is approved.
* The reasonings on both sides are here
recited at large ; but are omitted in the
translation, as containing merely a string
of metaphysical subtilties or little or no use,
*That is, "reserving to himself the power
of hereafter dissolving the sale." (See Vol.
II. p. 220 to 256.)
560
SHAFFA
[VoL. Ill
But it holds with reject to a property so
purchased.— If, on the contrary, a man pur-
chase a house under a condition of option,
the privilege of Shaft a takes place with
respect to it ; for such a power reserved by
the purchaser is held, in the opinion of all
the learned, to be no impediment to the
extinction of the sellei's right of property :
and the right of Shatta is founded and rests
upon the extinction of the seller*, ii.'htof
propei ty, as has been air. acly explained.
And on the Shafet t iking poss^ion, the
purchaser's right of option etas*'*. —It the
Shafee take the house during the purchaser's
right of option (namely, three days), such
right ceases, and the sale is completely con-
cluded ; for the purchaser, as no longer
having the ho'ise in his possession is no
longer capable of rejecting it ; and the Shaffa
cannot pretend to claim the power of dissolv-
ing the bargain, since that power was founded
in a condition established in fivour of the
purchaser only.
In <i case of sale upon option, the possessor
of the option is Shifee of the aJjacent pro-
perty — IF, whilst one of the partie*, either
purchaser or seller, has the power of dissolv-
ing the bargain, the house adjoining to the
one in question be sold, he who possessed
such power is the Shaffee of the adjoining
house. — If it be the seller, he is the Shafee,
because whilst he retained the power of dis-
solving the bargain, his right of property
remained unextinguished ;— or, if it be the
purchaser, his claim ng the Shaffa of the
second house is a proof of his inclination to
keep the first, and not to avail himself of his
power of dissolving the bargain :— h's right
of property is therefore held to commence
from the time of adjusting the bargain; and
in consequence of his right of proptrty in
the first house, he has the right of Shaffa
with rcspprt to the scrond. If, in this case,
the SL,fi.c of the iir^t house should after-
wards come and claim his right, he is entitled
to the Shaffri of the first home; — but he is
not entitled to that of the second, because
the first house was not his property at the
time when the second was sold.
I* a man purcha-e a house without seeing
it, and afterwards, in virtue of his privilege
Of Chaff J, UUc ll.c atji..fllt IlOU .1 . <•' 1.1- "»
happens to be sold, still his power of reject-
ing the first house on *reing it does not cease ;
for as it would not be annulled ev. n by an
express renunciaiion; it consequently is not
annulled by an act wh'ch affords only a pre-
sumption of renunciation
The right does not hold with respect to a
property transferred under an invalid sale
— THE privilege of Siaffa cannot take phce
regarding a house transferred by an invalid
sale, either hefote or after the put chaser
obtaining possession of it ; for, befoie the
purchaser obtains possession, the house be-
longs as usual to the seller, and hi > right of
property is not extinguished ; and after he
has obtained possession there is still a pro-
bability that the bargain may be dissolved,
since the LAW admits the dissolution of a
sale, in a case of invalidity, in order to
obviate such invalidity, an effect which
could not be produced if the privilege of
Shiffa were allowed. If. however, the pui-
chaser put an end to the possibility of the
dissolution by any particular act, such as by
erecting buildings on the ground, or the like,
the privilege of Shaffa rnjy take place, si n^v
the impediment then n * longer exists
7/i«? ir»ffi»r of j piopsity, i.?iifer tin invalid
sale i, still fihtifee nf the adjacent propeitv.
-!F the house adjacent to one which has
been transferred by an invalid sale be sold
whilst the one so transferred i1! stiM in the
possession of the .seller, he | th? seller] is the
Shafee of the adjacent house, because of the
continuance of his right in tlv» other.
Until he deliver the property sold to the
purchaser, who then has t/w right. —!F the
seller have delivered over the first house,
pteviotis to the Kaxee decreeing to him the
Shaffa of the adjicent one, the purchaser,
because of the property lv-» has acquired m
obtaining possession of the first house, i> the
Shafee of the second It is other vise where
the seller delivers over the first house after
the Kazce has decreed to him the Shaffa of
the second ; for in this case his right of Shaffa
is not invalidated : because, after the decree
of the Kazee has passed, it is no longer
necessary that he preserve his right of pro-
perty in trnt house from which he derived
his right of Shaffa,
Which, howevw, falls upon the seller re-
suming hi? property —If the seller take back
the first house, previous to the Kazce de-
creeing the Shaffa to the purchaser; his [the
purchaser *s] right of Shaffa becomes null ;
because his right of property in that house
from which he derived it has ceased previous
to its being granted him by a decree of the
KiT^r If on thr rontrirv. the .viler do it t
lake ba k the first house until after the
I'azce Las decreed the Shaffa of the second
t.) the purchaser, his line purchaser's] right
of Sh 'iff a h not invalidation ; because, at the
tim«- it was decreed, the house from which it
was derived was his property ; and (as we
have already observed) after the decree of
the Ka7ee has passed it i-j no longer n£cessary
iliil lie ^itStfivc liii» right ut i^r.j^-.-rty in tLat
house from v.hich he deiived his right of
Shaffa.
A right ofShiffd is not created by partners
making a partition of then joint property. —
IF two or more partners divide ths ground
in which they have hitherto held a joint
property, the privilege of Shaffa cannot be
claimed by any neighbour ; because, a'though
the division of joint property bear the cha-
lacteristit- of an exchange, yet it also bears the
characUiistic of a separation, namely, a
separation of the lights of one person from
those of others, a thing which may be done
by compulsion, since any one of th* partners
may cause it to be effected by an application,
to the Kazee, notwithstanding it be contrary
to the inclination of the others. It is not
BOOK XXXVIII -CHAP IV] SHAFFA.
therefore a pure exchange, which admits"of
no compulsion, but mu.i be icco.nplishcd by
the concurrence of both j^nies: and th«>
privilege of Shaffa is admitted iiV the LAW to
operate only in ca<es of a pure exchmse
ineri^htonce relinquish1 cannot after-
wards be resumed.— IF a man purchase a
house: and the Shafce relinquish his pri-
vilege, and the purchaser afterwards nj^ct
it in virtue of an option of inspection, or a
condition of option, or by a decree of the
magistrate in virtue of an option from defect.
trie bhafec is not entitled to claim his privi-
lege, whether the man had ever taken pos-
session of the house or not; and so likewise,
h i man' Before taking possession, reject
the house on discovering a blemish, without
a decree of the Kizee; for as, under all those
circumstances the rejection is a dissolution
of the bargain, the house reverts to its ori-
ginal proprietor; and the privilege of Shaffa
is not established but on the notification of a
new sale. If, on the contrary, tiie purchaser
reject the house on discovering a blemish in
it, after having taken possession without a
dcciceof the Kazec,— or, if the seller and
purchaser agree to dissolve the contract.—
privilege of Shaffa is established to the
because in those instances the rejec-
tion or dissolution is a breaking off wuh
respect to the seller and purchaser, inas-
much as they are their own makers, and
moreover will and intend a brv.i^g off.--
yet with resp _»_-t to oilv?rs it is n >' a ueaking
otf, but is rather, in <?ff;ct, a n w *,ile, since
the characteristic of bale, na nely, an ex-
change of property for propert ' with the
mutual consent of the parties, exists in it ;
and as the Shafee is another, it is therefore a
Jale wjth respect to him, whence his right of
ohaffa must be admitted.
561
CHAPTER IV.
OF CIRCUMSTANCES WHICH INVALIDATE THE
RIGHT OF SH \i-FA.
A right of Shaffa is inr.il. dated by the
Shafee omitting to ptocure evidence in due
time — IF the Shafee omit to orocure evidence
of his having claimed his Shaffa on being
informed of the sale, notwithstanding his
ability so to do, his right of Shaffa is void,
because of his neglecting to claim it —In the
same manner also, if he prefer the Talb
Mawasibat, or immediate claim, and omit
the Talb I sh- had wa Takr^e, notwithstand-
ing his ability to make it, his right of Shaffa-
is void, as has been already explained.
Or by hi s offering to compound it.— IF the
Shafee agree to compound his privilege of
Shaffa for a compensation, he thereby in-
validates his right, and is not entitled to the
compensation ; foi he has no established right
or property in the place in dispute, but merely
a power of insisting on becoming the pro-
prietor exclusion of the purcahser : and
as, therefore, a renunciation of Shaffa ( under -
'-•toodm riMiJuncim/ all right to disturb the
pioptiefor in th'j enpvncnt of the property)
is 'iul a sub jeoroi exchange, it follows that
n > fonsiMoraUun can h«- .lenuuded fur it
A;, njieov t; PIC t^linqu-shment of the
riuj'h. coul-l not lawfully be suspended even
up .n a valid conJition, that IP, a condition
proper to it (such as a stipulation of giving
up something in return which is not pro-
perty), it follows that it cannot be lawfully
suspended upon an invalid condition, or con-
dition not proper to u (such as a condition of
giving up property in return for a mere right,
which is not property), a fortiori The con-
dition of a return is therefore null, and the
rejinquishmer.t of the right remains valid
without a return : — and the case of a person
selling his right of Shaffa is subject to the
same rule— It is otherwise in a case of com-
position for retaliation ; because retaliation
is a right established against the person of
tlio murderer in behalf of the representative
of the murdered, who i*t the avenger of his
M ioJ —It is also otherwise with respect to a
consider -tion received for manumission or
divorrv ; because .hat is a consideration for
a nyhr of property established in the subject
of fhe manumission or divorce. — Analogous
to tli, cast- of relinquishment of Shaffa for a
compensation bv composition is that where a
man says to his wife bein_» under an option
of H'vorcc; ''Choose me, for one thousand
inns " or where an impotent person tells
\\i^ vvtfc that "if she will relinquish her right
of dissolving the marriage he will give her
one thousand dirms;" for if, in either of
these cases, the wife accept the proposal, she
forfeits the power she possessed, and the
husband c.innot be compelled to pay the
COP ^XTisation — '}ail for the person, also
(tomn.only termed Hazir Zaminec), bears a
resemblance to Shaffa in this particular; for
if a person who is bail for the appearance of
a debtor apply to the creditor and prevail
upon him to compromise with him, by relin-
quishing his claim on him as security, for a
certa'n compensator, the surety is in this
case r ..-leased from his engagement, and at
(ho sini? unit i" no* h iMe for the compen-
j-i'ion. 'Pii, i- oiv tt i-tition According to
atv>*hor tradition, the surety can neither be
mule liable for the compensation, nor yet
released from his engagement of bail. Some
also, contend that this last is the case with
respect to Shaffa, whilst others maintain that
the rule applies to bail only.
Or by the death of the Shafee before the
Kazee's decree. — IF the Shafee die, his
right of Shaffa becomes extinct Shafei
maintains that the right of Shaffa is here-
ditary --Tne compiler of the He day a remarks
that this difference of opinion obtains only
where the Shafee dies after the sale, but pre-
vious to the Kazee decreeing him the Shaffa;
for if he die after the Kazee has decreed his
Shaffa, without having paid the price, or
obtained possession of the property sold, his
right devolves to his heirs, who become
562
5HAFFA
[VOL. HI.
liable for the price. The argument of our
doctors upon the point in which they differ
from Shatei is, that the death of the Shafee
extinguished his right in the property from
which he derived his privilege of Shaffa;
and the property did not devolve to his heirs
until after the sale. Besides, it is an express
condition of Shaffa, that a man be firmly
possessed of the property from which he
derives his right of Shaffa at the time when
the subject of it is sold, a condition which
does not hold on the part of the heirs. It
is, moreover, a condition that the property
of the Shafee remain firm until the decree of
the Kazee be passed; and as this does not
hold on the part of the deceased Shafee, the
Shaffe is therefore not established with re-
spect to any one of his descendants, because
of the failure of its conditions.
It is not invalidated by the death of the
purchaser, and therefore cannot be disposed
of on his behalf. — IF the purchaser die, yet
the right of Shaffa is not extinguished, for
the Shafee who is entitled to it still exists,
and no alteration has taken place in the
reasons or grounds of his right. The house,
therefore, is not to be sold for the payment
of the purchaser's debts, or disposed of
according to his testament ; and if the Kazee
or executor sell it in order to discharge the
debts of the estate, or if the purchaser have
bequeathed it, the Shafee may render any of
these transactions void, and may take the
house; for the right of the Shafee is antece-
dent,— whence he has the power of annulling
the purchaser's acts with respect to the pro-
perty, even during his lifetime
It is invalidated by the Shafee selling the
property whence he derived his right. — IF
the Shafee previous to the decree of the
Kazee sell the house from which he datives
his right of Shaffa, the reasons or grounds
of his right being thereby extinguished, the
right itself is invalidated, notwithstanding
he be ignorant of the sale of the house to
which it related; — in the same manner as
where a man relinquishes his Shaffa without
being informed of the sale, or acquits a per-
son of a debt without knowing the amount ;
in the first of which cases the right of Shaffa
is invalidated, and in the second the debtor
is acquitted. It is otherwise where the
Shafee sells his house upon a condition of
option: for as, whilst a power of option
remains in the seller, his property is not
totally extinguished, it follows that the
ground of Shaffa (namely, a conjunction of
property) still continues.
Or by his acting as agenr for the seller. —
IF the Shafee act as agent of the seller, and
sell the house on his behalf, his right of
Shaffa is thereby invalidated :— whereas if
he act as agent for the purchaser, and pur-
chase the house on his behalf, his right of
Shaffa is not invalidated. In short, it is a
rule, that if a person, an agent for another
sell the land, &c. of that other, the right of
Shaffa in both is thereby invalidated:
whereas; if an agent (such as a manager, for
instance) purchase land, or so forth, the
right of both continues unaffected; for the
former, if he were afterwards to contest his
right, must in so doing labour to annul the
sale which was completed by him, — whereas
the latter, in so doing does not annul the
purchase made by him. the taking of a pro-
perty in virtue of Shaffa being itself a sort
of purchase. In the same manner also, if
the Shafee become Zamin be' I Dirk, or bail
for what may happen.* by engaging to be
responsible to the purchaser for the amount
of the price in case the house should after-
wards prove the right of another person, his
right of Shaffa is thereby invalidated. So
also, if a man sell a house, stipulating the
option of a third person, meaning the
Shafee, and he [the Shafee] confirm the sale,
he thereby forfeits his right of Shaffa;
whereas, if a man purchase a house, stipu-
lating the option of a third person, who is
the Shafee, and he (.the Shafee] confirm the
purchase, his right of Shaffa is not invali-
dated.
He may resume his right where he had re-
linquished it upon misinformation concerning
the price. — IF intelligence be brought to the
Shaiee, of the house which is the subject of
his right being sold for one thousand dirms,
and he relinquish his right of Shaffa, and
afterwards learn that the house was sold for
a less price, his resignation is not binding,
and he may still assert his right of Shaffa:
for it was the clearness of the price which
induced him to resign ; but upon the'diminu-
tion of the price becoming known, the reason
of his reisgnition no longer exists, and it is
consequently void. In the same manner
also, if news be brought that the house is
sold for one thousand dirms, and the Shafee
afterwards learn that it was sold for a
quantity of wheat or barley equivalent to
one thousand dirms, or even more, his resig-
nation is void, and he may still take his
Shaffa; because it is to be supposed that his
reason for resigning it was his inability to
furnish the amount of the price in that
species (namely, dirms) for which he first
heard the house was sold ; but upon his
understanding that it was sold for wheat
or barley, it is probable that he may be able
to furnish the quantity, since it frequenty
happens that men who are unable to pay one
thousand dirms are capable of furnishing an
equivalent, or even more than an equivalent,
in barley or wheat. This rule also holds
regarding every other article sold by weight
or measure, or which differs so little in its
species that it may be sold by number (such
as eggs or walnuts), in the same manner as
with respect to barley or wheat. It is other-
wise with respect to goods or effects; for if
the Shafee, hearing that the house is sold for
one thousand dirms, resign his right, and
afterwards learn that it was sold for goods
* For an explanation of this phrase see
Vol, II. p. 255.
BOOK XXX VIIL— CHAP. IV.]
SHAFFA.
563
equal in value to one thousand clirms, or
more, his resignation is nevertheless bind-
ing, and he not entitled to his Shaffa.
because he would in this case be liable for
the price of the goods, which consists of
dirms and deenars. — So, likewise, his resig-
nation is binding if he afterwards learn that
the house was sold for a certain number of
deenars equivalent to one thousand dirms,
or more.
Or the purchaser. — IF the Shafee be first
informed that a particulars person is the pur-
chaser, and thereupon resign his Shaffa, and
he afterwards learn that the purchaser was
another person, he is still entitled to his
Shaffa, because a man might not wish to
have one person for his neighbour, although
he may very readily choose to have another.
In the same manner also, if he afterwards
learn that two persons are the purchasers
(viz. the one whose name he first heard of,
and another), he is entitled to take his Shaffa
from the one in whose favour he had not
resigned it.
Or where he has been misinformed con-
cerning the article sold. — IF news be brought
to the Shafee that one half of the house is
sold and he resign his right, and it after
wards appear that the whole was sold, he
must still in such case claim his Shaffa, since
it is to be supposed that he at first resigned
his right in order to ayoiJ the convenience
of a partner, whereas if the whole l»e sold
there is no occasion for his being a subject to
any such inconvenience. If, on the contrary
the case be reversed, that is to say, if he iirst
learn that that the whole, and afterwards that
only the half is sold, he is not (according to
the Zahir Rawayet) entitled to claim bin
Shaffa, because his resignation of ths whole
comprehended his resignation of a part.
Section.
Device by which the right of Shaffa miy '
be evaded — WHERE a man sells the whole j
of his house, excepting only the breadth of I
one yard extending along the house of the '
Shafee, he [the .Shafee] is not in this case '
entitled to claim his privilege, because of bis !
neighbourhood being thus cut off This is a !
device by which the Shafee may be disap- |
pointed of his right ; and it is still the same,
if the seller grant the intervening part of
his house as a free gift to the purchaser, and
put him in possession of it.
Case of a house purchased in shares, by
the same person, at different times. — IF a man
purchase, first, a share of a house, such as a
a third or a fourth, and afterwards the re-
mainder,— the neighbour has the privilege
of Shaffa over that share which was first
bought, but not over that which was last
bought; for although, as being a neighbour,
he is entitled to that privilege over both,
still the purchaser has a superior right to
the Shaffa of the remainder of the house, as
being a partner therein, the right of a partner
superseding that of a neighbour, as has been
already explained. If, therefore, a man
wish to disappoint a neighbour of his right of
Shaffa, he may do it by first purchasing a part
of the house , for the price he means to give
for the whole, excepting only a single dirms,
which he may afterwards give as the price
of the remainder.
Where the price of the properly sold is
compromised for a specific article, the Shafee,
if he insist on his right, must pay the price.
— IF a man purchase a house for a certain
price, and afterwards, in lieu of that price,
give a Jamma, or gown; to the seller, the
Shafee must take the houae for the price
first settled, and not for the value of the
gown ; for the exchanging of the price for
the gown was a distinct and separate bar-
gain ; and the price which the Shafee is
to pay is on account of the house, not on
account of the gown The compiler of the
Hedaya remarks that this also is a device,
by which the right of Shaffa, either in a
partner or a neighbour, may be eluded ; as
the house may be sold for a price equal to
twice its value, and then, in lieu of that
price, a gown may be given to the seller
equal to the real value of the house. Such an
evasion, however, may be productive of loss
to the seller in case the house should after-
wards prove to have been the right of another;
for then the purchaser of the house is enti-
tled to receive back, from the purchaser of
the gown (that is. the seller of the hmise) ;
the whole price of the house, which was
much more than adequate to its value, the
bargain regarding the gown remaining un-
dissolved. There is, indeed, one mode by
which the seller may avoid the risk of such a
loss ; and that is, by purchasing, in lieu of
the number of dirms for which the house
was sold, a quantity of deenars ; — for, as
this is a Sirf sale, it follows that' upon the
right of another appearing to the house, the
agreement becomes null, as mutual seizin,
which is a condition of Sirf sale, does not
here exist ; because as it here appears that
the seller was not entitled to the price of the
house in lieu of what he purchased or ac-
cepted deenars. he is obliged to restore the
deenars, but nothing more.
A DEVICE, as above described, for eluding
the privilege of Shaffa, is not abominated
by Aboo Yposaf. According to Muhammad,
however, it is abominable ; because (as he
argues) the privilege of Shaffa is instituted
solely with a view to prevent the inconve-
nience which might otherwise ensue to the
Shafee ; but if devices are admitted to elude
and set at nought his privilege, the incon-
veniences which may ensure will not be pre-
vented, and the end of the institution will
be defeated. The argument of Aboo Yoosaf
is, that as the above devices prevent the,,
right of Shaffa from ever being established,
the inconveniences that may accrue to the
Shafee ought not to be cansidered.
Section
MISCELLANEOUS CASES.
The Shafee may take a share from one of
564
SHAFFA
[VOL IV.
several purchacers : but if there be several
sellers, ana only one purchaser, he must take
or relinquish the whole. — IF five persons
purchase a house from one man, the Shafee
may take the proportion of any one of them.
If, on the contrary, one man purchase a
house from five persons, the Shafee may
either take or relinquish the whole, but is
not entitled to take any particular share or
proportion The difference between these
two cases is that if, in the latter instance,
the Shafee were allowed to claim a part, it
would occasion a discrimination in the bar-
gain to the purchaser, and be productive of
very great inconvenience to him ; whereas
in the former instance ; the Shafee being j
merely the substitute of one of the five pur-,
chasers, no discrimination in the bargain is ;
occasioned. There is no difference in the law I
in either of these cases, whether in making j
the purchase, a certain proportion of the \
price had been set against each proportion of
the hou-e, or whether one price had been in ,
general terms agreed upon for the whole ; for !
the law is grounded only upon the disnri-
mination in the bargain. Neither i^» there ,
any difference whether the Shafee take his
right before the purchaser has obtained pos-
session; or delay it until after.— This is ap- j
proved. It must, however, be observed, that !
if one of the purchasers have not obtained i
possession, although he have paul his pro- i
portion of the price, the Shafee is not enti- :
tied to take his share of the house until the |
rest of the purchasers have also paid their ',
respective proportions of the price ; for
otherwise, a part of the house bping in the
possession of the Shafee, and a part still
remaining it that of the seller, it is to be ap
prehended that the seller might suffer vexa-
tion from having a bad neighbour, fn short,
the Shaf.e here stands in the room of one of
the purchasers ; and one of the purchaseis,
on paying his proportion of the price, may
not take possession of his share until the rest
[of the purchasers] have also paid their pro-
portion, it is otherwise after possession ;
for in that case the Shafee may assert his
privilege, as the possession of the seller is
then destroyed.
In case of the sale and partition of half a
house, the Shafee may take the purchaser's
lot. — IF a man purchase one half of a house,
and afterwards the seller and purchaser
make the partition betwixt themselves, the
Shafee may either take or relinquish that
half which fell to the lot of the purchaser ,
on whichever side it happens to be situated ,
but he cannot object to the partition, and
"nsist upon a new one : for a Shafee is not
entitled to disturb the possession of the
seller , and as partition is an act inve*-
titute, he is therefore not entitled to disturb
the partition also This is related as the
opinion of Aboo Yoosaf. It is recorded from
Haneefa, that the Shafee is not authorized
to takt the half in question, unless it happen
to be on that side next to the house from
which he derives his right , for if the pur-
chaser's lot fall m the other part of the
house, he [the Shafee] is not the neighbour.
If one partner sell his share, the Shafee
may annul any subsequent position, and
take it for the price.— I? one of two partners
in a house sell his share, and afterwards the
purchaser and the remaining partner make
the partition together, the Shafee may object
to such partition , and insists upon a new one
because, as no sale took place betwixt the
purchaser and the remaining partner this
partition is not, strictly speaking, an act of
investiture, but merely an exercise of right
of property, and consequently, the Shafee is
entitled to annul it, in the same manner as
he may annul any other act of property,
done by the purchase, such as sale or gift.
A licensed slave (involved in debt} and
his master may be Shajec to each other's
property. — IF a man being possessed of a
Mazoon [licensed] slave, involved in debt,
sell his house, that slave may be the Shafee
of it. And in the same manner also, if such
a slave sell a house, his master may be the
Shafee of it , for the act of taking a property
by privilege of Shaffa stands as a purchase ,
and purchase and the sale is admitted betwixt
them, as being attended with advantage
since it is here considered to be on behalf of
the creditors. It is otherwise where the
slave is not involved in debt , for then if he
sell a house, itjis on account of his master ,
and the man on whose account the house is
sold cannot be the Shafee
Act of a father or guardian with respect
to the Shaffj of an infant wa*d.—lT a
father or guardian resign the right of Shaffa
belonging to their infant ward, such resigna-
tion is lawful, according to Aboo Yoosaf and
Haneefa. Mohammad and Ziffer say that it
is not lawful , and that the right of the
infant Shafee being still extant, he is entitled
to claim it as soon as he attains maturity.
The learned in the law observe that there is
the same difference of opinion in the case of
a father or guardian omitting to make the
claim of Shatta on being apprised of the sale
of the house ; — or of an agent resigning the
claim before the tribunal of the Kazee. The
arguments used by Mohammad and Ziffer
are twofold.— FIRST, it is alleged that the
right of Shaffa being firmly established in
the infant, the father or guardian have not
the power of annulling it, any more than of
annulling his right to a fine of blood or
retaliation.— SECONDLY, their authority over
the affairs of the infan t is vested in them «'n
order that they may prevent him from suffer-
ing and injury ; and if they were to annul
his right of Shaffa they would occasion an
injury instead of preventing one. The argu-
ments, on the other hand, in support of the
doctrine of Aboo Yoosaf and Haneefa are
likewise twofold — FIRST, the taking by
privilege of Shaffa is virtually traffic, since
it stands as purchase ; and the father or
guardian may therefore reject it, in the
same manner as a thing offered for sale. —
SECONDLY* the taking by privilege of Shatta
BOOK XXXIX.— CHAP. I.]
PARTITION.
565
is an act of a doubtful tendency, as it may
either be productive of loss or of gain : the
relinquishing of it may therefore be some-
times the most for the minor's benefit, inas-
much as the price of the house will still
remain his property ; and as the power of a
father or guardian is granted them with a
view to the benefit of the infant, they ouftht
consequently to have the power of rejection.
THE silence of the father or guarding or
their omitting to claim the Shaffa, being
considered as a rejection, annuls the right,
It is to be observed that the difference of
opinion above mentioned obtains only in
cases where th* house in the neighbourhood
of the infant is sold for a price nearly
adequate to its value : but that where the
house is sold for more than its value, be-
yond what appraisers would rate it at, and
which it would be most advisable to avoid,
some say that the resignation of the father
and guardian is admitted to be lawful by all
authorities, as being purely advantageous;
whilst others, on the contrary, maintain
that, according to all, it is not lawful ; for
as the father tnd guardian are not em-
powered, in such a case, to take the Shaffa,
so also they are not empowered to reject it,
but are as strangers ; and the right of the
infant still continues to exist.
IF a house in the neighbourhood of an
infant be sold for a price much inferior to its
value, it is recorded as an opinion of Haneefa
that in such case the resignation of a father
or guardian is invalid.
END OF THE THIRD VOLUME.
VOL. IV.
BOOK XXXIX
OF KISSMAT, OR PARTITION.*
PI i > I — Introductory.
Ch-ip, II.— Of Things which arc fit
Objerts of Partition.
Chap. IIL— Of the Mode of accomplish-
ing Partition,
Chap. IV.— Of Pleas of Error in Par-
tition ; and of Claims of Right in
regard to it
Chap. V.— Of the Laws of Mahayat.
CHAPTER I.
Partition involves a separation, in articles
of iy eight or measurement of capacity. — THE
partition of things held in joint property is
lawful and valid . because the Prophet was
accustomed to make a partition of plunder
and hereditaments : and it is moreover a
practice which no one pretends to controvert.
It is to be observed, however, that partition
may be received in two senses ; for, consi-
• Partition, in the Mussulman law, applies
to joint property in whatsoever manner ob-
tained or acquired. It more immediately
relates, indeed; to the distribution of inheri-
tance : but as the Mussulman doctors make
no distinction, in terms, between a partner
and a parcener (co- inheritance being defined
to be one mode of partnership, Vol. II.
p. 210), the translator u<es the terms partner
and partnership throughout.
dered in one view, it is separation, as it
separates or distinguishes the right of one
man from that of another ; and considered
in another view it is an exchange ; because,
the share or portion which falls to one of the
parties in consequence of the partition is
partly his own original right ; but part of it
was the right of the other during their joint
property ; and this he receives in lieu of that
part of his own right, which remains involved
in the other's share, ft is more particularly
a separation with respect to articles of
weight or measurement of capacity such as
wheat or silver, because of the similitude of
their parts ; or of these articles do not differ
in their properties, the end to be answered
by one parcel of wheat or silver being just
the same as by another (since there is nothing
in the one that was not in the other), it
follows that each person receives his entire
right, and nothing is left in the share of the
one which of right belongs to the other : —
whence it is that one partner may lawfully
take his shars during the absence of the
other ; and also, that if two men make a
joint purchase of any article of weight or
measurement of capacity, and afterwards
divide it each may separately sell the share
which falls to him for a determinate profit
on half the original price.
And an exchange, in articles of dissimilar
parts or unities.^-lr is, on the other hand,
more particularly an exchange with respect
to articles dissimilar in their parts or unities,
such as animals or household goods ; — whence
it is that one of two partners in such articles
cannot lawfully takt bit shire in the absence
566
PARTITION.
[VOL. IV.
of the other ; and also, that if two men buy
any thing of this species, and after* ards
make a division, they cannot separately sell
their respective shares at determinate profit
on half the original cost. Here, however, if
those articles be all of one particular species,
such as a herd of goats, the Kazee, at the
requisition of only one of the partners, must
enforce a partition ; for the properties of all
the goats being nearly the same, such a
partition is, in effect only a separation; —
and the intention of such a equisition being,
that the partner who makes it may enjoy the
use of his own share solely, without any
other person being able to interfere in his
property, it is incumbent on the Kazee to
comply with his requisition. Where, on the
contrary, the joint property consists of
articles of different species the Kazee must
not enforce a partition, as it cannot be made
equitably where each particular thing differs
from the rest in properties — If, however
both the partners consent to a partition of
things of various species, it is lawful.
The magistrate must appoint a public parti-
tioner ; and must apoo.nt him a salary, —
IT is incumbent on the Kazee to appoint a
person to make partitions, and to settle on
him an allowance from the public" treasury,
so as that partitions may be made for the
people without his receiving any hire ; be-
cause, as the making of partitions is a part
of the duty of the Kazee himself (it boing
necessary in order to terminate dispute),
the allowances of the person appointed for
this purpose must be defrayed from the
public treasury, in the same manner as those
of the Kazee : and also because, as the
appointment of a person to make the par-
tition is a benefit which extends to all
Mussulmans, the charge of his maintenace
must be defrayed from the public treasury,
which is the property of all.
Or establish a particular rate of hire for
his work. — IF it be not in the power of the
Kazee to settle the allowance from the public
treasury, he must at all events appoint a
person who will make the partition for a
certain rate of hire, to be paid by the parties
who are concerned and particularly bene-
fited by the division. In this case, the rate
must be moderate and fixed, so that the
partitioner may not be able to make ex-
orbitant demands. — It is, however, m >re
eligible that his allowances be paid from the
public treasury, as this is easier for the
people in general, and precludes, in a greater
degree, the imputations of corruption anJ
injustice.
The parti tioner must be just, and skilful. —
THE partitioner must be a man noted for
justice and integrity; and he must aKo
possess a knowledge of that particular
business
But must not always be the same person, —
THE magistrate must not compel the people
always to accept of one particular person for
their partitioner ; because the transaction
which passes betwixt the partners and the
partitioner is a species of contract ; and it is
not lawful to compel any person to enter
into a contract ; — and also, because, if such
a practice were admitted, the person pos-
sessing the exclusive appointment would
demand an immoderate rate of hire.
The partners may agree to a partition,
procuring (if one bean infant) an order from
the magistrate. — IT is lawful for several
partners to agree amongst themselves, and
to make a division of their joint property.
But if there be an infant among them, it is
requisite that they procure an order from
the magistrate ; for they possess no power
over the infant
One public partitioner cannot be concerned
with another. — THE Kazee must not suffer
the persons employed in making partition
to be concerned together in the hiie or profit
arising from their business, such a conjunc-
tion tending to raise the hire to an exorbitant
rate ; for each of them, when applied to, will
make some excuse for declining the employ-
ment, and they will refer the party who
has occasion for their services from one to
another, until at length he be constrained to
consent to immoderate terms ;— whereas, if
every man is concerned only for himself,
each will readily consent to be employed
for a moderate hire, rather than lose it
altogether.
The partitioner is paid in proportion to the
number of claimants. — THE rate of wages to
a partitioner is regulated by the number of
persons for whom the division is mule,
according to Haneefa. The two disci ^les
maintain that it is determined in proportion
to their respective shares the wages of the
partitioner being on account of their pro-
perty, and therefore determined according to
its extent, like the wages of a public weigher,
or a measurer, or of a person who digs a well
to be held, in joint property, — or like the
maintenance of a slave belonging to several
partners. The argument of Haneefa is, that
the wages of the partition are given to him
for discriminating and separating the shares,
in doing which it signifies not whether the
shares be large or small, since the shares of
the inferior partner is distinguished and
severed by his work, as well as thU of him
who holds a large proportion. It moreover
sometimes happens that the labour in cal-
culating a small share is more than in as-
certaining a large share ; and sometime the
reverse : hence it is difficult to determine how
far the one or the other H attended with the
most trouble ; and therefore the hire must
be referred to th: mere act of dividing off or
discrimiruting. It is otherwise in digging a
well ; for, in that instance, the wage* « re on
account of digging and carrying away the
earth, in which there is difference in the
labour performed for each partner's pro-
portion. With respect to weighing or mea-
suring, if those be performed in order to
effect a partition of any thing (such as whtat
held in partnership) it is affirmed by some
that the same difference of opinion subsists
BOOK XXXIX.— CHAP. I.]
PARTITION
567
betwixt Haneefa and the two disciples :— but
if they be performed merely to ascertain the
quantity of the whole or for any other
purpose than partition, the wages are then
on account of the weighing or measuring,
which is greater in the larger than in the
smaller share. There is also another opinion
maintained upon the authority of Haneefa,
— that the hire of the partitioner falls entirely
upon the one who solicits the partition, and
not on the one who has not solicited it,
because of its being advantageous to the
one, but not to the other.
In the distribution of hereditaments, the
magistrate must previously ascertain the
circumstances. — WHEN several co-partners
appear before the Kazee, and represent that
a tenement or piece of ground which is in
their possession has devolved to them as the
heirs of a certain person, the Kazee must
not make a partition of the house or ground
until they have proved by witnesses the
death of the person, and the number of his
heirs. This is according to Haneefa. The
two disciples say that if they all concur, the
Kazee may make the partition, taking care,
however, to insert in the Kissmat Namma,
or deed of partition, that it was made in
consequence of their declarations.
But not if the property consist of move-
ables. — IF, on the contrary, the joint property
be moveables and not lands or tenements,
and the parties represent that it is their
inheritance the Kazee may, on their repre-
sentation, order the partition.
Nor in the case of property acquired by
purchase. — OR, if the joint property be lands
or tenements, and they represent that they
acquired it by purchase, the Kazee may order
a partition. The argument of the two disci-
ples, is, that possession is an apparent proof
of property, and the concurrent declaration
of all the parties with respect to their several
claims is a proof of their veracity. Besides,
there is no person who either disputes or
denies their allegations ; and where there is
no denier the LAW require no evidence.
Hence the Kazee must order the partition in
the instance above mentioned, a« well as in
cases which relate to moveable property
acquired by inheritance, or landed property
acquired by purchase. It is requisite, how-
ever: that he specify, in the deed of partition,
that it has been made in consequence of their
declarations, in order that his decree may
extend only to those who have attended, and
not to others who may (perhaps) afterwards
appear. The argument of Haneefa is, that
the order which the Kazee gives for the
partition is in fact a decree against the
defunct, by which his right is terminated ;
for until a partition take place, the here-
ditaments are still considered as his estate,
insomuch that if any increase be produced
upon it, such increase is subject to the will
of the deceased declared in his testament,
or is appropriated to the payment of his
debts, neither of which could be the case
after partition has been made. The parti-
tion, therefore, being in fact a decree of the
Kazee affecting the defunct, the concurrence
of a part of the claimants to the suits of the
others is not admitted as an argument of
sufficient weight ; and hence they must
support their claims against the defunct by
evidence; in which case a part of the heirs
arc considered as litigants on behalf of the
defunct. **
OBJECTION. — A part of the heirs cannot
be considered as litigants on behalf of the
defunct, since each individual acknowledges
the claims of th' others and a man who
acknowledges another's claim cannot be re-
garded as his opponent.
REPLY.— A part of the heirs may be con-
sidered as litigants on behalf of the defunct,
although they dp acknowledge the claims of
the others, their acknowledgment being of
no weight ; — in the same manner as where a
man sues for a debt against an estate, and an
heir or executor acknowledges his claim, in
which case such acknowledgment, as being
to the detriment of the others, is not suffi-
cient, but the claimant must produce evidence
before the Kazee in his suit, even against
that heir or executor, before he can establish
his claim against the estate in general to the
prejudice of the whole of the heirs. The
acknowledgment of the heir or executor
being therefore of no weight, he may, with
propriety, be considered as an opponent or
litigant
What is here mentioned is the law with
respect to immoveable property * It is other-
wise with respect to moveable property ; f
because that requires care in keeping, and
there is an advantage arising from the im-
mediate partition of it ; whereas immoveable
property, being by its nature safe, tequires
no care ; — besides, the person in whose pos-
session moveable property remains is respon-
sible for it ; whereas ( according to Haneefa)
he is not so with rcqard to immoveable pro-
perty. It is also otherwise with respect to
landed property acquired by purchase ; be-
cause an article sold is no longer accounted
the property of the seller, although it still
remain undivided; and the partition of it.
therefore, cannot be regarded as a decree ot
the Kazcc, passed against an absent person,
by which his right is terminated.
Nor in case of a partition being demandid
without the parties specifying the manner m
which the joint property was acquired. — IF
the joint owneis of a property request a par-
tition of it, without specifying whether it
was acquired by inheritance, or by purchase,
or by any other means the Kazee may ordei
the partition, this being, in fact, not a decree
against another person, since no other is
acknowledged by them. The author of this
* Arab. Akbar ; meaning houses tene-
ments, &c., such as is termed, in our law,
real property.
t Arab. Mankool ; comprehending every
species of personal property.
568
PARTITION.
[VOL. IV.
work says, that this adjudication is to be
found in the Kitab al Kissmat.*— It is men-
tioned in the Jama Sagheer that when two
men apply for a partition of lands which they
prove by witnesses to be in their possession,
the Kazee must not order the partition until
they also prove, by evidence, that the lands
are their property ; for otherwise it is possible
that they may belong to another person.
Some say that this is agreeable to the opinion
of Haneefa alone ; — but others aver that it
is agreeable to the opinion of all the learned;
and this is approved, since it is unnecessary
to order the partition of landed property in
order to preserve it. Besides, the right of
property being the ground on which partition
is made, it cannot take place until that right
be established by evidence
A partition may be granted on the requisi-
tion and testimony of any two heirs ; but an
agent or guardian must be appointed to the
charge of the shares of the absent or infant
heirs. — WHERE two heirs appear and pro-
duce evidence to prove the death of their
ancestor, and the number of his heirs, and
the house or other inheritance is in their
possession, but one of the heirs is abspnf, —
in this case the Kazce may order a partition,
if the heirs who attend require it, appointing
an agent to take possession of the portion of
the absentee ; or if, under the same circum-
stances, one of the heirs be an infant, the
Kazee may order a partition, appointing a
guardian to take possession of his portion ; —
because in so doing the interest of the infant
or absentee is promoted. — (But here likewise
the production of evidence is indispensable,
according to Haneefa, in opposition to the
opinion of the twj disciples, as before stated )
It would be otherwise if they had become
proprietors of the house bv purchase ; for in
that case no partition could be made in the
absence of any of the partners. This dis-
tinction between the case of property ac-
quired by inheritance and property acquired
by purchase is made on the following grounds.
— An heir is master of his ancestor's estate
as his substitute, insomuch that he has the
power of returning (on discovering a defect)
any thing which his ancestor may have
bought, or, in like manner, he may be com-
pelled (on the discovery of defect) to take
back any thing which his ancestor may have
sold ; and he is likewise subject to become
deceived f in consequence of the purchases
of his ancestors (that is to say, if the
ancestor purchase a female slave and die,
and the heir afterwards have a son by her,
and the slave then prove the property of
anothex person, the son born of her is free,
but the heir must pay the value of him to
the paoprietor of the slave, and he may a<gain
recover it from the person who sold the slave,
* A collection of laws compiled by Mo-
hammed, the disciple of Haneefa.
t Arab. Magroor. The meaning of this
term hai been fully explained elsewhere.
in the same manner as if he were the ancestor
who made the purchase). One of the heirs,
therefore, stands as litigant on behalf of the
ancestor, and the other is litigant on his own
behalf ; and the partition, under such cir-
cumstances, is in fact a decree passed in the
presence of both the parties. The purchaser,
on the contrary, becomes the proprietor of
the thing bought by a recent title of pro-
perty, and not in the manner of a substitute,
insomuch that he cannot, on discovering a
defect, return the article to the person from
whom the late seller had before bought it.
Hence neither of the two present purchasers
can stand as litigant on behalf of an absentee.
Thus there is an evident difference between
the two cases.
And it cannot be granted where the pro-
perty, or any part of it, i* held by tin absent
heir, or his trustee, or an infant — IF the
land,* or a part of it, be in the posscj-M.m of
the absent heir, or of his trxistce. or \ Jut
of an infant heir, ti.-- rurtition mu-»t «•••• h*
ordered, whether tK- tieirs who are r '
produce the evident or not. This i *»•
proved ; for the partition, in such a i .
would in fact be a decree of the Kaz^e a^j. »•».
an absentee, or an infant, divesting tluii «
something they possess without any litigai-
appearing on their behalf :— nor can the
trustee of the absentee stand as litigant
on his behalf in any thing which may V-
attended with loss to him ;— an i it is ille, .il
in the Kazee to pass a decree without all the
litigants being present.
IF only one heir appear, a partition must
not be ordered, although he produce the
necessary evidence, for it is requisite that
both the litigants bo present ; and one man
cannot stand as litigant on both sides. It
is otherwise where two appear, as has been
already shown.
The partition maybe ordered although one
of the requiring parties bean inf'int, or , one
an infant heir, and the other a legatee,— If
two heirs appear, one an adult, and the
other an infant, the Kazee must appoint a
guardian to the infant, and order the parti-
tion as boon as evidence is produced ; and in
the same manner, if an adult heir appear,
and also a legatee of one third of the estate,
and they demand a partition, and produce
evidence (one to prove that he is heir, and
the other that he is legatee), the Kazee must
order the partition ; for in each of these
cases the litigating parties are both supposed
to appear, — the adult heir being litigant on
the part of the deceased, and the legatee on
his own behalf, — and, in the same manner,
the guardian being litigant on behalf of the
infant, — whence it may be said that the in-
fant (as it were) has appeared in his own
proper person as an adult, because of the
guardian being his substitute.
• Arab, Akkar ; meaning any immoveable
property (and in this sense is the term land
to be understood throughout).
BOOK XXXIX.— CHAP II.]
PARTITION
569
CHAPTER II.
OF THINGS WHICH ARE FIT OBJECTS
PARTITION.
OF
An estate may ha dntriluted on the requi-
sition of anv on* partner, whose share sepa-
rately is capable of heing converted to uv.-. —
WHERE the respective share of each of the
partners is capable of being separately con-
verted to use, if any one of them demand a
partition it must be granted ; because parti-
tion is an indisputable right, when required
in any article capable of partition; as has
been before explained If, on the contrary,
the share of one partner only be fit for use,
and not that of the other, because of its
IvMiig extremely small, and the owner of the
greater share demand a partition, the Ka^ee
must grant it ; but he must not grant it at
the requisition of the other partner; for as
the former can reap a benefit from h-s share,
his demand is worthy of regard; but as the
latter can have no other motives for his re-
quisition than malice, and a des;re of giving
trouble, it is not to be attended to Khasaf
holds the reverse of this doctrine, "because
(says he) the groat partner, in making his
demand, occasions an injury to another,
whereas the sin ill partner, in making his de-
mand, submits to his own injury. " — Hakim
•Shahced, on thi other hand, mentions in his I
abridgment, that "the K.r/pc must order the
partition at the request of either of the part-
ners for the great partner is desirous of
enjoying the use of his shire, and the small
mrtncr voluntarily ^ubmits to his own in-
jurv." The rirst of these opinions, however,
is the most authentic
If the shares he separately useless, the
assent of all the parties is requisite. — IF the
shares of each of the partners be so very
small that they would separately be of no
use, the Kazee must not order a partition
unless both partners acquiesce ; for when-
ever partition is compulsively made, it is
with a view to promote utility; but, in the
present instance, all utility would be de-
stroyed by it, and therefore it cannot take
place without the consent of both the part-
ners, as they must necessarily be the best
judges in a matter which concerns them-
selves, and the Kazee can only be guided by
appca ranees.
A partition must be ordered where the
property consists of articles of one species
(not being land or money) — WHEN the joint
property is Arooz* (that is, neither dirms,
dcenars, lands, nor houses), the Kazee must
order the partition, provided it [the property
inciucstion] be all of one species, such as
articles of weight or measurement of capa-
city, or similars of tale, or gold, silver, iron,
or copper, or cattle of one species, whether
*Some lexicographers define Arooz to
signify household furniture. (Sooraj-al-
Loghat.)
camels, oxen, or coats ; for as, in this case,
there can be no difference in the design, the
partition may be effected with equity, and
utility may thereby be accomplished.
But not where it convsts of various species.
— THE Kazee must not order a partition when
the joint properly is of various species, such
as a camel and a goat, or a house and an
ass; because, as articles of different species
cannot be indiscriminately blended, the par-
tition, in this instance \vmild not be a sepa-
ration ami distinction, but rather an ex-
change, which must always be effected by a
mutual concurrence of the parties, not by the
decree of a magistrate
Or of household vessel* — THE K.izcc must
net order a partition of household vessels,
as those are suhjrcl to the rule of tliveisity
of species, because of different i* of \vuik-
manship.
A partition may be made of cloth of an
equal quality — HE may make a partition of
Herat cloths, as those cire all of one quality;
but he must not make it ot a single piece of
cloth which is not uniformly alike through-
out; for the division of one picrc or cloth
occasions an injury, as it eanrot be effected
without cutting it; neither must he make a
partition of two pieces of cloth where they
are of unequal value It is otherwise where
there are thtee pieces, the value rf one of
which is equal to that of the other two: or
where the value of one of them is one dirm,
that of another on-' uirm and a quarter, and
that of the third one dirm and three quar-
ters; for, in the fust case, he must give one
piece to the one partner, and the other two
to the other partner; and, in the cccond case,
he must give to one of the partners the
second piece, valued at one dirm and a quar-
ter; to the other the third piece, valued at
one dirm and three quarters, and must leave
the first still to be held in partnership, one
fourth appropriated to one partner, and three
fourths to the other, as it is lawful to divide
a part of a joint property, niul to leave a part
undivided.
But not of jewels or slaves — HANEEFA is
of opinion that slaves and jewels must not
be divided by the Kazee, " lvcau.sc of the
great difference which is to be found amongst
them. The two disciples hold, that he may
make a division of slaves, for this reason,
that they are of one species, like camels, or
goats, or captives taken in war. The argu-
ment of Hancefa is, that among the indi-
viduals of the human species there is a wide
difference, because of their various charac-
teristics; and hence slaves ar*. in effect, of
different kinds It is otherwise among
animals, for with them there is little diffe-
rence to be found betwixt the individuals of
the same genus; and although the male and
female of the human race be held as different
species, yet the male and female amongst
animals are reckoned as the same species.
It is also different with respect to slaves
taken in war, as it is in their value that the
captors hlod a right, whence it is lawful for
.he Sultan to sell them and make a division
rf the price; whereas, in a case of partner-
ship, the right of the partners is connected
with the substance of the article, as well as
with the property it involves. Hence there
is a difference betwixt plunder and partner-
ship property.— Some are of opinion that
jewels cannot be divided when they are or
different species, such as pearls and rubies,
Others say, that where the jewels are of
large grains they cannot be divided, because
of the great difference that may be betwixt
them ; but that when the grains are small.
the difference being inconsiderable, the
jewels may be divided. Others, again,
maintain that no jewels, whether of small
or large grains, can be divided, because the
difference betwixt them, and the dilficulty
of ascertaining their value, is greater than
in the case of slaves, insomuch that if a
man marry a woman, and in general terms
stipulate to give pearls or rubies as her
dower, such stipulation is invalid; — whereas
if he stipulate, in general terms, to give
slaves, it is valid. The Kazee, therefore, is
not to exert his authority in making a parti-
tion of jewels.
Partition cannot be made of a bath, mill,
or well, without the consent of all the parties
— THE Kazee must not order the partition of
a joint mill, bath, or well, unless with the
concurrence of all the partner (and such
also is the rule with respect to a wall which
stands betwixt two h >uses) ; for if, in the^-e
cases, a partition were to take place, it
would be injurious to all parties, as the indi-
vidual share of each would then be useless.
Partition of houses and tenements. — T is
proper to remark, that a single roofed plucf,
surrounded with walls, with a door or entry,
is termed a Bait, or room. A Manzil, or
tenement, on the contrary, is a place com-
posed of different rooms, a roofed court.*
and a kitchen, such as a man may reside in
with his family. A Dar, or house, on the
other hand, is a place consisting of various
rooms or tenements, with an open court. A
tenement is therefore superior to a room and
inferior to a house These 'are the defini-
tions of Shims-al Ayma in his book on
Shaffa. In this work, whenever the general
word Khanna [house] is used, we mean such
an one as we have now described, under the
denomination of Dar, excepting only where
we mention an under hous* in contradistinc-
tion to an upper house, and then we only
mean a Bait or a Manzil.
IF there were several houses held in part-
nership or coparcenary in one city, each
house must be separately divided, according
to Haneefa. The two disciples say, that if it
be expedient for the partners the whole of
the houses must be united in one general
partition, and not divided separately. All
*Arab. Sahn ; meaning ihe interior square
of a dwelling* common to all the family and
which, in large edifices) is open, but in small
ones is covered in.
PARTITION [VOL. jV.
the houses, therefore, must be considered
merely as one house, cc nsisting of various
apartments, and all tho shares of each part-
ner must consequently concentre in one of
the houses, so that it may be his entirely.
The same difference of opinion also subsists
regarding the case oi lands held in partner-
ship or coparcenary, and dispersed in dif-
ferent situations. The argument of the two
disciples is, that all the houses ar*», on the
one hand, of one species with respect to
name, appearance, and original design; as,
on the other hand, they are of different
species with regard to their paiticiilar quali-
ties, and their commodiotisness for habita-
tion, which depends on size: and so forth;
whence it must be Jefr to the Kazee to
iie-teimine their different deqrees ol supe-
riority.— Theaigument of Hanecfd is, that
regard .should be paid only 10 what they are
in reality, with respect to their qualities;
and that in them they may greatly differ on
account of the difference of the cities, lanes,
or neighbourhood, in which they are situ-
ated, and their proximity to or distance from
water or a mosque; and that therefore it is
impossible to obsorv*» an equality in the par-
tition without dividing encn house scpa-
iatfly ;- -whence it is that a man cannot
appoint an agent to purchase a house in
general terms;-— an d so likewise, that if a
man marry, assigning as a dower " a house"
(in general terms;, his mention of the house
is invalid, — in the same manner as holds
where a man assigns "cloths" (generally)
as a dower, or appoints an agent to purchase
" cloths." — It is otherwise with respect to
a single house, held in parlnciship or co-
parcenary, composed of diiferent rooms; for
as, in such case, to divide each room amongst
the copartners would be productive of incon-
v?mency to all; the whole house is therefore
divided at once
WHEN t>vo houses held in partnership, are
ated in different towns, we learn from
Jlillal thdt it is the concurrent opinion of
Haneefa ami A boo Yoosaf that both houses
shall be divided separately. Mohammed,
on che contrary, maintains that they must
be divided at once, as well as the houses
situated in tht same town.
ROOMS, whether situated all in the same
quarter, or in different quarters, must be
divided at once, for the difference amongst
them is inconsiderable Manazil Molazika
(that is to say, adjoining tenements, or such
as are in the same house, one part of them
being contiguous to another), arc considered
as rooms: whereas, Manazil Motbayena
( which _ is the term used for apartments not
adjoining, in contradistinction to the other),
are considered as houses, — a Manzil or tene-
ment being the middle term betwixt a house
and a room, and resembling both.
IF there be a partnership in immoveable
property of two species such as in a house
and a piece of ground, or in a house and a
shop, the Kazee must divide eac separately,
they being of different species.
BOOK XXXIX.— CHAP. III.]
PARTITION
571
CHAPTER III.
OF THE MODE OF ACCOMPLISHING PARTITION.
The par titi oner must draw a plan ; and
rrust make the distribution equitably by
measurement or appraisement — IT is incum-
bent upon the partitioner to draw on paper a
plan of the thing which he divides, so that
it may remain on his memory. — He must
likewise observe an equality in the partition,
that is to say, he must divide the article into
due proportions ; and it is also recorded that
he ouyht to separate each share and measure
it, so that its extent may be known. He
must, moreover, appraise the article, as it is
requisite, fur his further guidance, that the
value be ascertained.
Partition of housts how accomplished.—
SUPPOSING the article to be a house, in sepa-
rating the shares he must also separate the
road and the drain belonging to it, if pos-
sible, so that one share may no longer have
any connexion with the other, in order that
every 'cause of dispute may be terminated,
and that the intention of partition may bo
completely accomplished. In doing this he
must term one share the first share, that
which lies n^xt to it the second, and that
which lies next to it the third share, and so
on ; and he must then write do*n their
names, and draw them like lots ; and he
that draws the first name gels the first
share, he that draws the second gets the
second share, and so on to the end. The
article must, moi cover, be divided into frac-
tions equal to the smallest proportion ; that
is to say, if the smallest proportion held by
any of the partners or coparteners be a third,
the whole must be divided into three parts ;
or if the smallest proportion be a sixth, the
whole must be divided into six parts ; so
that the division may be made accurately.
Thus, if an estate is to be divided betwixt
two heirs, the one being the son and the
other the daughter, it must be divided into
three shares, one termed the first, the next
to it the second, and the next the third ; and
the partitioner is to write the names upon
billets, and cause them to be drawn like
lots ; and if the son's name come up first, he
gets the first share, and the one next to it,
and the third goes to the daughter ; — or, if
the daughter's name come up first, she gets
the first share, and the other two fall to the
son.
THS drawing of lots is proposed in order
to give satisfaction to the parties, and to
prevent the partitioner from being influenced
by partiality or favour. It is not, however,
absolutely necessary ; and if the partitioner
choose to appoint a particular share to each,
it is valid ; for the making the partition is
an act of magistracy, and the authority of
the partitioner must therefore be enforced.
In the partition of landed property, a com-
position m money cannot be admitted.— THE
partitioner, in making a division of landed
property, must not annex a consideration
in dirms or deenars without the concurrence
of the parties ; that is to say, if he make
one share less than the other, and. as a
compensation, annex to it a sum in dirms, it
is not valid, unless they consent ;— for the
partnership is not in dirms, and partition is
one of the rights of the partnership. Besides,
if dirms be admitted into the transaction, it
destroys the equality of the partition ; be-
cause one of the partners gets the property ;
and is liable for the dirms which have be-
come the right of the other ; and there is a
possibility that he may never pay them, by
which means the other would lo^e his right.
Partition of a house, with a piece of ground:
— IP the partnership pioperty consist of two
things, namely a house, and a piece of ground
each, according to Aboo Y.-osaf, must be
divided separately, agreeably to its value ;
for it is only by ascertaining the value of
cai.h that an equality can be observed in the
partition. It is recorded from Haneefa that
the ground may be divided agreeably to its
measurement, and afterwards he on whose
share the hou^e is situated, or whose share is
the most eligible, must pay a sum in dirms
to the other, so that an equality may be
effected ; — and that thcrcfoie dirms may be
introduced as auxiliaries in the division when
necessity lequires it. Mohammad in this
case maintains that the person on whose
share the house is situated must give to the
other partner a space of ground equal in
value to it If, however, his share (from its
containing the house) be still the most valu-
able and it be impossible for him to effect an
equality for want of enough of ground to
comp nsate for the value of his house, he
may then give dirrns equivalent to the ex-
cess ; for as the necessity exists only in that
degree, the original rule of partition by mea-
surement must not in any greater degree be
abandoned. This is conformable to the
opinion delivered in the Assil [the Mabsoot]
Partition of land where there is a road
or drain. — IF the partitioner 5*0 divide the
property, that the road or drain of one runs
through the share of the other, and no condi-
tion had been expressed regaiding this mat-
ter, the case then admits of two predica-
ments.— I It is possible for him to turn the
road or drain another way, so that it pass not
through the share of the otrur ; — in which
case the partition is valid ; — for it is not pro-
per that he let the road or drain of one man
pass through the share of the other ; on the
contrary, it is incumbent on him to turn it
another way, even though each individual
may have mutually stipulated that they were
to enjoy their respective shares "with all the
rights and immunities belonging to them ;"
because the intention of portion is to sepa-
rate and discriminate the proportions of each
partner ; and as it is possible, in the present
instance, without injury to either, to effect
such a separation and discrimination com-
pletely, so as that no connexion or depen-
dance may remain betwixt the shires, this is
therefore indispensable. —It is otherwise wirh
572
PARTITION.
[VOL. IV.
respect to lands sold with an express condi-
tion^that ''they are sold with their immuni-
ties/1 for here, notwithstanding the connexion
or dependence which may subsist betwixt
them and the lands of another, the intention
of selling, which is to transfer the right of
property, is nevertheless fully accomplished
— II. It is (or may be) impossible to turn
the road or drain another way, so that it
pass not through the share of the other : —
and this may happen under two different cir-
cumstances : — FIRST, where the parties have
not stipulated to one another the enjoyment of
their shares "with all the rights and immu-
nities belonging to them ; "—in which case
the partition must be annulled, an account
of the connexion and mixture of property,
which renders it inefficient, the ends of par-
tition (namely, separation and discrimina-
tion) not being thoroughly accomplished;--
the partition must therefore, in this instance,
be made anew, in such a manner, that the
road and water- drain of each may be sepa-
rate. (It is otherwise with respect to lands
sold; for the object of a sale is the transfer
of right of property, which the purchaser
may fully possess without being able to enjoy
immediately the use of it, whereas the inten-
tion of partition is that the use of the pro-
perty may be enjoyed in the fullest degree,
which it cannot be unless a separate road be
made.)— SECONDLY, where all the parties
have stipulated that they shall enjoy their
respective shares with all the rights and im-
munities belonging to them ; in which case,
the partition is valid, and the road and water-
drain are included in it, since the end of
partition is that each may enjoy *he use of
his property, and it is impossible perfectly to
enjoy the use of the grounds without a road
and water-drain. The road and water-drain
are therefore, in this instance, included in the
partition, provided the parties mutually sti-
pulate to each other the enjoyment of their
shares with all their respective rights : as how-
ever, the object of partition is to discriminate,
which requires a complete separation of all
connexion in their respective shares, the road
and water-drain are not included, unless such
a stipulation be particularly made. It is
otherwise with respect to lands farmed ; for
the intention of farming being to enjoy the
use of the lands, which cannot be done with-
out having road and water- drain, it follows
that if these articles should not have been
expressed, they are nevertheless included in
the farm.
In case of a dispute concerning the road, it
must be divided.— IF the parties differ regard-
ing the road, some of them desiring that it
should remain, as formerly, in common, but
that all the rest of the property be divided,
and others of them opposin • this, in such
case, provided it be practicable, the magis-
trate must divide the road, and assign a
part of it to each particular share ;— or, if
this be impracticable, he must leave the road
out of the partition, which must neverthe-
less be made, in order that the parties may
enjoy the full use of all their property ex-
cepting the road.
IF the parties differ regarding the extent of
the road (that is, regarding the height and
breadth which ought to belong to each), the
Kazee must regulate their proportions by the
breadth and height of the doors of their re-
spective houses as that is sufficient to answer
their necessary occasions. The advantage of
this arrangement is, that if any of them be
desirous of making a projection or terrace
from his house over the street he may do it
above the height of his door, but not below
it ; and the road will still remain in common,
according to their several proportions, in the
same manner as before the partition ; for the
partition (as we have observed above) did not
take place regarding the road
The parties may make, a private agreement
with regard to it. — IF two partners in divid-
ing a road, agree that the one shall have two
thirds and the other only one third, such a
partition is valid, although the house be
held betwixt them in equal proportions ; for
in partiton it is lawful to give more or less
than his proportion to one partner, provided
both of them agree to this
Complicated partition of different houses
and tenements. — IF two partners hold a
house, the upper floor of which is held by a
stranger, or which has no upper floor and
likewise another house, the under floor of
which is held by a stranger, and also a
complete house (that is, onsoftwo stories),
in this case the Kazee must appraise each
house separately, and make his division ac-
cordingly. Mohammed alleges that this is
the only lawful mode. Aboo Yoosif and
Haneefa are of opinion, that he ought to
make the partition according to measure-
ment. The argument of Mohammed is, that
the lower floor has many advantages and
conveniences which the upper floor cannot
possess, such as walls, necessary houses,
stables, and so forth ; and that therefore the
equality of partition cannot be effected but
by an appraisement. The argument of the
two disciples, on the other hand, is, that the
partition, if possible, ought to be made by a
measurement, since the partnership subsists
in a thing capable of measurement, and not
in the value of that thing. They afterwards
however, differed regarding the mode of
measurement ; Haneefa contending that one
span of the lower floor should be held
equivalent to two spans of the upper floor ;
and Aboo Yoosaf maintaining that a span of
the one is equivalent to a span of the other.
Some have thought that the contradictory
opinions of these three ages ought to be
ascribed to their different places of abode,
and the periods in which they lived ; for
during the time of Haneefa the inhabitants
of Koofa (the place of his residence) preferred
the under floor to the upper ; whereas after-
wards, in the time of Aboo Yoosaf, the
people of Bagdad (where he lived) held the
upper and the under floor in equal estima-
tion ; and Mohammed observed that, on the
BOOK XXXIX.-CHAP. IV.]
PARTITION
573
contrary, the taste of mankind differed,
some preferring the upper and som? the
under floor, and others holding them in
equal estimation. There are again some
who, instead of ascribing the opinions of the
three sages to the prevailing customs and
notions of the ages and places in which they
!]y£d' are rather for deriving the origin from
different principles of law. Thus, in sup-
port of Haneefa's doctrine, it is argued, that
the advantages of an under floor are double
those of an upper one ; for the advantages
of the under floor remain after the upper
one is ruined and destroyed, whereas those
of the upper floor do not remain after tha de-
struction of the under one. In the under
floor, moreover, there are not only the ad-
vantages of habitation, but also those of
foundation ; for th- proprietor of the under
floor may build if he pleases, but the pro-
prietor of the upper floir can only enjoy the
advantages of habitation, as it is not lawful
for him to erect any buildings without the
consent of the proprietor of the ground
?°k ' anc* uPon ^ese considerations a span
or the under floor should be reckoned equiva-
fA t0 tw° &pans °f the uoper. In favour
ot Aboo Yoosaf's opinion, on the other hand,
it is alleged, that habitation is the creat
end of both, and that both are equally fit to
answer that end ; whence it is lawful for
the proprietor of either of them to erect any
nuildmgs that are not productive of injury
to the other. Lastly, it is urged, on the
P*rt of Mohammid, that the advantages of
an upper and an under floor are according to
the seasons of summer or winter, the violence
°* thf. wind, the temperature of the air, and
the different climites or countries in which
they are situated ; whence it is impossible to
establish any just rule of partition, but by
appraisement. In modern times the law is
administered agreeable to the adjudication
of Mohammed, which does not require any
comment or elucidation —The mode of parti-
tion prescribed by the doctrine of Haneefa,
in the case in question, is as follows. — The
partitioner must first set against the upper
floor house (which we shall suppose measures
one hundred spans) a part of the complete
house equal to thirtv-three one-third spans ;
because an upper floor is rated at half the
value of an under floor ; consequently thirty-
three and one-third spans of the under floor
of the complete house are equal to sixty six
and two-thirds of the upper-floored house ;
and as those sixty-six and two-thirds, to-
gether with the thirty-three and one-third
spans of the under floor, form the complete
house; the whole amount exactly to the one
hundred spans of the upper floor house.
The partitioner must then set sixty-six and
two-thirds spans of the complete house
against the under floor house (supposing it
to measure one hundred spans), for the upper
floor o* the complete house is rated at only
halfthf value of the under fl or house, and
s;xty-six and two-thirds spans of ^oth the
floors of the complete house are equal to- the
one hundred spans of tha under floor house.
The mode, on the other hand, of making the
partition, according to Aboo Yoosaf's doctrine,
is as follows. Let one hundred spans of the
upper floor house be set against fifty spans
of the complete house : or, let one hundred
spans of the under floor house be set against
fifty spans of the complete house ; for, ac-
cording to him, the upper and the under
floor are held in equal estimation ; wherefore
fifty spans of the complete house, compre-
hending fifty spans of the under floor, and
fifty spans of upper floor, must be equal to
one hundred spans.
In disputes after partition, the evidence of
two petitioners must be admitted.— IF the
partners differ aftsr partition, one pleading
that "he has not received the whole of his
share, a part of it still remaining in the pos-
session of the other " — and the other denying
this, and the two partitioners (or any other
tw3 person) testify that : " they have made
a partition/' their evidence, according to the
two disciples, must be admitted. Mohammed
says that it cannot be admitted, because the
evidence they give relates to their own act,
and is consequently inadmissible in the same
manner as the evidence of a man relative to
some act of his own, on the occurrence of
which a person rmy hwe formerly suspended
the emancipation of hit slave. The argu-
ment of the two disciples is, that th» wit-
nesses, in fact, testify to the act of others
(n^mel ', the act of seizing and possessing),
and not to their own act ; because their act
was merely discriminating and separating,
to which evidence is not required ; hence
their t stimoney must be admitted. Tahavee
observes that where the partitioners receive
pay for making the partition, it is universally
allowed that their evidence cannot be ad-
mitted ; and indeed several doctors of our
sect are of the same opinion ; alleging that
as in that case, their evidence tends to prove
that they have fully and accurately per-
formed the work for which they received
pay, it is in the nature of a representation
on their own behalf. Our author, however,
does n U subscribe to this reasoning ; for he
remarks, that the two partitioners could not
have a view to their own interest in their
evidence, as the partners have agreed that
they fully and accurately performed the work
of partition for which they receive their pay,
the only question in dispute being the seisin
and possession ; wherefore no imputation of
falsehood ought to f*ll on them.
But not that of one partitioner. — IF only
one partitioner give evidence, it must not be
admitted ; for the evidence of one man alone
against another is not sufficient.
CHAPTER IV.
OF PLEAS OF ERROR IN PARTITION J AND OF
CLAIMS OF RIGHT IN REGARD TO IT.
Ap/ea of error cannot be admitted, where
the party acknowledges having received his
374
PARTITION.
[VOL. IV.
share, unless it be supported by evidence. —
WHERE one of the partners complains of an
error in the partition, and that a part which
ought to have fallen to him by the partition
is in the possession of another, in this case;
if he has before acknowledged that he had
received his share, his complaint must not
be admitted unless supported by evidence ;
for it is, in fact, sueing to cancel the par-
tition after it has been accomplished ; and it
is to be presumed that there is no error, and
that his complaint is false. If the com-
plainant cannot support it by evidence, the
other muPt be required to deny the com-
plaint upon oath ; and if they refuse to
swear, their refusal is construed as proof in
favour of the complaint, and the Kazee
must cause their property to be divided
anew, agreeably to their several proportions,
as this is dealing with them according to
their own suspicions. The author of this
works thinks that in the above case the com-
plainant's suit should, on account of his con-
tradicting himself, be wholly rejected.
A complaint of after- assumption is a com-
plaint of usurpation. — IF the complainant
allege that he receive his whole right,
but that the otherwards took a part of
it, the denial of the other, on oath, must be
credited, as this is in fact a complaint of
usurpation.
In case of a complaint of non-delivery :
both parties are suiorn, and the partition is
dissolved and made anew. — IF he allege that
"a certain village fell to him in consequence
of the partition, but that the other had not
delivered it up to him," in this case pro-
vided he have not previously acknowledged
the obtaining possession of his share, and
the other contradict him, both must be re-
quired to swear ; — because the dispute is with
respect to the quantity which the complainant
received in consequence of the partition ; and
hence the difference in the present instance is
analogous to a dispute concerning the quan-
tity of an article of sale,— in which case a
mutual oath is tendered to the parties (as
has been fully explained under the head of
SALES) ; and so here likewise.
A plea of error cannot be heard, if the
partition was made by the parties. — IF one
of the parties complain that an error took
place in the division, his complaint must not
be attended to, it being held in the same
light as a complaint of a fraudulent bargain,
which in case of sales concluded by the prin-
cipals themselves cannot be heard. In par-
tition, there, as in sales, since both parties
have mutually concurred, such a complaint
cannot be heard. If, however, the partition
was made by the order of the Kazee, and
extreme fraud be alleged, the complaint
must be heard, as the stability of the Kazee's
authority depends on justice.
Case of a claim laid to a particular room
in a house, after partition.— If a house be
divided betwixt two partners, each receiving
a part and afterwards, one of them claim a
room in the possession of the other, alleging,
that "it is one of the things which ought to
have fallen to him in cor sequence of the
partition," and the other deny this, — in the
case, as the plaintiff complains of usurpa-
tion, it is requisite that he bring proper
evidence ; and if both bring evidence, that
adduced on the part of the plaintiff, who is
not in possession, must be admitted in pre-
ference to that of the other ; for it is a nnaxim
of the law that the evidence on the side of
the party who is out of possession is prefer-
able to that on the side of him who is in
possession.
IF the complaint above mentioned be pre-
vious to an avowal of the plaintiff's having
ever acquired possession, both parties must
be required to swear, and the partition must
be annulled, and performed anejv. In the
same manner, also, if two partners differ
regarding their boundaries, the one alleging
that "a certain boundary belongs to him,
but has fallen into the possession of the
other," and the other alleging the same
thing regarding another boundary, and both
produce evidence, the Kazee must decree, in
favour of each, that boundary which is in
the possession of the other. If only one
produce evidence, the Kazee must pass a
decree only in his favour ; but if neither of
them produce evidence, they must bo«h be
required to swear, in the same manner as in
case*? of sale.
Section
Of the Laws which prevail in a Claim 0,
Right*
In acase of claim set up to an indefinite
patt, after partition, it must be dissolved
and made anew. — IF a house (for instance)
held in partnership be divided, and after-
wards an undefined part of the whole (such
as a half or a third), prove the right of
another, the partition, according to all our
doctors, is null, and must be made anew.
If a definite part be claimed, after par-
tition, it must he compensated far from the
shares of the other partners, or, the partition
must be dissolved and executed anew — IF a
particular and defined part of what has fallen
to one oi the partners, in consequence of par-
tition should prove the nuht of anotrer
person, the partition is valid, according to
all our doctors, and become not void with
respect to what remains after the right of
the other person has been separated : — but
the party from whose share that nyht is
taken has in his option either to dissolve the
portion (thereby restoring the property to
the state in which it stood previous to the
partition) and then to demand a new OPC. —
or, if he choose, he may let the partition
hold good, and exact from his partner's share
a compensation for that part of which he has
* Arab, Ishtihkak ; meaning a claim set up
to the subject of a deed or contract, by some
person not concerned in such deed or con-
tract.
BOOK XXXIX.-CHAP, IV.]
PARTITION
575
been deprived by its proving the ri&ht of
another.
And i so likewise, if an undefined pail he
claimed — IF, after partition, an undefined
part of the share of one of the pan nets
(such as a half), prove the right of another
person, the partition is valid "with respect to
the remainder, and does not become void
according lo Hancefa and Mohammed ; but
the partner upon whose share the claim
operates has it in his option to annul the
partition (restoring the conce.n to the btate
on which it previously stood), and then to
demand a new partition ; — or, il he choose,
he may let the partition hold good, and exact
from his partner a compensation for the half
of his share which he has lost, anti which is
equivalent to one fourth of the share in that
ptirf HIT'S possession. According to Abou
Yoosaf, the partition is in this case null,
since by an undefined proportion of one of
their shares proving the right of another per-
son, a third partner is created, without whose
concurrence the partition is void ; in the same
manner as where an undefined part of the
v\ hole article proves the r ght of another person.
The reason of this is, that where an undefined
proportion of one of their shares becomes
the right of another; one of the objects of
partition (namely, separation) is destroyed,
sinch the share of one of the partners by j
that means becomes in itself a malUr of I
partnership ; and he must have lecouisc t* |
the share of the other for an undefined part,
equal to that proportion of his neht of vxhieh
he has been depiived. It is otherwise in the
preceding case, where a particular and de-
fined part of one of their shares proves the
right of another ; fur in that case the object
of partition (namely, separation) still exists
with respect to the remainder. The argu-
ment of Jianeefa and Mohammed is, that the
object of partition, namely separation, is not
defeated by an undefined proportion of one
of the partner's shares becoming the right
of another person. Hence a partition of
this nature, originally made, would be valid ;
— as where, for instance, the first half of a
house is jointly held by two partners, Zcyd
and Amroo, and by a third person, named
Khalid, one half thereof by Khalid, and the
other half betwixt Zeyd and Amroo ; the
second half being held jointly between Zeyd
and Amroo, Khalid holding no share thereing
— in which case Zeyd and Arnroo might law-
fully make a partition betwixt themselves,
Zeyd getting the whole of their joint share
in the first half of the house and one fourth
of the second half; and Amroo getting thiee
fourths of the second half; and it is in the same
manner ultimately valid ; the case becoming
Fimilar to that in which a defined proportion
of one of the shares proves the right of
another. It is otherwise where an undefined
proportion of the whole house, including both
shares, proves the right of another ; because
in this latter case, supposing the partition to
be valid, an injury is sustained by the third
person, whose right was manifested after the
partition, since he must thin accept his pro-
portion, not in a compact manner, but dis-
ptrseil, fiom the shales oi each of the others ;
whereas, in tht former case (in which an
undefined pioporiiun ot une ot the slums
proves the light of another J, lit. f-i'fiers no
injury. '1 hus ilu re is dntvi''uit difference
between tvvo casto In shun, the nature
of the case in quesiun is this that one ot
tVrO partners takts one third < i a house, and
the otht'i takes tin. remaining two thirds ;
the value of the first thud 1-eing equal to
that of tliv utlier luo thiru:- ; and after-
wards one hull ot the first thiul proves
the light ul iiiiotlur p^r^on ,- -in which case
(according lo 1 lantefa aim Moh.iiMnidj, the
first i-arlinr has it in hu> option to annul
the partition ; for if it continue valid, hi"
share is cLfeeiive, hecauae of lU being dis-
persed, i -ait in the first third ot the house,
and part in the tv\ro last thiuls ; — or, if he
pKdse, he in.\v take one fuuiin of the share
which fell 10 the second pailner ; tor if the
whole ot Ins fihe lust partner's) share had
proved the right of a third person, he would
have been entitled to take one half of the se-
cond partner's share ; when, fore (arguing of a
part from the who'e) si me one half of his
share proved the ri"ht of the third person,
he is entitled to take one half oi a holt" of
the second parlnci's share, \\hich is equal to
one fourth.
IF the, partner to whose for the first h If
falls should sell a ni"ietv of it, and aftci-
wards the otlu r mouiy pnwe the right t»f
another, he is ^till entitled to <-ne lointh oi the.
second half in th'» pots'SMun t-i his co-part-
ner, for the reasons hciou i.sM".ncd ; and his
option of annulling ihc p,iititu»n drops, be-
cause of his having sold a part of his share.
This is according lo Jlaneifaand Mohammad
Aboo Yoosal maintains that the second half,
in the p-^essiun ol the co-partner, must he
divided equaly betwixt them ; and that the
first partner foifeits to h's en- partner one
half ot the price for which he sold a part of
his share ; for (agreeably to his tenets) the
original partition is invalid ; and as an arti-
cle of whu h a person obtains possession by
an invalid deed becomes ins properly, he
may lawfully ui-pdM* of it by ^ale ; hut he
is responsible for the value of it ; and hence
in the casein question, the first partner is
responsible for the v ilue of an half of what
he has sold, as that is a niuie'y of the other's
half
A debt pwvcd against an estate, annuls the
partition of it amonn tha /ICITS. — 1* the estate
of a daccasv?d person be divided amongst the
heirs, and afterwards a debt he proved against
the estate equal to the whole; the partition
must be annulled, because the debt prevents
the estate from being the i roperfy of the
heirs ; — and tru» same rule holds where the
debt is not equal, because the right of the
creditor attaches equally to the whole fortune
of the deceased. The partition must there-
fore be annulled, unless there be left after
it a sum sulficient to discharge the debt, in
576
PARTITION.
[VOL IV
which case it is not annulled, since the annul-
ment of it is not necessary for the discharge
of the debt.
Unless the creditor remit it, or the heirs
discharge it. — IP the creditor, after the par-
tition; remit the debt, or if the heirs discharge
the debt from their own fortunes, the par-
tition remains valid, whether the debt be
equal to the estate or exceed it, the obstacle
to its validity being thus removed.
An heir may prefer a claim upon an estate
after partition.— IF one of the heirs prefer
a claim of debt against the deceased, after
the admissible; of the hereditaments, his claim
is admissible; for in this case there is no
contradiction, since the debt relates tD the
spirit of value, and not to the substance of
the particular hereditaments, and it was in
the substance of the hereditaments that the
partition took place.
A claim cannot be set up, by an heir, to
any particular article, after distribution -
IF a part of the heirs, after partition, prefer
a claim for a particular thing, included in
the estate, on whatever ground the claim be
built, it cannot be admitted, on account of
the contradiction, which is here evident, as
their acquiescence in the partition implies
an acknowledgment in them that par-
ticular thing, which has been divided, was a
part of the co-parcenary.
CHAPTER V.
OF THE LAWS OF MAHAYAT.
Mahayat is a partition of usufruct.—
MAHAYAT, in the language of the LAW,
signifies, the partition of usufruct; and it is
allowed; because it is frequently impossible
for all the partners to enjoy together, and at
one time, the use of thing held in pirt-
nership. Mahayat, therefore, resembles the
partition of property (whence it is that the
Kazee may enforce it in the same manner) —
with this difference, however, that in the
partition of property each partner enjoys th :
use of his respective share at the same time,
whereas in ihc partition of usufruct each
most frequently enjoys the use of the thing
held in partnership onlv when it comes to
his turn, by rotation Partition of property
is therefore more effectual than partition of
usufruct in accomplishing the enjoyment of
the use; for which r*ason, if one partner
apply for a partition of property, and another
for a partition of usufruct, the Kazee must
grant the request of the formet; and if a
partition of usufruct should have' taken place
with respect to a thing capable of a partition
of property such as a house or a piece of
ground), and afterwards one of the partners
apply for a partition of property, the Kazee
must grant a partition of property and annul
the partition of usufruct.
And is not annulled by the decease of the
parties — A PARTITION of usufruct is not
annulled by the death of one of two part-
ners, nor even by the death of both, for if it
were annulled, it must (most probably) be
renewed (since the heirs of the deceased may
lawfully demand a partition of usufruct),
and therefore it would be to no purpose to
annul it.
Partners may nuke it by allotting to each
the usu of a particular part of the joint con-
cern — IF two partnes, by a mutual con-
tract, make a partition of usufruct respecting
a house, to this effect, that one of them shall
inhabit one pait of it and the other another,
— or, that one shall inhabit the upper floor
and the other the under, such contract is
valid; foi as a partition of property executed
in this mannar is lawful, so likewise is a
partition of usufruct. It is proper to re-
mark, that a partition of usufruct, when thus
executed, is in reality a separation, that is, a
division of the whole of the shirks of usufruct
of one partner from those of another partner,
and a concentration ot both into one place:
but the cantract docs not comprehend an
exchange, whence it is that a limitation of
time is not required in it ; — for if it compre-
hended an exchange, a limitation of time
would have been requisite because of its
being (in that case) a lease.
In which case either i\ at liberty to let his
share. — I r is lawful for each partner to let
out on rent that part of which the usufruct
has fallen to him. and he may appropriate to
himself the rent accruing therefrom, whether
it be a condition in rhe agreement of parti-
tion of usufruct or not; for every use which
accrues from that part becomes (in conse-
quence of the partition of usufruct) his pro-
perty and the rent which he receives is
nothing morj thai a comp.ns.il ion given him
in lieu of the use accrum> from it.
Or by stipulating an alternate right to the
use. — IF i wo partners make AM agneiient of
partition of u*ufruet regarding a slave, in
this manner, that the one clay lie shall serve
the one, and the ne\t the other, it .s lawful
(and so likewise if rhey make a similar agree-
ment regarding a small room); f°r partition
of usufruct is sonv times effected by means; of
tune, and sometimes by means of place; and
in the present instance it is effected by means
of the former.
A dfference between the parties must be.
setilml by the interference of the Kazee. — !•<
two partners disagree concerning the t.-rms
of their contract of partition, the one alleging
that it related to time, and the other that it
related to place; tlie Kazee ought to enjoin
them to agree regarding one »>r other of these
metro Is. The reason of this is that the
partition of usufruct with respect to place is
the more equitable, s;ru*e by that means each
partner enj >ys the use at the sa ne time that
the other pirtner enjovs it also; but parti-
tion of usufruct with respect to time (on the
other hand) is the more complete in regar 1
to the use, since each individual then enjoys it
entire. As, therefore, the reasons in favour
of these two methods are different, it is
requisite that the partners agree on one of
then;— and if they choose partition with
BOOK XXXIX.-CHAP. V.]
respect to time, the Razee, to prevent the
imputation of partiality, must draw lots, in
order to determine which of them shall have
the first turn.
Case of partition of the use of two slaves.
— IF two partners (whom we shall suppose
Zeyd and Amroo) make a partition of
usufruct regarding two slaves, to this effect,
that the one shall serve Zeyd, and the other
Amroo, it is valid, according to the two dis-
ciples ; for as (by their doctrine) partition of
property w»th respect to slaves, is lawful,
whether performed by the authority of the
Kasjec, or by the mutual agreement of the
parties, it follows that partition of usufruct,
wiih respect to slaves, is also in the same
manner lawful. Some (by inference from
the doctrine of Hantvfa) maintain that the
Ka?ee must not enforce the partition of
usufruct with respect to slaves (and such is
reported as his opinion by Khasaf) ; because
compulsion being (as we have formerly
shown) disallowed by Haneefa with respect
to partition of property in the ca«-e of slaves,
it evidently follows that the Kazee cannot
enforce a partition of usufruct in a similar
case. The truth is, that if the Kazee enforce
a partition of usufruct in this way, it is
lawful, according to Haneefa, — whereas, if
he were in this way to enforce a partition of
the substance it would be unlawful : because
in the service of slaves there is no great
difference, but in t'.eir persons they differ
considerably
IF a partition of usufruct be made regard-
ing the above two slaves in this m inner, that
the maintenance of the one whom Zeyd takes
for his service shall be defrayed by Zeyd,
and the maintenance of the one whom Amroo
takes shall be defrayed bv Amroo, it is valid,
on a favourable construction. Analogy would
suggest that it is not valid, because the
maintenance of each of the slaves is incum-
bent on both the masters : -but when it is
stipulated that the maintenance of one of
them shall fall solely on one of the masters,
and that of the other on the other master,
it may be called an ex:hange ; and as the
consideration (supposing it an exchange) is
uncertain, it is therefore invalid. The
reason for a more favourable construction
in this particular, is that in feeding slaves
strictness is not particularly regarded. It
were otherwise, however, if each partner
stipulated to clothe his slave, as strictness is
regarded with respect to clothing them
Or , of two houses. — If two partners make
a partition of usufruct regatding two houses ;
in this manner, that the one shall inhabit
the one house, and the other inhabit the
other, it is valid : and the Kazee may enforce
it, according to the two disciples and such
is also the opinion of Haneefa, as mentioned
in the Zahir Rawayet. The reason of this,
with the two disciples, is that as (agreeably
to their tenets) a partition of property, made
in this manner, is valid, so likewise is a
partition of usufruct. Some say that accord-
ing to Haneefa such a partition of usufruct,
PARTITION
577
when made by the mutual agreement of the
parties, is valid ; but that it cannot be
enforced by the Kazee ; for although a par-
tition of property of this nature, by the con-
sent of the parties, be valid, still (agreeably
to his tenets) the Kazee cannot enforce it ;
and the same of a partition of usufruct.
There is another opinion transmitted to us
from Haneefa, that a partition of usufruct in
the manner above mentioned is utterly in-
valid, whether enforced by the Kazee (for
the reasons which have betn stated above),
or made by mutual agreement ; because it
would be a sale of residence in one house for
residence in another, which is not legal, as
has been already shown in treating of HIRE.
It is otherwise with respect to partition of
the substance of two houses ; for the sale of a
part of the one house for a part of the olhrr
is lawful The reasons lor the opinion
quoted from the Zahir Rawayet are, that as
the difference between the usufruct of the
one and of the other is inconsiderable, a
partition of the nature described i« in the
manner of a separation, and is therefore
lawful when made by the muiual agreement
of the parties, and may be enforced by the
Kazee. The difference, on the contrary,
between the substance of the houses may be
very consL erable ; hence a partition of the
substance of them, in the manner described
is (in effect) an exchange, and may accord-
ingly be made by the consent of the parties,
but cannot be enforced by the Kazee.
Or, of two quadrupeds —If a partition of
usufruct be made regarding two quadrupeds,
to this effect, that the one partner shall have
the riding, of the one, and the other the
riding of the other, it is not valid according
to Haneefa. According to the two disciples
it is valid ; since a partition of property
made in this manner is (by their doctrine)
valid ; and partition of usufruct is only a
branch of partition of property. The argu-
ment of Haneefa is, that there is a difference
in the use and riding of one or another
quadruped, because of the difference in
riders, some being expert and knowing in
the art of riding, and others the reverse.
The same difference of opinion also obtains
concerning a partition of usufruct, by rota-
tion, with respect to one quadruped ; — in
opposition to a slave ; for a slave serves
according to his own reason, and will not
suffer a greater burden than he is capable of
bearing, wtereas a quardruped must submit.
Partition of the advantage from a house
may be effectel by each party letting in to
hire alternately. — IF a partition be made
regarding the produce ot a house, to this
effect, that the one partner shall Ut it out to
rent for one or two months, and enjoy the
produce or rent, and that afterwards the
other partner shall let it out in the same
manner, and enjoy the rent, such a partition
is valid, according to the Zihir Rawayet ;
but ja similar agreement regarding a slave
or a quadruped is not valid. The reason of
this distinction is, that in the case of the
578
PARTITION
(VOL. IV
•lave or quadruped the equality of the
several shares, which is a necessary condi-
dition, is lost. — whereas in the case of the
house it is preserved ; for slaves and
quadrupeds are changed and prejudiced by
the lapse of time and severe labour, and it
is probable that their hire will be less the
second than it was the first turn, where as
house may be supposed to continue in the
same state during both turns, and the rent
may be equal.
Any occasional excess in the rent being
divided equally between them —IF it should
happen that the rent of a house is greater
during the turn of one partner than in that
of the other, they are both to participate in
the excess, or difference betwixt the one
rent and the other, so that an exact equality
may be effected between them. It is other-
wise where they make a partition respecting
the use of the house, and it afterwards
yields a greater produce to the one in his
turn than to the other, for as, in this case
an equality has still been preserved in that
which was the subject of partition (namely.
the use), the excess of acquisition, received
in return for the use. is immaterial, since it
frequently happens that there are two things
exactly equal, and yet the return received
for the one is greater than that received for
the other.
In a case of partition of the advantage
from two houses, neither party is accountable
for any excess of rent to the other —A PAR-
TITION concerning the rent of two houses
is likewise lawful, according to the Zahir
Rawayet for the same reasons as have been
assigned in the case of one house. If, how-
ever, one house yield a greater rent than the
other, still the partners do not both share in
the excess. The reason of this distinction is j
that, in the case of two houses, when a par-
tition of their rents is made, separation is
the prevailing principle ; because as each
partner enjoys the rent of his particular I
house, at the same time, it follows that each
obtains the whole of his respective rights.
without leaving any part of them with the
other, — whereas in a partition of the usufruct
of one house, the partners receive the rent
by rotation (that is, the one receives the
rent the one month, and the other receives
it the other), and it may therefore be said
that they successively grant to each other a
loan of their shares of the rent,— -the partner
who holds the second month lending to him
who holds the first month his share, or half
of the rent for the first month, which he is
again to receive out of the rent of the second
month ;— and it may be also said that during
their respective months each acts as agent
for the other in receiving his share ; and
when the other has received his share from
the rent of the second month, if there be an
excess, it is divided betwixt them ; but if,
on the contrary, he be not able to recover
the whole amount of his loan from the rent
of the second month (it being less than the
first), the excess which is on the side of him
who held the first month must be divided
betwixt the partners, so that a perfect
equality may be thus accomplished.
Case of partition of the advantage from
two slaves. — ACCORDING to the two disciples,
a partition with respect to the hire of two
slaves, made in the manner of the preceding
case, is lawful, as well as a partition with
respect to the service and use of two slaves.
Haneefa maintains that it is not valid ;
because the difference to be found in two
slaves is greater thin that which is to be
found in one slave at two separate periods.
As, moreover, a partition with respect to the
gain required from a single slave, by rota-
tion, is invalid, it follows that such a parti-
tion with respect to the eain acquired from
two slaves is invalid a fort'ori Besides, a
partition regarding the service and use of
slaves is admitted from necessity, slaves
being of themselves indivisible ; but there is
no necessity in the case of the hire of slaves,
as that is a thing which is capable of divi-
sion. In the case moreover, of service, it
may not be requisite to consider matters
strictly ;— whereas, in the case of hire (which
is a money transaction) matters must be
considered strictly. Hence there is no
analogy between the cases.
A partition of advantage from two quadru-
peds— A PARTITION of usufruct concerning
the hire of two quadrupeds is invalid,
according to Haneefa, in ojposition to the
two disciples. The arguments used on both
sides are the same as those which have been
set forth in the case of a partition of
usufruct concerning the use of service of a
quadruped
A part'tivn of usufruct cannot be made
with regard to productive articles. — IF two
partners make a partition of usufruct
regarding an orchard of elates, or a garden
containing trees, in this manner, that each
shall take a part and cultivate it, and enjoy
the fruits produced from it,-— or, if they
make a partition of usufruct regarding a
herd of goats, in this manner, that each
shall take a certain number, and feed them,
and enjoy the milk produced by them, neither
of these partitions of usufruct is valid ;
because partition of usufruct regarding use,
as well as partition of usufruct regarding
service, is admitted only from necessity, as
being unsubstantial, and therefore incapable
of division ; but, in the present instances,
the fruit and the milk, when once produced,
are capable of division, being things which
substantially exist, and therefore there is in
these instances no necessity. The device
here is for one of the partners to sell his
share to the other, who may first tnjoy the
fruit and milk, and afterwards, when the
other's turn is expired, his partner may
again purchase the whole, and enjoy the
fruit and milk in his turn. Or, one may
enjoy the produce of the other's share in the
manner of a loan, and ascertain the quantity
thereof, for the loan of indefinite things is
lawful,
BOOK XL.]
COMPACTS OF CULTIVATION
579
BOOK XL.
OF MOZAREA, OR COMPACTS OF CULTIVA- j
TION.
Definition of the term. — MOZAREA, in the
lanugage of the LAW, signifies a compact
betwixt two persons, one being a proprietor
of land, and the other the cultivator, by
which it is agreed that whatever is produced
from the land shall belong to both in such
proportions as may be therein determined.
Difference of opinions concerning compacts
of cultivation — A COMPACT of cultivation is
not valid according to Hancefa. The two
disciples maintain it to be valid ; because it
is related of the Prophet that he entered into
such a compact wilh the people of Kheebir,
by which it was agreed that they should
manage the gardens and lands of Kheebir,
and enjoy one half of the fruits and grain
produced from them, and that they should
give the other half to him. Besides, a com-
pact of cultivation is, in fact, a compact of
partnership in regard to stock and labour,
in this way, that one of the parties being
the proprietor of the ground, and the other
the tiller of it, the product is between them.
— It is therefore valid from its analogy to
a conttact of Mozaribat ; for contracts of
Mozaribat are valid on a principle of con-
veniency ; since, as it often happens that
there are men possessed of property who
have not a capacity for trade or bu-iness,
and again, that there are others endowed
with such a capacity who have no property,
it is therefore convenient that a contract of
Mozaribat be established betwixt them, by
which means the desires of both are accom-
plished ; and as the same reason subsists in
the case of compacts of cultivation, they are
therefore valid as well as compacts of Moza-
ribat. It is otherwise where one man gwes
lo another goats, fowls, or silkworm.-?, to
take care of, on condition that he who thus
takes care of them shall have one half of
the produce and the proprietor the other
half ; for this is disapproved ; because as
the care and mangement of the keeper has
no effect in creating the produce, patner-
ship is therefore not sufficiently established
in that instance. The arguments of Haneefa
on this point are threefold. FIRST, the
Prophet has expressly prohibited Mokha-
bera, which in the dialect of Medina has
the same signification as Mozarea, namaly,
compacts of cultivation. — SECONDLY, to
make a compact of cultivation is to hire a
labourer for a part of that thing which is
produced by his labour ; it is therefore, in
effect, a Ka fee z Teham, and as that is un-
lawful, so likewise is this. — (Tehan signifies
a miller or grinder of wheat, and Kafeez
a cup used for measuring ; Kafeez Tehan,
therefore, means to hire a person to grind
wheat into flour, in consideration of a mea-
sure of the flour for his hire) — THIRDLY,
the rate of hire, in such cases, is uncertain,
any produce is reaped ; or it is anni-
hilated when no produce is reaped ; and in
either case the hire if invalid. With respect,
moreover, to the transaction which passed
betwixt the Prophet and the people of Khee-
bir, it was not a compact of cultivation, but
was rather in the nature of a tributary re-
venue, allowed to be paid in kind, as an
indulgence or compromise. As compacts of
cultivation are thus <'e med invalid by
Haneefa, it follows that (agreeably to his
doctrine), where the labourer waters, tills,
and sows the land, and it nevertheless proves
unproductive, he is entitled tp the customary
rate of hire adequate to his labour, since
(according to Haneefd) the compact of cul-
tivation is, in effect, as an invalid hire.
This is where the seed sown is furnished by
the proprietor of the ground ; for if the seed
be furnished by the cultivator, he is liable
for the rent of the land at the customary
rate : — and if, in either case, any produce be
reaped, it belongs to him who supplied the
seed, since it is an increase from his pro-
perty ; — and the other, if he be the cultiva-
tor, is entitled to a rate of hire adequate to
his labour, — or, if he be the proprietor of
the ground, to an adequate rent for his
ground. In the present times however,
the adjudication of the courts is given ac-
cording to the doctrine of the two disciples,
both because compacts of cultivation are
convenient to mankind, and also because
they have become everywhere customary.
They require that the ground be capable of
cultivation. — The following conditions are
pssential to the validity of a compact of cul-
tivation I. That the ground be capable of
cultivation, for otherwise the object of the
compact cannot be accomplished.
That the parties be duly qualified. — II.
THAT the proprietor of the ground and the
manager be both qualified to make such a
compact ; that is to say, that they be both in
their right reason, of ace and conversant in
such compacts ; for unless the parties be so
qualified no compact whatever is valid.
That the term of their continuance be ex-
pressed.—IU THAT the period or term be
expressed ; for such a compact is in the na-
ture of an agreement, either for the use of
the ground (as when the cultivator supplies
the seed), or, for the use of the labour (as
when the seed is supplied by the proprietor
of the ground), and the determinate use of
either can be ascertained only by the period.
That the party be specified who is to supply
the seed.— IV. THAT it be expressly stipu-
lated by whom the seed is to be supplied, in
order that the grounds of the compact may
be known ; — in other words, in order that it
may be known whether it is founded on the
use of the labour, or on the use of the land,
and that no source of dispute may remain.
That the share of the other party be ex-
presstd.—V. THAT the particular share
which is to fall to him who does not supply
the seeds be expressed ; for in consequence of
the agreement he is entitled to a share ; and
it is requisite that the propoition be deter-
580
COMPACTS OF CULTIVATION
mined, because a thing which is unknown
cannot be established by the compact, not
withstanding a share be in general terms
stipulated.
That the land be delivered up to the culti-
vator — VI. THAT the proprietor of the land
deliver up the land to the cultivator, in order
to the cultivation of it, and that he himself
abstain from any mangement or enjoyment
of it ; insomuch that if it be stipulated in
the compact of cultivation that he also shall
manage, the compact is null, because of the
invalidity of such stipulation.
That both parties participate in the produce.
— VII. THAT both parties participate in the
produce of the ground after it is reaped ; for a
compact of cultivation is ultimately a compact
of partnership ; wherefore every stipulation
repugnat to partnership invalidates the
compact. (For example, if a precise quan-
tity of the produce be stipulated for one of
the parties, it is invalid ; since, as it is un-
certain whether so much will be produced,
the partnership is therefore defeated)
And that the particular seeds be mentioned.
— VII. THAT the particular species of seed,
such as wheat, barley, &c., be expressed, in
order that the species in which the hire of
the labourer is to be paid may be known.
Of compacts of cultivation four descriptions
are valid. — COMPACTS of cultivation (accord-
ing to the two disciples) are of four different
kinds :— I. Where the ground and the seed
are supplied by the one, and the cattle and
the labour by the other :— and this is lawful
for the cattle are considered as implements
of labour, and the case is therefore similar
to that of a man hiring a tailor to sew his
robe with his (the tailor's) own needle. II
Where the ground alone is supplied by one
of the parties, and the labour, seed, and
cattle by the other :*— and this a'so is lawful
for in this case the labourer has hired the
ground for a known proportion of its produce,
and it is therefore lawful, in the same man
per as if he had hired or rented it for a
certain number of dirms. Ill Where the
ground, the seed and the cattle, are sup-
plied by the one, and the labour alone by the
other : — and this likewise is lawful ; for in
this case the proprietor of the ground hires a
labourer to work with implements belonging
to him (the hirer) ; and it is consequently
analogous to the case of a man hiring a tailor
to sew his robe with his (the hirer's) needle,
—-or, to that of a man hiring a labourer to
dig with his (the hirer's) hoe IV. Where
the ground and cattle are supplied by one of
the parties, and the seed and labour by the
other. — This is not va'id, according to the
Zahir Rawayat : — but it is reported from
Aboo /oosaf that this also is valid ; for as, if
it were agreed that both the cattle and the
seeds should be supplied by the proprietor of
the land, it would be valid, it is in the same
manner valid where he supplies the cattle
only ; being, in fact, the same as where the
cattle are furnished by the cultivator. The
reason on which the opinion in the Zahir
[VOL. IV.
Rawayet is grounded are, that the use of
cattle is different , in its nature from the use
of ground ; for the use of ground arises from
a strength in the soil which occasions vege-
tation, whereas the use of cattle cons;sts in
their fitness for labour ; these two things,
therefore, not being of the same species, the
use of the cattle cannot be a dependent on
the use of the ground. It is otherwise where
the cattle are supplied by the cultivator ; for
the use of cattle and the use of a cultivator
or labourer are of the same species, the pro-
duct being equally derived from the work of
both.
And two a^e invalid. — (T is here proper to
remark, that besides the four species of com-
pacts of cultivation above enumerated, there
are two more, which are, however, invalid
I. Where it is stipulated that the seed shall
be supplied by one of the parties, and the
ground, the labour, and the cattle, by the
other ; which is invalid, because the sixth
condition before mentioned is not found in
it. II. Where it is stipulated that the seed
and cattle shall be furnished by one of the
parties, and the ground and labour by the
other, which is likewise invalid, for the same
reason. In both these cases the produce of
the lands (according to the one opinion*), be-
longs to him who supplied the seed, upon th<*
same principle that it belongs to him in any
other cases of compacts of cultivation which
are invalid. But according to the other
opinion,! the produce belongs to the pro-
prietor of the land he therefore stands
(as it were) as merely a borrower of the seed
of which he has obtaine i possession by its
being sown in his ground.
T/ir period of their duration must be known
and the produce must be participated between
the parties, in definite proportions. — COM-
PACTS of cultivation are not valid unless the
period of their duration be known ; —nor un-
less the produce of the land be indefinitely
participated between the parties (such as in
a third, a fourth, &c.) in order that partner-
ship may be established betwixt them. If,
therefore, it be stipulated that either of them
in particular shall receive a certain number
of measures of grain from the produce of the
ground the compact is null as in this case
partnership is defeated (in other words, is
not established; since it is possible that no
more may be produced from the ground than
what is thus stipulated to one of the parties
— and the case is therefore similar to that of
two men concluding a contract of Mozaribat,
in which it is stipulated that one of them
shall receive a certain number of dirms.
IN the same manner also, compacts of
cu'tivation are invalid where it is stipulated
that he who supplies the seed shall receive
an equal quantity of grain from the produce
of the ground, and that the rest shall be
divided betwixt the parties ; — for, in case the
•The opinion of Haneefa, as before stated.
•fThe opinion of the two disciples*
BOOK XL.]
COMPACTS OF CULTIVATION
produce exceed the quantity of seed, a stipu-
lation of this nature defeats the partnership
with respect to that particular quantity ;
or with respect to the whole, in case the
produce should not exceed the quantity of
the seed. A stipulation of this nature, more
over, is similar to where the patirs agree,
regarding tribute-land, that the rest of the
produce shall be divided after deducting
tribute. It is otherwise where two men
agree 'hat one tenth of the produce shall go
to one of the parties, and that the remainder
shall be divided betwixt both ; for a stipula-
ti n of this nature does not defeat partner-
ship, because the remaining nine- tenths still
continue participated between the parties ;
whence this is similar to a stipulation, re-
garding tithe-lands, that "after deducting
the tithe, the remainder shall be divided be-
twixt the parties "
IN the same manner also, a compact of
cultivation is invalid if it stipulate that
whatever is produced on a particular spot
(such as on the banks of a rivulet), shall
belong to one of the parties, and that the
remainder of the produce of the whole ground
shall be divided betwixt both; for such a
stipulation defeats partneiship, since it is
possible that nothing may be produced ex-
cept upon that particular spot : — and it is in
like manner invalid where it is stipulated
that the produce of one spot of ground shall
go to one of the parties, and the produce of
another spot to the other
IN tru same manner also, a compact of
cultivation is invalid where it is stipulated
that the one shall get the straw, and the
other the grain ; for it is possible that
nothing may be produced but straw : and it
is equally invalid if it be stipulated that the
straw shall become their joint property, and
that the grain shall belong to one of them
only ; for here a partnership is not estab-
lished with respect to the grain, which is the
particular object of cultivation.
If the grain alone be mentioned, the straw
goes to him who supplies the seed. — IF it be
stipulated, in the compact of cultivation,
that the grain shall be divided equally
betwixt the parties, and no mention be
made of the alraw, still the compact is valid,
because a partnership is stipulated in that
thing which is the chief object of cultiva-
tion ; and in this case the straw will belong
to him who supplied the seeds, as of that
the straw is the produce. (The Shiekhs of
Baikh* are of opinion that the straw should
also be divided equally betwixt the parties ;
because such is the usual practice when no
mention is made of the straw ; and also
because as the straw is subordinate to the
grain it should, as well as the grain, be held
in partnership.)
And it may be stipuluted to go to him. —
IF it be stipulated that the grain shall be
*Balkh is a city in Turan.
581
divided equally, and that the straw shall go
to him who supplied the seed, it is valid ;
because this is consistent with the spirit of
compacts of cultivation.
But it cannot he stipulated to go to the
other — IF, on the contrary, it be stipulated
that rhe straw shall go to him who did not
supply the seed, it is invalid, as such a stipu-
lation defeats the partnership in case nothing
but straw should be produced. The diffe-
rence betwixt these two cases is, that the
person who did not supply the seed has no
other claim to the straw than what he
acquires from the stipulation, whereas he
who supplied the seed has a right to the
straw in consequence of its being the pro-
duce of his seed ; and whether the straw be
stipulated to him or not his right to it holds
equally good.
The produce is participated according to
(Agreement : and if nothing he produced, the
cultivator has no claim — WHEN a compact
of cultivation is valid, the produce of the
ground is the joint property of the parties,
in such proportions as they may have stipu-
lated, such as an half, a third, or the like. —
If, on the contrary, nothing be produced, the
cuUivator is not entitled to any thing ; for
he has a right only to a share of what may
be pro luced. It is otherwise where the com-
pact of cultivation is invalid ; for in that case
an Adequate hire falls due upon the person
[of one of the parties], not upon the pro-
duce ; and the person is not absolved by a
failure of produce.
Where the compact proves invalidt the
produce goes to him who furnishes the seed :
and the other party. — WHEN a compact of
cultivation proves invalid, the crop belongs
to him who furnished the seed, it being the
produce of his property. Besides, the other
has no right therein except what he acquires
in virtue of express conditions in the com-
pact ; and where that proves invalid, it
follows of course that the entire crop belongs
to the person who supplied the seed.
I/' he he thecultivat »r ; gets wages (not ex-
ceeding his right undtr the compact) — IF the
seed be supplied by the proprietor of the
ground, the cultivator is entitled to a suit-
able hire for his labour, provided it do not
exceed what he would have received in con-
sequence of the conditions of the compact ;
because, in subscribing to these conditions,
he consented to relinquish his right to the
excess. This is the law, as laid down by the
two elders. Mohammed maintains that he
is entitled to a suitable hire, to whatever
amount ; for as the master of the land has
obtained his services in consequence of an
invalid compact, he is of course liable for the
value thereof, service not being of the calss
of similars ;— as has been fully explained in
treating of Hire.
Or, if the proprietor of the ground , an
adequate rent — IF the seed be supplied by
the cultivator, the proprietor of the ground
is to receive a suitable rent for his ground,
whether there be any produce or not. P-i:
582
COMPACTS OF CULTIVATION
[VOL IV.
reason of this is, that as the cultivator has
acquired the use of the ground in conse-
quence of an invalid compact, he ought, there-
fore to restore the use itself ; but that being
impossible, and there being no similar in
which he might make a return, it is there-
fore incumbent that he make a return in the
value to an amount not exceeding what the
other would have received in virtue of the
stipulations of the compact. This is the
doctrine of the two elders Mohammed is
of opinion that he must pay an equivalent,
whatever it may be
And also an adequate hire for the cattle,
if supplied by him. — IF the cattle be pro-
vided by the proprietor of the ground, so as
that the compact (according to the Zahir
Rawayet), becomes invalid, the cultivator is
in that case liable for a suitable hire on
account both of the cattle and the ground : —
and this is certainly just ; since the cattle
are equally included in the contract of hire
(the compact of cultivation being, in fact, a
contract of hire in this instance) ; and the
use of the cattle and the use of the ground
are uses of different kinds
// it be the proprietor who thus gets the
produce, he may keep the whole ; but if the
cultivator, he must bestow the surplus in
charity. — WHERE the proprietor of the
ground, in consequence of having supplied
the seed, is entitled to the produce, he may
lawfully on the compact proving invalid,
enjoy the whole, since it was yielded from
ground which was his own property. If, on
the contrary, the cultivator, in consequence
of having supplied the seed, be entitled to
the produce he is to reserve for his own use
a quantity equal to the seed he supplied, and
also a quantity equivalent to the rent he is
to pay to the proprietor of the ground, —and
the rest of the produce he must aoply to
charitable purposes ; because the produce
springs from the seed, but grows out of the
ground, whence his right to the use of the
ground is invalid ; and as invalidity in re-
gard to the use occasions a baseness in regard
to the product, it follows that what remains
with him as a return is lawful to him, and
that every thing else must be bestowed in
alms.
The party who agrees to supply the seed is
at liberty to retract previous to the sowing. —
WHERE two men enter into a compact of
cultivation, and he who was to supply the
seed afterwards retracts, previous to the
sowing, the Kazee must not compel him to
abide by the compact, because he cannot
abide by it without sustaining an immediate
loss from the sowing of his seed, and the case
is therefore similar to where a man hires
another to break down his house, in which
instance, if the hirer were to retract, the
Kazee could not compel him to abide by his
agreement. If, on the contrary, the party
retract who was not to supply the seed, the
Kazee may compel him to fulfil the compact ;
for in so doing he does not sustain any loss ;
and compacts of cultivation, like compacts of
hire, are binding, unless when some plea can
be alleged sufficient to dissolve compacts of
hire, in which case a compact of cultivation
is also dissolved.
And if the proprietor of the ground thus
retract, the cultivator is not enttitled to any-
thing.— IF the proprietor of the ground,
being to furnish the seed, should retract,
after the cultivator has tilled the ground,
the cultivator is not entitled to receive any-
thing for the work he has performed. Some,
however, are of opinion, that although ; in
point of law, there be no compensation due
to the cultivator, still, in point of conscience,
it is incumbent on the proprietor of the
ground to satisfy the cultivator fcr the work
he has performed, as he has been deceived in
this instance.
The compact is annul ed on the decease of
either party. — WHEN one of the parties dies,
the compact of cultivation, like compacts of
hire, becomes dissolved. (The reason of this
is fully set forth in treating of Hire.)
// the proprietor of the ground die, when
the crop has appeared, the compact is dissolved
at the end of that year. — IF a man give up a
piece of ground to another for a term of three
years, and afterwards, when the first year's
crop has begun to grow, but is still unfit for
reaping, the man die, the ground, in this
case, remains in the hands of the cultivator
until the crop be fit for reaping, and the
produce is then divided according to the
conditions of the compact ; — and the compact
is dissolved with respect to the remaining
two years of the term ; because analogy
would suggest that it discontinues even for
the first year, as the duration of a compact
depends on the duration of the parties ; but
it is continued throughout the first year, in
order to the preservation of the rights of
both parties (that is, the cultivator and the
heirs of the proprietor), since, if it were to
discontinue, the cultivator would sustain an
injury. It is otherwise in regard to the
second and third years, because in the dis-
continuance of the compact for those years
no injury is sustained by the cultivator ; and
accordingly the compact is dissolved for these
years, agreeable to analogy.
But if he die before thatt it is dissolved
immediately. — IF the proprietor of the ground
die after the cultivator has ploughed the
land, and dug rivulets for watering it, but
previous to the crop app *aring, the compact
is dissolved, since in such case the dissolution
of it is not injurious to the cult;vator's pro-
perty. (It is otherwise where the proprietor
of the ground dies after the crop has begun
to grow, and appears like grass ; for in that
case the compact is not dissolved, as the
cultivator would then be injured in his pro-
perty by the dissolution of it). In this casj
the cultivator is not entitled to any thing for
his labour ; because the use of a perse n's
service cannot be appreciated but by a
compact ; and when the compact becomes
null, the estimation of the service no longer
remains,
BOOK XL.]
COMPACTS OF CULTIVATION.
583
The proprietor of the ground may dissolve
the compacts with a view to sell the ground
for the discharge of his debts. — IT is lawful
for the proprietor of the ground to dissolve
the compact, in case he have occasion to sell
the around to discharge considerable debts
which he may have incurred, for this is a
pretext, which he may avail himself of, in
the same manner as in Hire : * — and in this
ease the cultivator has no ri^ht to claim from
him any expense which may have attended
the tilling of the land, or the digging of
drains ; because service is not appreciable
but in consequence of a compact ; and as
the price set on the service, in the present
instance, was upon the supposition of a
produce, it follows that upon the produce
being prevented the cultivator is riot enti-
tled to any thing
But if the crop be growing, the sale must
be delayed until it be ready for cutting. — IF,
however, the crop have begun to grow,
although it be still unfit for reaping, the
land must not be sold for the payment of
the proprietor's debts until the grain be
ready to cut down ; because if the lands
were to be sold, und^r such a circumstance,
the sale would be injurious to the right of
the cultivator ; whereas, by waiting until
the crop is ready, it only occasions a small
delay in the payment of the proprietor's
debts, which is the lighter evil of the two.
The Kazee must also, in this case, enlarge
the proprietor, if he have been imprisoned
on account of his debts, for it being un
lawful immediately to sell the lands, the
proprietor, in delaying to pay his debts, is
guilty of no injustice, and imprisonment is
intended as a retribution for injustice
Rules in case of the compact expiring
before the crop is ready to cut — IF the term
of the compact cf cultivation should expire
before the crop be ready for cutting, the
cultivator must pay to the proprietor of the
land a hire or rent for his [the cultivator's]
proportion of the ground until the crop be
ripe ; and in the mean time any work which
it may require must be performed by both
parties according to their respective propor-
tions The reason of this is, that in thus
prolonging the compact, and ordaining the
payment of a rent, a regard is paid to the
benefit and interest of both parties, where-
fore it is necessary that it should be pro-
longed : — and it is also necessary that both
should bear their proportions of the worker
expenses ; because the compact which they
entered into is expired, and the crop remains
their joint property, and in cases of joint
property the work is incumbent on both
parties, in the same manner as the subsis-
tence of a partnership slave. (It is other-
wise where the proprietor of the land dies
whilst the crop is yet green ; for in that case
it is incumbent on the cultivator to perform
the whole of the work that may be required ;
* See Vol, HI. p. 510.
because in such an event the compact is
continued during the remainder of its term :
and it [the compact] obliges the cultivator
to sustain the whole burden of the work ; —
whereas, in case of the term cf the compact
expiring, it is no longer binding, and there-
fore the cultivator alone is not obliged to
perform the work.) If, therefore, either
party incur any expense after the expiration
of the term, without consulting the other, or
without an order from the Kazee, he must
bear it himself as he had no right of him-
self to subject the other to any charge.
If, in the exemple above recited ; the pro-
prietor of the land should be desirous of
taking the crop (which is still green) after
the expiration of the term of the compact,
yet he must not be allowed to do so, because
it would be an injury to the cultivator If,
on the contrary, under the same circum-
stance, the cultivator be desirous of taking
the green crop, the proprietor of the land
has three things in his option ; for he may
either pull up the crop and divide it; or he
may keep it altogether and make an allow-
ance to the cultivator, equivalent to his
share of it ; or he may take care of the crop
until it be fit for reaping, in which case he
may deduct from the share of the cultivator
the amount of the expense, incurred on that
account ; — because if the cultivator should
choose to desist from labouring, on the expi-
ration of the teimofthe compact, he cannot
be compelled, since it is prolonged with a
view to his benefit, which he himself has
forsaken ; and no injury is occasioned to the
proprietor of the ground, as he has three
modes in his option, by either of which
injury is prevented
// the cultivator die, his hc'rs m iv con-
tinue the cultivation, but are not entitled to
wages. — IF the cultivator should die after
the crop has begun to grow, and his heirs
should offer to continue the cultivation until
it be fit for reaping, and the proprietor of
the land should not consent, in this case
they are nevertheless authorized to continue
the cultivation, as the proprietor will sustain
no injury thereby ; but they are not entitled
to any hire or wages, as the compact is
continued with a vie\v to their benefit. If
on the contrary, the heirs should desire to
pull up the crop, and not to continue to
cultivate, they cannot be compelled to con-
tinue to cultivate, for the reason above
assigned ; but the proprietor of the ground
has in his option the three modes already
recited.
The incidental charges are sustained by
the parties in proportion to their respective
shares — THE expense of cutting down the
crop, of carrying it to the stack of thrash-
ing it, and of cleaning the grain from the
straw, falls upon both the parties in propor-
tion to their several shares. If, therefore,
they were to stipulate in the compact that
the expenses shall fall on only one of them,
the compact would be invalid. In short, all
the above mentioned charges must be sus-
584
COMPACTS OF GARDENING.
[VoL, IV.
tained by both parties in proportion to their
several shares, and not by any one of them
in particular ; because, when the crop is
ready, the object of the compact being ac-
complished, the compact itself is at an end ;
and as the crop remains the joint property of
the parties, and no compact or stipulation is
left in force betwixt them, it follows that
any expenses which may be afterwards re-
quired on account of their joint property
ought to fail upon both. Besides, if they
stipulate that those expenses shall fall on
one of them only, such a stipulation is in-
consistent with the true spirit of the com-
pact, as it tends to the advantage of onp
party over the other; and all stipulations
having such a tendency invalidate the com-
pact itself, in the same manner as a stipula-
tion by which the cultivator is bound to
carry the grain, or to grind it into flour
Aboo Yoosaf is, however, of opinion that
where the parties agree that the operations
above-mentioned shall fall upon the culti-
vator, it is lawful, because of custom The
sages of Balkh concur in this opinion ; and
the Shims-al-Ayma observes, that this doc-
trine is authentic, and that the practice pre-
vails in his country.
General rules in compacts of cultivation.
— IN fine, every operation of agriculture,
previous to the maturity of the crop (such
as watering and watching it), falls upon the
cultivator ; and every subsequent operation
requisite until the partition (such as reap-
ing, £ c.) falls equally upon both ; and
lastly, every operation that is necessary
after the partition (such as carrying watch-
ing, &c,) falls upon each of them severally,
for their respective shares.
And of gardening. — THE foregoing rule
holds good, also, in cases of Mosakat, or
compacts of gardening ; that is to say, all
operations previous to the maturity of the
fruit, such as watering, grafting, and watch-
ing the trees, fall upon the gardener ; and
all subsequent operations, such as gathering
the fruit, and watching it, previous to a
partition, fall upon both. If, therefore, it
be settled betwixt the parties that the
trouble of gathering the fruits shall fall
upon the gardener, it is disapproved, accord-
ing to all our doctors, as being uncustomary ;
— and all operations, after partition, must
be performed by each with respect to his
own share.
IF, in compacts of cultivation, the parties
be desirous of cutting down the crop whilst
it is young, — or, in compacts of gardening,
of pulling the dates whilst they are sour or
moist, the labour of these operations falls
upon both, for the intention and desire of
performing them terminates the compact, in
the same manner as if the crop or dates had
arrived at maturity.
BOOK XLI.
OF MUSAKAT, OF COMPACTS, OF
GARDENING.*
Nature of a compact of gardening. —
MOSAKAT, in the language of the law,
signifies, a conttact entered into by two
men, by which it is agreed that the one
shall deliver over to the other his fruit-
trees, on condition that the other shall take
care of them, and that whatever is pro-
duced shall belong to them both, in the
proportions of one half, one third, or the
like; as may be stipulated Hanrefa alleges,
that a compact of gardening, stipulating an
indefinite proportion of the produce, such
as an hilf, or a third, is invalid. The two
disciples, on tlu* contrary, maintain that it
is valid, provided a term or period be ex-
pressed ; and this is approved. It is to be
observed, that compacts of gardening are
frequently termed Mamilat as well as Mosa-
kat ; and the same laws hold with respect
to them as those which have been laid down
with respect to compacts of cultivation.
Doctrine of Shafei upon this subject. —
(SHAFEI is of opinion that compacts of gar-
dening are valid ; and that compacts of cul-
tivation are only so, where they happen in
subordination to the former ; as, for example,
where the fruit trees grow in fertile and
clean ground, which is watered for the nou-
rishment of the trte^, and the proprietor of
them directs the cultivator to sow a crop on
the ground on condition that he shall get a
share, such as one half of the produce. The
reason he assigns is, that the original thing,
in this point, is, a contract of Mozaribat ;
and to that a comractof gardening bears a
nearer resemblance than a compact of culti-
vation ; for as, in compacts of gardening, the
partnership subsists in the produce, and not
in the principal thing (namely, the trees), so
in contracts of Mozaribat the partnership
subsists in the produce or profit, and not in
the principal or stock ; — whereas, in com-
pacts of cultivation, if it be agreed that a
partnership shall exist in the produce, and
not in the principal (namely, the seed;— in
other words, if the parties agree that the
one who furnished the seed shall receive an
equal quantity of seeds from the crop, and
that the remainder shall belong to tbem
both, the compact is invalid —As, therefore,
compacts of gardening bear a nearer resem-
blance to Mozaribat than compacts of culti-
vation, it fallows that they are the primary
object, and that compacts of cultivation are
lawful only as a dependant ; like a right of
drawing water, which cannot be sold sepa-
rately, but is included, subordinately, in the
sale of the land ; or like a moveable article
* Applying, more particulaily, to the
plantation and culture of date and other
fruitirees.
BOOK XLI.]
COMPACTS OF
585
(such as the furniture of a house), which
cannot be separately appropriated in Wakf,
but is included in the appropriation of the
house or ground on which it stands.*)
Analogy requires the specfication of a
term ; but it is not essential — THE specifica-
tion of a term is requisite in compacts of
gardening, by analogy, in the same man-
ner as in compacts of cultivation, the one
being, in reality, a contract of hire, the
same as the other. According to a more
favourable* construction, however compacts
of gardening are lawful without any specii-
cation of a term. Thus, if two men enter
into a compact, by which it is agreed that
the one shall deliver his date trees to the
other, who shall water and nourish them
until thi»y produce fruit, and it become ripe,
and no particular period (such aji a year ; or
the like) be specified, the compact is never-
theless, valid, and continues in force with
respect to iho first fruit that may be pro-
duced ; for the season for producing and
riperming fruit is known, and seldom differs
much In the same manner aho, if two
men enter into a compact, and agree that
the one shall delivei to the other the roots of
shrubs, which are in the ground, t and that
to other shall water and nourish them
until they yield ripe seed, to bs shared be-
tween them without mentioning any term,
the compact is nsverthless v«ilidr and takes
place with respect tu the first seed that
shall be produ-cd and arrive ar maturity
because as seed is of the same nature
as fruit, the period of its maturity being
equally known, it is therefore, needless to
settle any limited tinru* It is other wi-e
with regard to compacts of cultivation, which
are invahd unless a period be settled; be-
cause the time of commencing the cultiva-
tion differs greatly, some crops being sown
during the autumn, some during the winter,
and others during the spring ; and as there
is thus a difference in the time of beginning
the cultivation, the period of itt, ending can
not be known* for the ending depends on the
beginning.
Except where the trees are newly planted.
— I r is also otherwise in »-ase of gaidening,
where one man delivers to another his young
trees newly planted, for in that case the
compact is not valid unless a period be fixed,
it being very uncertain when the trees may
arrive at that stage in which they are
capable of bearing fruit, as that is a circum-
stance which depends on the strength and
fertility of the soil.
Or, where the compact is declared to be fot j
^ __ . _ . i
* It would appear that this opinion of j
Shafei is introduced merely for the purpose
of elucidation, as it ia not opposed to any ,
different opinions, and his doctrines are
seldom adduced in practice by the followers |
of Alee. i
t Meaning such vegetables as renovate !
from the root every season.
as loig trees, &c.t shall fast,— IT is
also otherwise, where a man delivers to ano-
ther his date garden, hi* herb roots,
desiring him to water and nourish them
always until they die, or until their roots
be pulled, and their vegetation be thereby
terminated, — or where he sets no bounds
whatever to the duration of the compact
with respect to the herbs ; for in this case
the compact is invalid, its period, being un-
certain, because herbs grow a* Jong as their
roots are suffered to remain in the ground.
The specification of too short a term inva-
lidates the compact.— lr the parties, in a
compact of gardening, settle a period during
which it is certain that the trees cannot bear
fruit, it is invalid ; because the object of
such compact, uhich is a partnership in
the produce, is thus defeated
But not where it is possible that the end of
it may be answered within that period. —
If the parties settle a period during which
the trees may bear fruit, although they be
frequently later in bearing, it is valid, be-
cause the object of the compact is not to a
certainty defeated in this instance. If.
therefore, the trees bear fruit within the
prescribed term, it belongs to them both in
the pioportions which they may have pre-
viously settled ; or, if they should not vield
fruit until after it is cApir<>d, the gardener
is entitled tr> a -\iitable hire for his labour
because the compact has in this case been
rendered abortive by the error of the parties,
in fixing a period too short for the trees to
yield fruit, and which invalidates the com-
pact in the same minner as if it had been
known to be too short at the beginning. It
is otherwise, however, if the trees after-
wards yield no fruit ; for in that case it is
supposed owing to a blight, and not to the
shortness of the period, that the compact
proves abortive ; the compact therefore holds
good, and neither of the parties is entitled
to receive ai:y thing from the other.
The Compact i* valid, withretpect to fruit
trees, vines, herbs, and roots — COMPACTS of
gardening are lawful with respect to date-
trees, vines £c., and also with respect to
herbs and roots. According to the first
opinion of Shafei, they are lawful with
respect to date-trees and vines only ; be-
cau^e the validity of such compacts is
founded on the sentence of the Prophet re-
garding Kheebir, which is confined solely to
these two. Tne argument of our doctors is,
that the validity of such compacts is founded
on their utility, and consequently is esta-
blished regarding other things as well as
date** and vines ;— and in answer to Shafei,
it is observed, that the sentence of the
KORAN regarding Kheebir does not admit of
£o confined a construction ; for the inhabit-
ants of that country Cultivated all kinds of
trees and herbs.
The compact cunnut be dissolved by either
party, but under some plea or pretext.— TH*
proprietor of the orchard cannot dissolve the
compact unless he have some plea for so
586
CCMPACT OF GARDENING
doing, such as when the claims <~f his cre-
ditors oblige him to sell it In** the same
manner also, the gardener cannot cease to
work, and thereby dissolve the compact
unless h« adduce some plea, such as sick-
ness. It is otherwise in compacts of cultiva-
tion ; for (as has been already observed) in
those instances the party who supplies the
seed is at liberty to dissolve the compact at
any time previous to the sowing.
A compact may be entered into whilst the
fruit is green : but not after it is ripe. —
IF two men enter into a compact of garden-
ing, to the effect, that the one shall deliver
over to the other his date orchard, at a time
when the fruit has already appeared, but is,
still very small, and may, by watering and
proper care, become full and lai^e, it is
valid ; — whereas, if the fruit were arrived
at perfection, and were incapable of being
further improved by care, it would be in-
valid, In the same manner also, if two men
enter into a compact of cultivation, by
which it is agreed, that the one shall deliver
over to the other his crop, being yet green,
and unfit for reaping, the compact is valid ;
whereas if the crop be fit for reaping it is
invalid. The reason of thia is, that the
labourer is entitled to a share of the pro-
duce on account of his labour ; but if the
compact were to hold good when his labour
can have no effect, he would be entitled to
a share without labour, and this is not
admitted in this Law.
If the compact be invalid, the gardener gets
[VOL. IV.
the gardener die, his heirs may continue to
work, although tbe proprietor should not
consent thereto, because it tends to their
mutual benefit. If, on the contrary, the
heirs of the gardener decline working, and
rather choose to gather the fruit whilst it is
still green, the proprietor of the orchard has
the three things in his option, as mentioned
above.
Rule in case of both parties dying. — IF
both the parties die, the heirs of the gardener
may continue to work ; for as, if the gardener
had lived, and the proprietor of the orchard
had died, he [the gardener] might have con-
tinued to work, it follows that his heirs, as
being his substitutes, have the same thing in
their option. If, however, they should de-
cline it, the heiis of the proprietor are in that
case at liberty to pursue either of the three
ways above mentioned
Rule in case of the compact expiring
whilst the fruit is yet green. — IF the term of
the compart should expire whilst the fruit is
still green and unripe ; the gardener may
continue in his employment until it become
ripe ; and in this case he is not liable for any
rent on account of the tiees, the letting of
trees being unlawful. It is otherwise with
respect to compacts of cultivation ; for if
their term expire whilst the crop is yet green,
the cultivator may continue to work until it
be fit for reaping. — but he is liable for the
rent of the ground, the letting of ground
being lawful.
IF the term of a compact of gardening
wages. — WHEN compacts of gardening are i expire at a time when the fruit is still green;
invalid, the gardener is entitled to suitable ' the gardener alone is obliged to perform the
wages, as an invalid compact of gardening | rest of the work ; whereas, on the contrary,
is equivalent to an invalid contract of hire, j if the term of a compact of cultivations expire
and therefore resembles an invalid compact j at a time when the crop is still green, both
of cultivation. j parties are obliged to work until the crop be
The compact is annulled by the decease of brought to maturity. — The reason of this
either party. — Rules incase of the proprietor distinction is that, in compacts of cultivation,
dying. — IF, in a compact of gardening, one the cultivator being liable for the rent of the
of the parties should die, the compact be- i ground after the expiration of the term of
comes null, because it is in reality
a contract
of hire.— If the owner of the orchard die
whilst the fruit is yet green, the gardener
may continue to work as usual until it be
ripe, notwithstanding the dissent of the heir*.
— (This proceeds upon a favourable construc-
tion : for by continuing the compact, the
gardener is prevented from suffering an in-
jury, and none is occasioned to the heirs.) —
But if the gardener should rather choose to
submit to the injury, the heirs have in that
case three things at their option ; — in other
words, they may either divide the green
fruit, agreeably to the proportion stipulated,
— or, they may keep the whole of the green
fruit, and pay to the gardener the value of
his proportion,— or, lastly, they may take
care of the fruit until it be ripe, and expend
such sums as may be necessary for that pur-
pose, and afterwards recover a proportionable
part of the expense from the share of the
gardener — for the gardener is not at liberty
to occasion an injury to the hein.
Rules in case of the gardener dying. — IP
the compact, it would be unjust that ho
alone should afterwards perform the labour ;
whereas, in cases of compacts of gardening,
the gardener, as not being liable for any rent
is obliged to perform the work alone, after
the expiration of the term, in the same
manner as before.
The compact may be dissolved by any plea
or pretext —COMPACTS of gardening may be
dissolved by particular pleas, — such as where
the gardener is a thief, and there is reason to
be apprehensive of his stealing the branches
or leaves of the date trees, or the fruit, before
it is ripe, — or, where he [the gardener] is
disabled from working by sickness.
A question has arisen whether, if the gar-
dener be desirous of relinquishing his work,
it is lawful for him so to do ?— concerning
which two opinions are recorded, ONE, tha\
it is lawful ; and ANOTHER, that it is not so,
— This apparent difference may, however, be
reconciled, by opposing that the former
opinion alludes to cases wherein it is stipu-
lated that the gardener shall work with his
BooK XLIL]
ZABBAH
587
own hands, which condition he is, by reason
of sickness, unable to fulfil.
A lease of open land, for planting, in con-
sideration of a part of the produce, is invalid.
—Ip a man deliver to another a piece of open
ground, for a certain number of years, that
he may plant trees thereon, and stipulate
that the trees and the ground shall be in
partnership between them, each holding a
half, — it is invalid, for two reasons ; FIRST,
because they have stipulated a partnership
in the ground, being a thing which already
exists without the previous aid of the gar-
dener's labour : and SECONDLY, because such
a compact is liable to the same objection as
Kafeez Tehan ; for in this instance the master
of the orchard in effect hires the gardener,
and settles, as his wages, a part of the thing
produced by his labour, namely, one half of
the trees. — In this case, therefore, the whole
of the fruit and trees go to the master of the
ground ; and the gardener is entitled to the
price of his trees, and also to an adequate
consideration as the hire of his labour ; for
as it is impossible to restore to him the trees,
because of their adhesion to the ground, he
necessarily gets their value, and also an
adequate hire ; —nor is his hire included in
what he receives for the trees ; that is to
say, they are both due, distinctly ; the use of
labour being in this case of itself capable of
estimation.
BOOK XLIL
OF ZABBAH OR THE SLAYING OF ANIMALS
FOR FOOD.*
All animals killed for food, except fish
and locusts must be slain by Zabbah. —
ALL animals, the flesh of which is eatable,
except fish and locusts, are unlawful, unless
they be slain by Zabbah :— but when slain
by Zabbah they are lawful, as by means of
Zabbah the unclean blood is separated from
the clean flesh, — whence it is that all animals
not eatable (such as rats, dogs, or cats), are
rendered cleanf by Zabbah, excepting only
hogs and men
Zabbah is of two kinds, by choice, and of
necessity.— Z ABB AH is of two kinds ;— I.
Ikhtiaree, or of choice (that is, voluntary,
or at pleasure), which is effected by cutting
the throat above the breast ;— and II. Izti-
* The Arabic lexicographers define Zabbah
to signify, in its literal sense, the act of cut-
ing the throat ; in the language of the LAW
it denotes the act pf slaying an animal agree-
ably to the prescribed forms, without which
it is not considered as eatable.
f That is to say, their flesh may be used ;n
medical compositions ; but still it canno t <
eaten as ordinary food.
raree, or of necessity (that is, at random,
from necessity), which may be affected by a
wound on any part of the animal's body, —
The latter kind, however, is merely a sub-
stitute for the former, and accordingly is not
of any account unless the former be imprac-
ticable, as the former is more effectual in
extracting the blood ; but the latter suffices
where the other is impracticable ; as man-
kind are required to act only according to
their ability.
It must be performed by a Mussulman, or
a Kitabee. — IT is one of the laws of Zabbah
that the person who performs it be either a
Mussulman or Kitabee. — The Zabbah of a
Mussulman is therefore lawful ; and so also
the Zabbah of a Kitabee, although he should
not be a subject of a Mussulman state, — pro-
vided, however, that it be done in the name
of GOD, for in the KORAN we find these
words, "THE VICTUALS OF KITABEES ARE
LAWFUL TO YOU."
Provided he be a person acquainted with
the form of invocation, whether man or
woman, infant or idiot. — THE Zabbah is
lawful provided the slayer be acquainted
with the form of the Tasmeea, or invocation
in the name of GOD, the nature of Zabbah,
and the method of cutting the veins of the
animal ; and it signifies not whether the
person be a man or a woman, an infant or
an idiot, a circumcised person or an uncir-
cumcised.
It cannot be performed by a Magian. — AN
animal slain by a Magian is unlawful ; be-
cause the Prophet has said. "Ye may deal
with them as well as with KITABEES ; but ye
must not marry their women, nor eat of
animals slain by them ; " — and also, because
a Magian is a polytheist, and does not ac-
knowledge the unity of GOD.
An apostate. — THE Zabbah performed by
an apostate is unlawful ; because he is not
permitted to continue in the faith to which
he has turned, but must rather suffer death.
— It is otherwise with respect to a Kitabee ;
for if he change his religion, he is permitted
(according to our doctors) to continue in that
which he has adopted ; and the law will still
consider him, with respect to Zabbah, in the
same light as the people of that faith which
he has embraced.
Or an idolater. — THE ZABBAH of an idola-
ter is unlawful ; because he does not believe
in the Prophets.
Games slain in any place by a Mohrim is
unlawful, or slain by any other person in
holy ground — ANY species of game slain by
a Mohrim911 is unlawful, although it be not
slain within the holy territory :f — and in the
• The appellation given to a pilgrim dur-
ing his residence at Mecca — It is also applied
to any person who; having resolved to under-
take a pilgrimage, lays himself under parti*
cular restrictions.
t Arab. Arzal haram : the territory in the
neighbourhood of Mecca, where no animal
of the game species is ever put to death.
.88
ZABBAf'
•amc m mn?r, any game slain in the holy
territory is unlawful, although the slayer
be not a Mohrim. It is otherwise where
a Mohrim or any other person, slays an
animal -hit is ^ot game either in the holy
territory 'Tin any other place; for this is
sanctioned by the LAW, because the holy
territory affords no protection to goats, and
the slaying oi goats by a Mohrim is not
prohibited.
Rules with respect to the Tasmeea or in-
vocation.— IF th slayer wilfully omit the
Tasmeea, or invocation " in the name of
GOD," the animal* is carrion, and must not
be eaten. If, however, he omit the invo-
cation through forgetfulness, it is lawful.
in either case. — Malik, on the contrary,
maintains that it is unlawful in both ; and
that Mussulmans and Kitabees are considered
as the same, with respect to the omission of
the invocation. The same difference is to be
found in the opinions of our doctors concern-
ing a man omitting the invocation on letting
loose a hound or flying a hawk at game, or
when he shoots his arrow. The opinion of
Shafei, in this particular, is opposite to that
of all our sages ; for, previous to his time, it
was the universally allowed opinion, that an
animal slain under a wilful omission of the
invocation was unlawful ; the only point on
which they differed being respecting the
omission of it from forgetfulness. The sect
of Abdoola Ibn Omar were of opinion that an
animal slain under an omission of the invo-
cation from forgetfulness is also unlawful ;
whilst, on the contrary, the sects of Alee and
Ibn Abbas deemed it lawful, but not under
an omission made wilfully. — Hence Aboo
Yoosaf and the other Haneefite doctors have
declared an animal slain under a wilful omis-
sion of the invocation to be utterly unlawful :
and that the Kazee cannot authorize the sale
of meat so killed, it being contrary to the cur-
rent opinions of all our doctors. The argu-
ments of Shafei on this point are twofold.
FIRST, the Prophet has said, "Let MUSSUL-
MANS slay in the name of GOD, whether they
mention it with their tongues or not,";—
SECONDLY, If the invocation were essential
to the legality of the animal, it could never
be remitted on a plea of forgetfulness, any
more that the purification essential to prayer.
— Besides, admitting the invocation to be
essential, still the Mussulman faith is a sub-
stitute for it, in the same manner as in a
case of omission through forgetfulness. The
arguments of our doctors, on the other hand,
are twofold. FIRST, GOD has said, in the
KORAN, " EAT NOT ANY THING OVER WHICH
THE NAME OF GOD HAS NOT BEEN MENTION-
ED/'— SECONDLY, it is the universal opinion,
as has been already remarked. — SECONDLY,
the Prophet has said, regarding Ad dee the
son of Hatim, "When thou hast let loose
thv « T i .
of 'a
ano
thou
edst i.
and not <»\
dent th^t i
renders rhe '
of VJa'ik ih
strucuon of 'V
we have quor«*
larly exnress^u
sion is unlawf i
1 . i»- eat* d the H-JP
H . ' • ' af prime ; but
killme the g.nv
< : i , i • ca'isc thou repeal
<T<>!) over tit' p own JOL
• in r ." it is thi'ieforc cv;
•— >n of the rume of Goi
'inijw 'I 1'he artzumcn
'.' . L on a literal con
mv. of i l.r* KORAN, which
t» *', il nut being particu
h rein that the wilful omis-
the o-nission from for-
J Arab. Zabeeha, meaning (literally) the
mttuft slain .
getfujness lawfu1. But the answer which
we give to this argument is that the passage
plainly alludes to an animal with respect to
which the invocation has been wilfully
omitted, the latter being here different from
the spirit of the text, for if the spirit were
according to the latter ; the companions of the
Prophet (who hold the first rank in point of
authority) would doubtless have drawn argu-
ments from it, and the difference of opinion
that is to be found amongst them would not
have existed. The answer to Shafei is, that
the analogy which he establishes betwixt
wilful omission and omission from forgetful -
ness ; is not just: because he that forgets
acts under necessity, and the Mussulman
faith is admitted as a substitute in his behalf ;
whereas he who wilfully omits acts under no
necessity. — With respect, moreover, to the
saying of the Prophet quoted by Shafei, it
evidently alludes to a case of omission
through forgetfulness.
In the first species of Zabbah, it must be
pronounced whilst the animal's throat is cut.'
ting ; and in the second species, upon shoot-
ing the arrow, or letting loose the dog or hawk
at the game — IT is a condition of Ikhtiaree
Zabbah, that the invocation be pronounced
over the animal at the time of slaying it —
whereas, in the case of Zabbah Iztiraree (or
of a man slaying an animal in hunting), the
condition is that the invocation be pro-
nounced at the time of letting loose the h >und
or hawk, or shooting the arrow, which is
termed an invocation over the instrument.
Th • reason of this distinction is. that in the
first case the power of the man extends to the
slaying ; whereas in the second it is confined
to the act of letting loose the hound or hawk,
or of shooting the arrow, and does not ex-
tend to their reaching the animal ; where-
fore the invocation must be pronouced at
the instant of such act, which is in the power
of the man. — Hence if a man throw a goat
on its side; with an intention of slaying it,
and then pronounce the invocation, and
afterwards let that goat loose, and then,
without repeating the invocation, slay ano-
ther, this is not admissible, and the meat is
unlawful ; whereas if a man shoot an arrow
at an animal, and pronounce the invocation,
and the arrow, instead of th<* one which he
aimed at, hit another animal, it is lawful ; —
and the same law holds in the case of letting
loose a hound or hawk. — If the man, having
thrown the animal on its side and pronounced
ogoK
TI
ZA'BAli
589
the ii 'Vocation, should C st away the knife ir<>'
his hand and t ,ke up another, and with it
slay the animal, it is lawful ; — whereas if he
pronounce the invocation over one arrow,
and then take another and shoot the game
with it, it is unlawful, the instrument over
which the invocation was pronounced having
been changed.
IT is abominable to add any other thing to
the name of GOD at the time of performing
i he Zabbah, such as if a man were to say
" O GOD, accept this from me 1" — This may
occur in three different shapes ; as first;
where he says anything besides the name of
Gon, without pausing between them, or
making use of the conjunction "and," as in
the example cited above, — or, where he
says, Bism Illah, Mohammed Rassool Illah,
"in the name of GOD, Mohammad is His
Prophet/' which would be abominable, but
the meat would not be unlawful ;— secondly,
where he says anything besides the name of
GOD, without making a pause, but using the
conjunction ; as if he were to say, "Bism
Illah wa Ism Falan," "in the name of GOD
and the name of anothet ;" or "Bism Illah
wa Falan," " in tht name of GOD and
another ;" — in either of which case the
animal slain is unlawful ; and, thirdly,
where he says anything besides the name of
GOD, separately, and by itself, either before
or after the invocation, and the throwing
down of the animal, which is of no con-
sequence, and does not render the meat
unlawful for it is related of the Prophet,
that he said prayers immediately after per-
forming Zabbah.
Nothing must be said except the invocation
— IT is a condition of Zabbah that nothing
but the invocation be said : that is, that no
prayer or other matter be mentioned. If,
therefore, a man, during the Zabbah, instead
of "Bism Illah" ("in the name of GOD"),
were to say. " Illahoom agfar lee," ("O
GOD, forgive me!") the animal slain is not
lawful, as this is a prayer or entreaty. If,
however, instead of "Bism Illah," he say
"Alhumdolillah" ("praise be to GOD"), or
"Subhanillah " ("Goo is purest"), and
mean this as an invocation it is sufficient,
But if he sneeze during the Zabbah, and
exclaims "Alhumdolillah I" ("praise be to
GOD !' ) it is not sufficient (according to the
Rawayet-Saheeh), because the exclamation
will then be considered as thanks, and not
as the invocation. The method which has
frequently prevailed of saying " Bism Illah
or Ilia*. Akbaro" ("in the name of GOD,
ai d GOD is the highest"), during the Zabbah,
is copied from Ibn Abbas.
Proper method of shying animals. — THE
place for slaying is betwixt the throat and
the libba [the head of the breast-bone],
because the blood freely issues from a wound
given in that place : the Zabbah, therefore,
when performed anywhere within that space,
is lawful.
THE vessels which it is requisite to cut in
Zabbah are four ; namely, the Halkoom, or
windpipe ; the Mirree, or gullet ; and the
Wadijan, or two jugular veins.— This is
founded on a saying of the Prophet. Ac-
cording to Shafei it is sufficient if two of
these vessels (namely, the windpipe and
gullet) be cut. According to Malik, on the
contrary, three of the four do not suffice,
but it is requisite that they be all cut.
According to Haneefa the animal is lawful
where three of the four vessels are cut,
whichever they may be. Aboo Yootaf was
also at first of this opinion ; but he after-
wards declared it indispensably requisite
that the windpipe and gullet should be cut,
and one of the two blood-vessels : because
as the effusion of the blood is the design of
cutting the blood-vessels, one of them may
serve as a substitute for the other : — but as
the gullet and windpipe, on the contrary,
answer two different purposes (the one
being the channel of food, and the other the
channel of respiration), it is requisite there-
fore that thev be both cut, the one being
unfit to stand in the place of the other.
The argument of Haneefa is that the
majority represents the whole in many rules
of the LAW ; and when three of the four
vessels are cut, the majority is cut, and the
! object (which is the speedy effusion of the
j blood and deprivation of life) is effected,
since upon three of the above-mentioned
vessels being cut, the animal cannot remain
alive. If, therefore, to avoid giving addi-
tional pain, only three vessels be cut, it is
sufficient. — It is otherwise where only two
are cut ; for as, in that case, a cutting of
the majority, representing a cutting of the
whole, does not exist, it follows that the
animal so slain is not lawful — Mohammed
is of opinion that the greater part of each of
the four vessels should be cut, because every
one of them may be considered as a prin-
cipal of itself, being separated from the
rest. In the Jama Sagheer, also, he alleges
that if one half of *he windpipe, and one
half of each of the blood-vessels, be cut, the
animal is not lawful ; but that if the greater
part of the windpipe, and the greater part of
each of the blood- vessels be cut. previous to
the death of the animal, it is lawful ;— and
he has not made mention of any difference
of opinion.
It may be performed with nailst hornf, or
teeth (detached from their native place).— If
\ a man slay an animal with nails, horns, or
teeth it may be eaten without apprehension,
provided the nails, horns, or teeth be de-
tached from the place in which they grew.
The act, however, is abominable,* because it
introduces the use of human members, and
further, because it is productive of too much
pain to the animal, and we are directed to
perform the Zabbah in such a manner as
may be most easy to it. Shafei is of opinion
that an animal slain in the above manner is
• The force of this term is explained in a
note a little farther on.
£90
ZABBAH.
[VOL IV.]
unlawful, and carrion ; because the Prophet
has said, "the ZABBAH is lawful when per-
formed with any thin? that can draw blood,
or cut the vessels, excepting the teeth and
the nails, which are the instruments of the
ABYSSINIANS ;"* and also, because it is a
thing not allowed by the LAW any more than
if the teeth or nails had been fixed in the
place in which they grew. Our arguments,
on the contrary, are that the Prophet has
said, "Spill the blood with whatever thing it
may please thee ;" and it is likewise related
that he said, "Gut the vessels with what
thing soever thou pleasest." With respect
to the saying quoted by Shafei, it alludes to
nails and teeth fixed in their native place ;
for it was a frequent custom amongst the
Abyssinians to slay cattle in that manner.
— Nails, moreover, when removed from their
place, are instruments for cutting ; and the
object of Zabbah, namely, the effusion of
the blood, maybe accomplished with them,
whence they are the same as a sharp iron or
stone. But when they are in their place
they slay bv means of the force or weight
applied to them, and the animal so slain is,
in effect, strangled.
Or with any sharp instrument — IT is
lawful to slay with the kind of a reed, with
a sharp stone, and with every thing that is
sharp and capable of cutting the vessels and
drawing the blood excepting teeth and nails
fixed in their native place.
Precautions to be observed by the slayer. —
IT is laydable in the slayer to sharpen his
knife ; for the Prophet has said, " GOD has
enjoined us to be merciful to all ; wherefore,
when ye slay, let it be done in the most
merciful manner ; and when ye perform the
ZABBAH, let one of ye sharpen your knife
and do it in the easiest manner for the
animal.
IT is abominable first to throw the animal
down on its side, and then to sharpen the
knife ; for it is related that the Prophet once
observing a man who had done so, said to
him, "How many deaths do you intend that
this animal should die ?— Why did you
not sharpen your knife before you threw
it down ?"
IT is abominable to let the knife reach the
spinal marrow, or to cut off the head of the
animal. The meat, however, in either of
these cases is lawful. The reasons of the
abomination in cutting into the spinal
marrow are, FIRST, because the Prophet has
forbid this ; and, SECONDLY, because it un-
necessarily augments the pain of the animal,
which is prohibited in our LAW. — In short,
everything which unnecessarily augments
the pain of the animal Zabbah is abomin-
able.
IT is abominable to seize an animal des-
tined for slaughter by the feet, and drag it
to the place appointed for slaying it.
• The Abyssinians are held in great
contempt by the Mussulmans.
IT is abominable to break the neck of the
animal whilst it is in the struggles of death ;
but when the struggles are over it is not
abominable to break the neck and strip off
the skin, for then it is insensible to pain.
The animal is lawful although it be
wounded previous to cutting its throat — •
IF a man slay an animal by first cutting it
in the back of the neck, doing it, however,
in such a manner as to cut the vessels whilst
the animal is still alive, the meat is lawful,
because the animal dies by Zabbah : but the
act itself is abominable, as it unnecessarily
augments the pain of the animal, being in
effect the same as if he had first wounded
the animal, and afterwards cut its vessels.
If, on the contrary, the animal die previous
to the cutting of the vessels, the meat is not
lawful, because in this case the animal dies
before the Zabbah has taken place.
All tame animals must be slain by cutting
the throat ; and wild animals by chasing or
shooting them — IN the case of all animals
attached to man, and which do not fly from
him, the Zabnah is performed by cutting the
vessels : — but in the case of those which
have become w 1J, and fly from him, the
Zabbah is per forme a by chasing and wound-
ing them : because where the Zabbah Ikh-
tiaree, or Zabbah of choice, is impracticable,
there is occasi< n for the Zabbah Iztiraree,
or Zabbah of necessity ; and there is such
an impracticability regarding the latter class
of animals, but not regarding the former.
The Zabbah Iztiraree is also lawful regard-
ing an animal which has fallen into a well,
provided the other sort of Zabbah be im-
practicable.— Malik maintains that the meat
is unlawful in both the foregoing cases, —
that is, in the case of a wild animal, and of
one which falls into a well, — because such
instances are rare. We, again, say that as
the impracticability of the Zabbah Ikhtiaree
(which is allowed to be a valid argument),
exists in both these cases, it follows that the
substitute, namely, Zabbah Iztiraree, may
be adopted : nor is what he observes (that
"such instances are rare") admitted : on
the contrary, they very frequently happen.
In Kadooree, moreover it is expressly said
that it is lawful to use the Iztiraree Zabbah
towards all animals that fly from man ; —
and it is reported, from Mohammed, that if
a goat become wild in the plains, the Izti-
raree Zabbah is lawful with respect to it ;
but if it become wild in the city, the Izti-
raree Zabbah is not lawful, because in the
city it may be caught, and consequently the
Ikhtiaree Zabbah is not impracticable. With
respect to cows and camels; however, the
city and plains are alike ; because these
animals attack, with their horns or their teeth,
any person that attempts to catch them ;
whence it is impossible to catch them, even
though it be in the midst of the city that
they have become wild ; and the Ikhtiaree
Zabbah is therefore impracticable. When,
also, these animals attack a man, they are
considered as wild, provided it be not in his
ROOK XLII.]
ZABBA
591
puwer to catch tlvm; wherefore if one of
thtm should attack a man, and he with an
intention of Zabbah kill it, the flesh of it
may be eaten lawfully.
Cameh must be iluin by Nahr, rather than
by Zabbah —THE most eligible method of
slaying a camel is by Nahr, that is, spearing
it in the hollow of the throat, near the
breast-bone, because this is agreeable to the
Sonna, and also because in that part of the
throat the vessels of a camel are combined,
it is also lawful to slay it by Zabbah,
although this be considered as abominable,
since it differs from the Sonna. In regard
to goats and oxen, it is most eligible to slay
them by Zabbah, as being agreeable to the
Soona, and also because the vessels of a
goat are assembled together in the upper
part of the throat : — but they may also be
speared like a camel, although this method
be not approved, as being contrary to the
Sonna.
The f&tus of a slain animal is not lawful.
IF a person, having slain a camel or cow,
should find a dead foetus in the womb, such
foetus is unlawful, whether it be covered
with hair or not. This is the opinion of
Haneefa ; and it has been adopted by Ziffer
and Hasan bin Zceyad. The two disciples
maintain that if the foetus be complete in its
form, it is lawful, (and Shafei concurs with
them in this opinion) ; because the Prophet
has ordained the Zabbah of a foetus to be
the Zabbah of the mother ; that is to say,
the Zabbah of the mother answers for that
of the foetus likewise Besides, the foetus is,
in reality, a constituent part of the mother,
as it is joined to her until separated by a
pair of scissors or knife subsists on the
same food, and lives by the same breath ; —
and it is likewise considered as such in law.
insomuch that it is included in the sale of
the mother, and is rendered five by the
emancipation of the mother. The foetus,
therefore, being a constitvient part of the
mother, it follows that the Zabbah of the
mother serves also for it, when a separate
Zabbah is impracticable, in the same manner
as a wound in the case of (game serves as a
substitute for Zabhah. Haneefa, on the
other hand, argues that a fooetus if complete
with respect to life ; that is to say, that it
has a separate existence, inasmuch as it may
surive after the death of the mother,
whence it is that a separate Zibbah is ne-
cessary, in case of its being alive. More-
over, if a person destroy a foeetus he is
subject to a pecuniary penalty ; and the
owner of it may emancipate it alone, with-
out including the mother. It is also lawful
to bequeath it in legacy, or to leave a leaacy
to it. Besides, the object of Zabbah is to
separate the blood from the flesh ; an object
which cannot be accomplished, in the case of
a foetus, by the Zabbah of the mother alone.
It is otherwise with respect to wounding
game, as in that case the blood is separated
from the flesh, and though it be in an im-
perfect manner, yet as any other mode is
impracticable, it is therefore considered as
/lab bah. A foetus, moreover, is included in
the sile of the mother, because the sale
would otherwise be invalid, and from this
necessity it is included. And it is 'ike wise
rendered free by the manumission of the
mother, in order that a bond-infant may
not be born from a freed- woman.
Section
Of the Things which miy lawfully be eaten,
and of those which may not.
All beast* and birth of prey arc unlawful.
— ALL quadrupeds that sei/c their prey with
their teeth, and all birds which seize it with
their talons, are unlawful, the Prophet hav-
ing prohibited mankind from eating them. —
The reason of this prohibition is because
MAN is held particularly dear, and it is to
guard him, lest by eating of these animals
their bad qualities might be communicated
to him, and effect his disposition.
HYENAS an i foxes, being bofh included
under the class of animals of prey, are both
unlawful. — (Shafei maintains that they are
both lawful.) — Elephants and weasels are
also accounted animals of prey :* and peli-
cans and kites are abominable, because they
devour dead bodies.
Rocks are neuter : bat carrion crows and
ravens are unlawful. — Magpie*, the craco-
dile, otter, all insect*, and the ass and mule
are u n I a w f u I : — GROWS which feed
on grain [rooks] are neuter :fbut the crow
of the wilderness [the carrion crow ] and the
raven, are not lawful.— According to Haneefa
the magpie is neuter, like poultry, although
it be said (upon the authority ot Aboo
Yoo5af) that it is abominated, because it
frequently eats dead bodies. — The crocodile
and the otter, wasp*, and in general all in-
sects, are abominated. The ass and the nviie
are unlawful, because they are prohibited
by the Prophet.— The flesh of horses is he'd
in abomination by Hanecfa and Malik. Ac-
cording to the two disciples and Shafei it is
neuter : for it is mentioned in the Hadees
Joabir that the Prophet permitted it ; and
some are of opinion that the milk of mares
is also neuter.
Hares are neuter. — According to Haneefa,
the flesh of hires is neuter, because the Pro-
phet eat it, and commanded his companions
to cat of it.
* Arab. Zoo- Nab ; meaning, literally,
creatures which have canine teeth. The
elephant (although certainly not a beast of
prey) is perhaps classed with those, because
of his tusks.
t It is here proper to remark that, in the
Mussulman law, there are four gradations
from legality to illegality I. Hilal, or posi-
tively lawful. II, Mobah, or neuter (that
is, indifferent, and which may either be pur*
sued or avoided). III. Makrooh or abo-
minable (that is, reprobated, but which is
nevertheless lawful). IV. Hiram, or posi-
tively unlawful (that is, prohibited).
392
THE flesh and skin of all unlawful anijials
become pure after they have been killed
according to the laws of Zabbah, excepting
only men and hogs.— According to Shafei
they do not become pure.
No aquatic animal is lawful except fish.
—No animal that lives in water is lawful
except fish. Malik and and number of other
learned men are of opinion that all water
animals are lawful, others again say that
sea-dogs, sea-hogs, and mair-men, are un-
lawful.
Fish which perish <>f themselves are not
lawful, — FISHES which, dying of themselves,
float upon the surface of the water, are
abominated. According to Shafei and Malik
they are neuter. The rule observed amongst
our sect is this. — Fishes which are killed by
any accident are lawful, like those which
are caught ; whilst, on the contrary, such as
die of themselves without any accident are
unlawful, like those which are found floating
on the surface of the water. There are.
however, different opinions regarding such
as die of extreme heat or cold, Fishes and
locusts are lawful without hein? killed by
Zabbah
BOOK XLIII.
Of UZHEEA, UR SACRIFICE
Sacrifice must be performed at the Yd.
Kirban — IT is the duty of every free
Mussulman, arrived at the a«e of maturity
to offer a sacrifice on the Yd Kirban, or
festival of the sacrifice,* provided he be then
possessed of a Nisab,f and be not a traveller.
This is the opinion of Haneefa, Mohammed, j
Ziffer and Hasan ; and likewise that of ,
Aboo Yoosaf, according to one tradition, and j
also in the opinion of Shafei, sacrifice is not '
an indispensable duty, but only laudable. !
Tahavee reports that in the opinion of '
Haneefa it is indispensable ; whilst the two
disciples hold it to be in a '-tmng degree j
laudable. i
It ts incumbent on a man, for himself, and '
for his infant children ~T HE offering of a |
sacrifice is incumbent on a man on account j
of himself, and on account of his infant \
child. This is the opinion of Haneefa in I
one tradition. In another (which is recorded .
in the Zahir Zawayet) he has said that i* is
not incumbent on a man to offer a sacrifice
for his child.— In fact, according to Haneefa
and Aboo Yoosaf, a father or guardian are \
. .. ^ i
• This festival happens on the tenth of .
Zee-hidja, and was instituted in commemo- '
ration of Abraham having offered up his '
son Ishmael as a sacrifice to GOD, in conse- ,
quence of a vision he had. — (See Sales's
Koran, Vol, II. p. 312.)
t For the amount of Nisab, see Vol. I. p. ;
Ito6.
SACRIFICE.
[VOL. IV.
to offer a sacrifice at the expense of the
child, wheie he is possessed of property),
eating what parts of it are eatable, and
selling the remaining parts that are valuable
in their subs ranee) such as the skin, &c.
Mohammed, Ziffe^, and Shafei, have said
that a father is to sacnfice on account of his
I child at his own expense, and not at that of
j the child.
The victim for one person is a goal ; and
1 for any number from one t<j seven, a cow o>
came1/. — THE sacrifice established for one
person is a goat ; and that for seven, a cow
or a camel. — IF a cow be sacrificed for any
number of people fewer than seven, it is
lawful ; but it is otherwise if sacrificed on
account of eight. If, also, in an association
of srven people, the contribution of anyone
of them should be less than a seventh share,
the sacrifice is not valid on the part of any.
An jn'ur.al held in iomt property may be
jointly offered in -Jen/ice. — IF a camel that
is jointly and in an equal degree ths property
; of two men, should be sacrified by them on
; their own account, it is lawful, according to
the mo^t authentic traditions : — and in this
case they must divide the fler.h bv — weight,
as flesh U an article of weight. If, on the
contrary, they distribute it from conjectural
estimation, it is not lawful; unless thevadd
to each shan-of the flesh part of the head,
neck, and joints
Othcis friiiv bt: Admitted to a ihare in an
animal pin C/M <:<?!/ for sacrifice — IF a person
purchase a cow, with an intent to sacrifice
it on his own account, and he afterwards
1 admit six others to an association with him
in the sacrifice, it is lawful. — It, is however
moat adviseable that h? associate with the
others at the time of purchase, ia order that
the sacrifice may be valid in the opinion of
all our doctors ; as otherwise there is a
difference' of opinion. — It is related, fro-n
Haneefa, that it is abominable to admit
others to share in a sacrifice after purchasing
the animal ; for, as the purchase was made
with a view to devotion, the sale of it is
therefore an abomination.
/{ is not incumbent on the poor or travellers
— SACRIFICE is not incumbent on either a
poor man or a traveller ; for Aboo Uickir and
Omar Farook dul not offer the sacrifice of the
Yd during their travels : and it is, more-
over, related that Alee said, "neither the
prayers of Friday, nor the sacrifice of the
Yd are incumbent on travellers."
The time of performing it. — THE time of
the otfering is on the morning of the day o{
the festival , but it is not lawful for the
inhabitants of a city to begin the sacrifice
until their priest shall have finished the
occasional prayers Villagers, however, may
begin after break of day. The place, in
fact, must regulate the time. Thus, where
the place of celebration is in the country,
and the performers of it reside in the city,
it is lawful to begin in the morning : but if
otherwise, it must be deferred until the
prayers be ended
BOOK XL I II
SACRIFICE
IF the victim be slain after the prayers of
the mosque, and prior to those offered at the
place of sacrifice, it is lawful ; as is likewise
the reverse of this.
SACRIFICE is lawful during three days, —
that is, on the day of the festival, and on the
two ensuing days Shafei is of opinion, that
it is lawful on the three ensuing days. The
sacrifice of the day of the festival is, how-
ever, far superior to any of the others. It
is also lawful to sacrifice on the nights of
those days, although it be considered as
abominable. — Moreover, the offering of
sacrifices on these days is more laudable
than the custom of omitting them, and after-
wards bestowing an adequate sum upon the
poor.
// the sacrifice be delayed beyond the
proper time, the victim be bestowed m
charity. — IF a person neglect the perfor-
mance of the sacrifice during the stated days,
and have previously determined upon the
offering of any particular goat, for instance ;
or, being poor, have purchased a goat for
that purpose ; — in either of these cases it
is incumbent on him to bestow it alive in
charity. But, if he be rich, it is in that
case incumbent on him to bestow, in charity,
a sum adequate to the price, whether he has
purchased a goat with an intent to sacrifice
it, or not.
The sacrifice of a blemished animal is nut
admitted. — IT is not lawful to sacrifice ani-
mals that are blemished, —such as those that
are blind, or lame, or so lean as to have no
marrow in their bones, or having a great
part of their ears or tail cut off. Such, how-
ever, as have a great part of their ears or
tail remaining may lawfully be sacrificed. —
Concerning the determination of a great part
of any member, there are indeed various
opinions reported from Haneefa. — In some
animals he has determined it to be the third ;
in others more than the third ; and in others,
again, only the fourth. — In the opinion of
the two disciples, if more than the half
should remain, the sacrifice is valid ; and
this opinion has been adopted by the learned
Aboo Lays.
But a trifling blemish does not vender it
exceptionable. — IF an animal have lost the
third of its tail, or the third of its ear, or
eyesight, it may be lawfully sacrificed : —
but if, in either of these cases, it should
have lost more than a third, the offering of
it is not lawful. The rule which our doc-
tors have laid down to discover in what de-
gree the eyesight is impaired, is as follows.
The animal must first be deprived of its
food for a day or two, that it may be ren-
dered hungry ; and having then covered the
eye that is impaired, food must be gradually
brought towards it, from a distance, until it
indicate, by some emotion, that it has dis-
covered it.— Having marked the particular
spot at which it observed the food, and un-
covered the weak eye, the perfect eye must
then be bound, and the same process carried
on, until it indicate that it hat observed it
with Ae defectwe eye. If then the parti-
cular distance from those parts to where the
animal stood be measured, it may be known,
from the proportion they bear to each other,
in what degree the sight is impaired.
An unimnl wanting a horn, or madt or
castrated, may be sacrificed.— IF a person
sacrifice an animal without a horn, it is law-
ful ;— and so likewise where the horn is
broken, or where the animal is mad or cas-
trated.— Many, however, have said, that it
is not lawful to sacrifice a mad animal, un-
less it eat food , in the same manner as it is
not^ lawful to sacrifice a Gurceen [the off-
spring of a wolf and '»oat] unless it be fat.
With n-gard to animals that want teeth, it
is reported from Aboo Yoosaf that they may
be lawfully sacrificed, provided they be able
to chew. — or (according to another report)
provided the greatest of their teeth be re-
maining. Animals, however, that are born
without an ear cannot lawfully be sacrificed.
What is her-; said respects such blemishes
as may have existed in the animal previous
to the purchase of it : for if it be perfect at
the time of purchase, and afterwards con-
tract such a blemish as to render the sacri-
fice of it unlawful, and the proprietor be
rich, it is in that case incumbent on him to
j sacrifice another ; whereas, if he be poor, he
may lawfully sacrifice the same. The reason
of this is, that as an offering is incumbent
on a rich man originally, and not on account
of his purchase, the animal, therefore, which
he buys is not particularly set aside for the
offering ; whereas, on the contrary, an offer-
ing not being incumbent on a poor man,
except when he purchases an animal with
that intent, the animal so purchased is there-
fore particularly destined for the purpose :
— and accordingly, our doctors hold that if
an animal, purchased with a view to be
offered, should die, it is incumbent on the
proprietor, if he be rich, to substitute an-
other, but not if he be poor; — or, if the
animal be either lost or stolen, and the pur-
chaser, having bought another, should then
recover the first, in >uch case it is incumbent
on the proprietor, ii he be rich, to ascnhce
one of them, whether it be the first bought
or the second ; but if he be poor, he is under
an obligation to sacrifice both.
Any accident befalling the victim at the
time of slaving it does not invalidate the
sacrifice — IF it should happen that the goat,
having been turned over in order that the
sacrifice might be performed, in the struggle
breaks one of its legs, in that case, provided
the sacrifice be immediately made it is law-
ful and sufficient. So also, it is lawful, if
the animal, in that situation, having re-
ceived any hurt, should run away, and
having been immediately and without delay
taken, should then be sacrificed. Moham-
med has likewise judged the sacrifice lawful,
if, in this case, the animal should not be
retaken until after some delay ;— in opposi-
tion to the opinion of Aboo Yoosaf.
Goats, camels, and cotus alont ar« lawful
594 ^ACRIFICE
in sacrifice. — IT is not lawful to offer a (acri-
fice of tny animal except a camel, a cow,
or a goat ; for it is not recorded that the
Prophet or any of his companions ever
sacrificed others. Buffaloes, however, are
lawful, as being of the species of a cow.
[VoL- IV.
Every animal of a mixed breed, 'Moreover,
IB considered as of the same species with
the mother.
Age at which an timmal ?«> fit for sacrifice.
THE sacrifice is lawful of any animal of
the three species above mentioned, although
it be only a Sooner :* hut not if votmger ;
excepting, however, a sheep, which mav be
sacrificed when a Judday, or so voung as to
have no teeth ; and in this case our doctors
have made it a condition that the sheep be
of large stature, insomuch as to have the
appearance of a Soonee at a little distance
The period of Juddy in sheep (according
to our doctors) n at the expiration of six
months, and tht* commencement of the
seventh The time of Soonee in goats or
sheep is at the age of one vear , in co\\s, at
the age of two ; and in camels at the age of
five years
(j one j/ seven joint sacri/iceo die, the
consent of his heirs is requisite to the sacri-
fice.— IF seven persons purchase a co\\ for
sacrifice, and one of them afterwards die,
and his heirs desire the other six to sacrifice
a cow on account of themselves, and on
account of the dead, it is lawful .-—whereas
if they sacrifice it without the consent of the
heirs it is not lawful.
IF a Christian, or any person whose object
ia the flesh, and not the sacrifice, be a sharer
with six ethers, the sacrifice is not lawful on
the part of any
Rulfs with respect to the disposal oj the
ftesh, &c , of the victim. — IT is lawful fora
person, who offers a sacrifice, either to eat
the fiesh, or to bestow it on whomsoever he
please, whether rich or poor ; and he may
also lay it up in store.
IT is most advisable that the third part
of the Mesh of a sacrifice be bestowed in
charity.
IT is lawful either to bestow the skin of a
sacrifice in charity, or to make any utensil
of it, such as a bucket, sieve, or the like. It
is likewise lawful to barter it for any un-
consumable article that yields profit in its
substance ; — but it it not allowable to barter
it for any thing consumable, as vinegai , and
«mch like. Flesh in these respect s, is con-
sidered in the same light as the skin, ac
cording to the most authentic naditions
IF the Mesh of a sacrifice be sold along
with the skin of it for money, or for any
thing that is not pn fitable but in consump-
tion, it is incumbent on the seller to devote
the price to the poor ; and the sale is valid.
IT is not lawful to give a part of the
sacrifice in payment to the butcher.
•The sheep and the goat are held to be of
the Mme tpeciM.
IT is abominable to take the wool of the
victim and sell it before the sacrifice be
performed ; but not after the sacrifice. In
the same manner, it is abominable to milk
the victim and sell the milk.
It must be slam hy the sacrificer, or \n /u'i
presence. — IT is most advisable that the
persons who offers the sacrifice should him-
self perform it, provided he be well ac-
quainted with the method ; but if he should
not be expert at it, it is then advisable that
he take the assistance of another, and be
present at the operation.
A Kitahee may he employed tc. slay it, hut
not a Magtiin. — IT is abominable to commit
the slaying of the victim to a Kitabee. If,
however, a person order a Kitabee to slay his
victim, it is lawful. It is otherwise where u
person orders a Marian, or worshipper of
fire, to slav his victim, for this is inadmis-
sible.
fiuo persons slaving ftich other's victim by
mistake must make a mutual compenttition.
— IF two persons commit a mistake, each
slaying the offering of the other, it is law-
ful ; and no compensation is on that account
due from either. If, also, having erred in
this manner, they should eat the flesh, and
then discover the mistake, in this case it is
requesite that they sanctify the act of each
other, and sacrifice is then fulfilled If, on
the contarary, they refuse to do so, and
dispute the matter, each is in that case
entitled to take a compensation for the value
of the flesh of his offering from the other
and must then bestow such compensation in
alms, as it is a return for the flesh of his
offering : and the same rule also obtains
where a person destroys the flesh of the
offering of anothei.
Case of sacrifice of an u*u>pe<J <mimaL —
IF a person usurp a goat and sacrifice it, he
is in that case bound to compensate for its
value, and his offering is thereby tendered
valid ; because upon paying the compensation
he is held to have been proprietor of the
goat from the time of his having usurped it.
It is otherwise where a person sacrifices a
goat committed to him as a deposit ; for this
is not valid ; because he is obliged to com-
pensate for it (net on account of the animal,
b'it) on account of the sacrifice, and hence
his property in it is not established until
after he has sacrificed it
BOOK XLIV
OP K1RAHEEAT OK ABOMINATIONS
Difference of opinions concerning the
extent of the term Makrooh. —The author of
the He day a remarks that our doctors have
disagreed concerning the extent in which
XLTV.]
ABOMINATIONS.
>NS
595
the term Makrooh* is to he received —
Mohnmmed was of opinion that every thing
Makrooh is unlawful ; but as he could not
draw any convincing argument from the
sacred writings in favour of this opinion, he
renounced the general application of un-
lawfulness, with respect to such articles, and
classed them under the particular description
of Makrooh, or abominable. It is recorded,
on the other hand, from Haneefa and Aboo
Yoosaf, that Makrooh applies to any thing
which, in its qualitief, nearly approaches to
unlawful, without being actually so. — This
article is comprehended under a variety of
heads or sections-
Section /.
Of Eating and Drinking
It it abominable to eat the flesh or to drink
the milk of an ass, or to take the urine of a
camel, unless medicinally. — HANEEFA has
said that the flesh and milk of an ass, and
the urine or a camel are abominable. — Ac-
cording to Aboo Yoosaf the urine of a camel
may be taken as a medicine ; but with
respect to milk, it is a secretion from the
blood, and is therefore subject to the same
rule with the flesh of the animal from which
it is produced.
Or to use vessels of gold or silver. — IT is
not allowable, either to men or women,, to
use a vessel of gold or silver in eating,
drinking, or in keeping perfumes ; because
the Prophet has said, with respect to any
person who drinks out of a vessel of silver
or gold, that "the fire of hell shall enter
into his belly:" and it is also related, that
a person having brought water for Aboo
Hareefa in a silver vessel, he refused to
drink, decl.tring that the Prophet had pro-
hibited him from drinking out of such a
vessel. The prohibition, therefore, being
established with respect to drinking, it
follows that the rule extends to the using of
oils, and flimilar articles, that being in effect
the same with drinking, since in both rases
the use of a vessel of gold or silver is in-
duced,— whence it is that the use of a
golden or silver spoon is abominable, as also
the use of a silver or golden bodk'n for
drawing antimony along the eyelids, or of
boxes for holding antimony, or any other
thing, made of those metals.
ft is allowable to use vessels of lead, glass,
crystal, or agate. — THE use of vessels of
lead, glass, crystal, and agate, is permitted.
Shafei maintains that those are abominable,
because they resemble gold or silver in point
of splendour.
Or to drink out of vessels, or ride upon a
saddle, or sit upon a chair or so/a, ornamented
urith gold or silver. — IT is allowable, accord-
ing to Haneefa, to drink out of a wooden
• Makrooh is the participle passive of
Kuriha, to abominate ; this word is fre-
quently taken in a milder fence ; and may
rtlate to any thing improper or unbecoming.
vessel ornamented with silver, provided the
particular part to which the lip is applied be
void of it. In the same manner, also, it is
permitted to ride upon a saddle interwoven
with silver, provided the space allotted for
the seat be plain ; and this rule likewise
holds with reepect to a couch or sofa. —Ac-
cording to Aboo Yoosaf, on the contrary, all
those are abominable. — From Mohammed
there are two traditions on this point ; one
corresponding with the opinion of Haneefa,
and the other with that of Aboo Yoosaf.
After the same manner they hav» disagreed
concerning the use of a vessel or chair
adorned both with gold and silver ; con-
cerning swords mosques, frames of glasses,
and books, when they are ornamented either
with gold or silver ; and also concerning
stirrups, bridles, or cruppers of that de-
scription.— These differences of opinion,
however, exist only where the gold and
silver is so applied, in any of these cases,
that it is to be separated only by means of
some difficult process : but the gilding of
things, either with gold or silver, in such a
manner as to require art to separate it, is
unanimously allowed.-- -The argument of the
two disciples is that the use of one part of a
vessel includes the use of the whole ; where-
fore they hold it equally abominable as if
the part applied to use were like vise of gold
or silver. Haneefa, on the other hand,
argues that ornaments of gold or silver,
when not applied to use, are merely appen-
dages, and therefore not to be regarded ;
whence the use of the article is allowable, in
the same manner as wearing a garment
which is trimmed with slik, or a ring which
haa a piece of gold set in it.
The information of an infidel may fee
credited with regard to the lawfulness of
any particular food. — IF a person send his
servant, or a hireling, being a Magian, to
purchase meat, and he purchase meat ac-
cordingly, and acquaint his master that he
had bought it from a Jew, a Christian, or a
Mussulman, it is lawful for him [the master]
to eat the food so purchased : because the
word of an infidel is creditable in all matters
of a tetiporal nature, as he is presumed to
be possessed of reason, and falsehood is
prohibited in his religion : besides, there is
a necessity for believing his assertion in
temporal concerns, from their frequent oc-
currence. If, on the contrary, the servant
inform his master, that " he' purchased the
meat from an infidel who is not a scripturist,
and it was slain by one who was neither a
scripturist nor a Mussulman," it is in that
case unlawful for the master to eat the flesh
so purchased ; for as the word of an infidel
is credited with respect to the legality of
meat, it is credited with respect to the ille-
gality, in a superior degree.
A present may be accepted by the hands of
a slave or an infant. — IP a slave, either male
or female, or an infant, should carry some-
thing to a person, saying, "such an one has
sent this to you as a present," in that case
A&OMINATIONS.
[VOL. IV.
the person may justly credit the information,
as it is a frequent custom to send presents
by such messengers, In the same manner,
if either of these should intimate to a slave
that his master had given him a licence to
trade, he is allowed, accordingly, to accept
of it ; because it is perhaps impossible for
them to bring witnesses to attest the inten-
tion of the master, whence, if there word
were not credited, it would occasion an
obstruction to business, and an unnecessary
restraint amongst mankind. — It is related,
in the Jama Sagheer, that where a slave girl
comes to a person and says, "my master has
sent me as a pxesent to you," it is lawful for
that person to accept of her.
The word of a reprobate maybe taken in
all temporal concerns, but not in spiritual
matters. — IN all temporal concerns the word
of a reprobate4* may be taken ; but in
matters of a spiritual nature the word of an
upright man only is to be credited. The
reason of this distinction is that affairs of a
temporal nature are of frequent occurrence
amongst every sect of men ; whence if, in the
transaction of them, anything more than
maturity of age and sanity of intellect (such
as integrity, &c.) were required, it would
occasion a restriction in business : to obviate
which ; the word of one person, in such case,
is creditable, whether that person be virtuous
or dissolute, a Mussulman or an infidel, a
man or a woman. Concerns of a spiritual
nature, on the contrary, are not of such
frequent occurrence ; hence it is requisite
that in relation to them a greater caution be
used. The word, therefore, of none but an
tipright Mussulman is admissible in spiritual
matters ; because an unjust man lies under
A suspicion of falsehood ; and an infidel, as
not following the LAW himself, has no right
of enforcing it upon others. The case is
different with respect to temporal matters ;
for an infidel is permitted to reside in a
Mussulman terrirory purely on account of
his temporal business, for which he would be
incapacitated if his word in temporal matters
were to be rejected. Prom this necessity,
therefore, credit is given to it.
And the same of a person of unknown
character. — A person, also, whose character
is unknown is considered in the same light
as an unjust man or reprobate ; and his
word relative to matters of faith is in*
admissible. It is. however, related in the
Zahir Rawayet, that suspicion and probable
conjecture are the grounds on which it is
lawful to determine in this point ;— in other
words, practice must accord with the con*
jecture which appears moat probable or best
supported. There is also another tradition
from Haneefa, that the word of a person of
• Arab, Fasik, in opposition to Adi], a just
or upright person.— The distinction between
these terms hat been fully explained else-
where.
be believed in
unknown character may
matters of a spiritual nature
Thf word of an upright person, whether
freeman or slave, maybe taken in spiritual
matters. — THE word of a freeman or slave,
whether male or female, is admitted in
spiritual concerns, provided they be up-
right ; for, in consequence of integrity,
veracity preponderates ; and this is a cause
of belief. — IT is to he observed, that what
was before related ; of licensing a slave to
trade, sending presents and messages, and
the like, are of the class of temporal matters ;
as is also the investing of another with the
pouerof agency. — Information, on the con-
trary, concerning the impurity of water (for
instance) is a matter of a spiritual nature.
In this instance, therefore, if the former be
an upright Mussulman, the person who
receives the information is at liberty; in
performing his purification, to substitute
sand for the water, in the manner of teyuxn-
mim,t and must not perform it with the
water — If, on the contrary, the informer be
a profligate, or of unknown character, it is
incumbent on the person who receives the
information to consider the matter delibe-
rately ; when, provided he conclude the in-
former to be a person of veracity, he must
perform teyummim instead of ablution— (In
this case, however, he should use the pre-
caution of first pouring out a little of the
water, and may then perform teyummim ;
whereas, if the informer be of an upright
character, as there is in that case no suspicion
of falsehood; the pouring out the water by
way of precaution, is entirely unnecessary.)
—If, on the contrary, the result of his reflec-
tion be that the information was false, he
must perform ablution, but not teyummim
with the water. This is what the law en-
joins ; but in this case also it is a requisite
precaution that, after ablution ; he perform
teyummim, as the judgment he has formed
in this case is entirely from conjecture. It
is also to be observed that legality and
illegality are considered as of a spiritual
nature where they affect not the property of
any person. Where, on the contrary, the
testimony of one upright person tends to
injure the property of another, it is not in
such case of any weight ; — as where, for
instance, an upright person testifies that a
certain person has married his own foster-
sister ; in which case his testimony is not
creditable, as tending to hurt the property
of the husband, inasmuch as he would be
deprived of the effects of the woman, to
which the marriage had entitled him ; — or
where a person informs another, who had
purchased a slave girl, that she is his own
foster-sister, or that she is a free woman.
It is laudable to accept an invitation to a
marriage- feast, notwithstanding any irre-
9 Arab, Adil ; in opposition to Faiik.
t For a further explanation of thit. M
Vol. I. p. 105.
BOOK XLIV
ABOMINATIONS.
SO/
s winch may be practised there. — IF
a person be invited to a marriage-feast, and,
upon going there, observe the company to be
engaged in wanton amusement, or in singing,
still it is laudable in him to sit down and
partake of the entertainment ; for the ac-
ceptance of *uch invitation is strictly or-
thodox, as the Prophet has said, "whosoever
refuses an invitation is certainly not obedient
to me."— He is not, therefore, to leave the
entertainment on account of any irregularities
committed by others ; in the same manner
as, at the ceremony of a funerel prayer, a
person is not to absent himself, although
peoole hired for the purpose of lamentation
mav there be present. — If, however, he have
power to prohibit these irregularities, it is
incumbent on him to exert it : br.t if he
possess not such power, he must then re-
main with patience. — This is where the
person invited is not a Mooktidda,* or holy
rnan ; for, if such a person should be present
and have it not in his power to restrain these
irregularities, it is then incumbent on him
to withdraw, as his presence in such a place
shows a relaxation of religion. If also,
irregularities be committed during the time
of eating, it is improper that any person
should remain there, whether he be a Mook-
tidda or not ; GOD having prohibited us, in
the KORAN, from sitting in company with
the wicked. All this proceeds on the sup-
position of the invited person being actually
present at the marriage-feast, before he is
awar* of those irregulaties.
Unless those irregularities be known before-
hand. — FOR if he be previously aware of
such irregularities being practised, it is in-
cumbent on him to stay away, whether he
DP a Mooktidda or otherwise . :
Section 11.
Of Dress
Womtn may dress in silk ; but m?n must \
not — A DRESS of silk is not lawful ror men ; j
but women are permitted to wear it ; for it
is related bv several of the companions of
the Prophet, of whom was Alee in particular,
that one day the Prophet appeared with a
piece of silk in one hand, and of gold in the
other, and said, "Both these are prohibited
to the MEN of my tribe, but are lawful to the
WOMEN."
Farther than what is merely ornamental. \
A SMALL quantity of silk, such as three j
or four fingers breadth, used &s a fringe or
border to a garment, or applied to any such
purpose, is allowable ; because it is related
that the Prophet prohibited the wearing of
silk, excepting a shred of the breadth of
11 Literally, an exemplary person, at being
eminent for sanctity of character. — whence
the term is applied to priests, or other oer-
sbns who exercise a holv office.— The Persians
term such a person a Peishwa, or one who
t«Lds the way,
three or four fingers in a garment; and it
is moreover related, that the Pr < phet wore
a robe with an edging of silk to it,
A pillow of silk is allowable. — ACCORDING
to Ha nee fa, it is allowable to make a pillow
of silk, and to sleep upon it. The two dis-
ciples, on the contrary, hold this to be abom-
inable ; and the same difference of opinion
obtains concerning making curtains of silk,
and hanging them upon doors- The arguments
of the two disciples on this point are twofold.
FIRST, the use of silk in general is prescribed
bv the Prophet. SECONDLY, the making of pil-
lows and curtains of silk is a custom of the
proud ; and the imitation of such is forbidden.
— The argument of Haneefa, on the other
hand, is that the Prophet sat upon a pillow
of silk ; and that there was one laid upon
the sofa of Abdoola Ibn Abbas.
And a dress of silk to warriors. — IT is
allowed to warriors, in the opinion of the
two disciples, to wear a dress of silk or satin
in the time of war ; because there is a tra-
dition, recorded by Shaaby, that the Prophet
permitted the wear of silk during the time
of battle. Moreover, it is in a manner neces-
sary, as being best adapted to counteract the
hard pressure of armour, and tending to
excite horror in the eyes of the enemy.
Haneefa, on the contrary, holds this to be
abominable, because the traditions which
point out its illegality are absolute, without
distinguishing between any particular period
or juncture, such as war, or the like ; and
the necessity may be answered in a dress of
Makhloot.— that is having the wool of silk,
and the warp of anything else. Besides,
silk, and every other thing that is proscribed,
becomes allowable in no case but that of
necessitv ;— and with respect to the tradition
recorded by Shaaby, it alludes to dress of
Makhloot.
Or of mixed cfoth— A QARUBNT of cloth,
the woof of which consists of silk, and the
warp of anything else, such as wool or cot-
ton, is allowable to wear during war, because
of its being necessary : but it is abominated
at any other junction because then there is
no necessity for it. The same rule also
obtains with respect to cloth of which the
warp is silk and the woof wool or cotton ;
and for the same reason.
Se£tlon III.
Of Ornaments.
Men are not to wear ornaments of gold
or silver, except on signet-rings, girdles, and
swords — MEN are prohibited from the use of
ornaments of gold, such as rings, and the
like, because of a saying of the Prophet to
that effect. Ornaments of silver are like-
wise unlawful ; because silver is, in effect,
the same as gold. An exception, however*
is made with respect to signet-rings, girdles,
or swords ; the use of silver in ornamenting
those being approved.— In the Jama Sagheer,
it Is related that silver rings only should be
used: wtanoA itmavha inferred thatrfom
598
ABOMINATIONS
[VOL. IV.
of stone, iron, or brass, are forbidden. It is
also related, that, the Prophet on seeing a
ring of brass upon the ringer of a man, said,
"I perceive the smell of an image ," and
again, that having seen, upon the finger of
another person, a ring of iron, he spoke to
him thus, "1 see upon your finger the orna-
ment of the people of hell," — What is here
said respects the circular hoop, and not the
setting or beazel of the ring. Hence it is
lawful that the setting be of stone. It is
proper, however, that men, in wearing rings,
turn the setting or beazel towards the palm
of the hand, and women otherwise, because,
with respect to them, rings are considered as
ornaments. — Sovereigns and judges, more-
over, wear rings, only as having occasion to
seal with them ; but with respect to other
people, it is most advisable that they never
wear rings, as a like reason does not operate
with them.
The setting of a ring may be of gold.— -If
a piece of gold be inserted in the .Betting of
a ring, it is allowable ; for, in that case, the
gold is cnly a dependant on the ring, in the
same manner as a shred of silk upon a gar-
ment
Gold is not to be ysed in any cases of neces-
fttv, where silver will answer equally well. —
IT is forbidden, in the opinion of Haneefa,
to bind the teeth* with a thread of gold. Mo-
hammed, on the other hand, maintains that
this practice is unobjectionable. Of Aboo
Yoosaf there art two opinions recorded ; one
corresponding with the opinion of Haneefa,
and the other with that of Mohammed. The
two disciples, in support of their opinion,
quote the case of Arifja the son of Assad,
who, having lost his nose by a wound he
received at the battle of Goo lab, made a
false one of silver, which occasioning a very
offensive smell, the Prophet commanded him
to make another of gold. The argument of
Haneefa is, that gold is in its nature unlaw-
ful whence the use of it is allowable only
in a case of necessity ; and as the necessity
may in general be equally well answered by
substituting silver, gold therefore remains
subject to its original state [of prohibition] :
this necessity, however, could not be an-
swered, in the case cf Arifja, but by a sub-
stitution of gold, because of the silver
occasioning a nauseous smell.
In/ants must not be sumptously appa-
relled — IT is abominable in any person to
clothe has infant child in a dress of silk,
with ornaments of gold ; for, since that dress
is proved to be prohibited to men, they are
consequently forbidden to dress others in it ;
in the same manner as it is unlawful to give
wine to drink, because of the illegality of
drinking it.
Vain superfluities are not allowable.— THE
custom of keeping handkerchiefs, as is fre-
• This possibly means where a suppositi-
tious tooth is placed in the head to supply the
loss of one.
1 quently practiced, is abominable. Manv,
I however, hold that it is allowable, if done
fiom motives of necessity. This is approved:
for the prLicticf is abominable only when
done ostentatiously, in the same manner as
, the modt* of sitting with the knees on a line
< wi'h the chin, and the hands folded round
| the legs.
I IT is allowable to bind the finger with a
! string, or a ring, with a view to aid the
memory concerning some business relative
to another person.
; Section IV.
Of the Commerce of the Sexes ; and of
i looking at or touching any Person.
Men must not look at strange women, ex-
cept in the face, hand, or foot — IT is not
permitted for a man to look at strange women,
except in the face, and palm of the hands,
which is allowable, because women being
frequently concerned in business with man,
such as giving taking, &c., it would there-
fore subject them to great inconvenience if
these parts were veiled, whence there is a
necessity for leaving them bare. — It is re-
ported, from Haneefa, that it is allowable
to look at the feet of a woman; because of
there being sometimes occasion for it. From
Aboo Yoosaf there is a tradition that the
seeing of the shoulder is likewise allowed;
because that, from the influence of custom,
it is left exposed. If, however, a man be
not secure from the impulse of lust, it is
not allowable to look even at the face of a
1 woman, except in cases of absolute neces-
| sity.
A man (if young) must not touch a strange
woman. — IT is not lawful for a man to touch
the hand of a strange woman, notwithstand-
ing he have a control over his lust ; because
the Prophet has said, "whosoever toucheth
a strange woman, shall be scorched in the
hand with hot cinders on the day of judg-
ment " — This, however, proceeds on a sup-
position of the woman being young ; for if
she be old, insomuch as to be insensible to
lust, in that case it is lawful to t >uch her at
the time of salutation. The cane is similar
where the man, being old, is insensible to
oassion himself, and not such as to excite it
in the woman he touches.
A female infant may be touched or looked
at. — IT is lawful to touch or look at a younjj
girl insensible of the carnal appetite ; as in
that case there is no apprehension of seduc-
tion.
Rules to be observed by a magistrate with
respect to woman, when acting in his judicial
capacity or by a witness. — A KAZEB may
look in the face of a strange woman, when
he passes a decree upon her, notwithstanding
* Meaning, that when a person sits in the
manner so described, from ostentation, it i>
abominable, but that it is allowable when
done with a view to obtain rest.
K XJJV.I
AbMlNTIONS.
399
there be an apprehension of lust ; because
he is under a necessity of so doing, for the
purpose of expediting his decrees, in order
that the rights of mankind may sustain no
injuiy.— Witnesses also, are under the same
necessity, in order to their giving evidence ;
and hence it is lawful for them likewise to
look in the* face of a strange woman, where
they are desirous of giving evidence concern
mg her.— With respect, however, to looking
merely in order to bear testimony, it is cer-
tain that this is not allowable where there is
any apprehension of lust, since others might
be found free from such influence ; which
argument does not apply at the time of actu-
ally giving evidence,
A woman be looked at with a view to
marriage?.- A MAN may without blame look
on a woman whom he has an inclination to
marry, notwithstanding he knows that it
will inflame his passion
Rules to be observed by a physician in
prescribing for women. — A PHYSICIAN, in
administering to a strange woman, is per-
mitted to look at the part affected It is,
however, most advisable that he instruct
another woman how to apply the remedy, as
the circumstance of an individual of one
sex looking at another of the same is of less
consequence. If he should not be able to
procure a fit woman to instruct, it is in that
case incumbent on him to cover all the mem-
bers of the woman, leaving exposed only the
particular part Affected, when he may look
towards it ; refraining from it however as
much as is possible, since anything the
sufferance of which is prompted by neces-
sity, ought to be. exercised with as much re-
striction as the circumstances of the case
will admit — In the same manner also, it is
lawful for a man, in administering a glyster
to a man, to look at the proper part
A man may view 01 touch an\ pait oj
^mother man, except hii nakedne^ -ONE
man may. without blame, look at any part
of another, except from beneath the navel
up to the knee ; because the Prophet has
said, "the nakedness of a man is from the
navel to the knee ;" and as, in another tradi-
tion, it is said, "from beneath the navel," it
may thence be inferred that the navel is not
included, but that the knee is so. — Still,
however, in this a gradation is observed ;
for the exposure of the knee is of less con-
sequence than that of the thigh, as on the
other hand the exposure of the thigh is not
so bad as that of the positive nakedness, or
genitals ; wherefore a person is to be re-
proved mildly when he leaves his knee
bare ; to be treated more harshly when he
covers not his thigh ; and, in the case of
exposing his genitals, must be compelled by
punishment to cover them.
EVERY part of a man, which it is proper
for another to look at, may likewise, without
blame, be touched by him ; for the sight and
the touch of those parts of a man which are
not nakedness are considered in the same
light.
A fyoman also, may look at any part of a
man except his nakedness (provided she be
free from lust. )— WOMEN may lawfully look
at a man, except in the space from the navel
to the knee ; provided, however, they be
secure from lust; for men and women are
considered as alike, in looking at part^ not
private, the same in looking at a dress or
a quadruped. (In the Mabsoot, under the
head of Hermaphrodites, it is related that a
woman looking at a strange man resembles a
man locking at his female relation in which
case it is unlawful that he look at her back
or belly,* lest he thereby excite lust.)— ff,
however, a uuiimn be inflamed with lust,
or harbour a stionq suspicion that looking at
a man would cie.ite it, or be in any degre**
doubtful about it, in either of these cases it
is most becoming that she shut her eyes, and
avoid looking at a strange man ; and if a
man also be thus circumstanced, it is incum-
bent on him to close his eyes, nor must he
look at a strange woman ; because lust having
great power over women, is considered as
always operating upon them ; and when
men are also subject to a passion of that
nature, it exists then on the part of both ;
and this IN a weighty reason for rendering
their looking at each other illegal. It is
otherwise where the woman is influenced
and not the man, for then there is not an
equally cogent reason to render it unlawful,
one party only being in thnt case inflamed
with lust.
Ot at any such pan of anothei woman. —
\ WOMAN is permitted to look at any part
of another except from under the navel to
the knee. This is according to one tradition
of Haneefa ; but according to another tradi-
tion, the looking of one woman at another
of her sex, is the same as that of a man at
his female relation : that is, they are hdt
permitted to look at the back or belly.
The first tradition is. however, the most
•authentic
A man may view his wife or his slave in
any part. — IT is lawful for a man to look at
his slave t^irl in any part, provided he be
not related to him within the prohibited de-
grees ; and also at his wife in any part, even
in the pudenda, if he please ; because the
Prophet has said, "shut your eyes from all
excepting your wives and female slaves "
Nevertheless, it is most becoming that a hus-
band and wife should neither of them look
at the genital parts of the other, as the Pro-
phet has said, "when ye copulate with wo-
men of your own tribe, you must conceal as
much as possible ; and be not then naked,
as that savours too much of the custom of
asses/'
A man may look at t/u person of hi* kins-
woman.— IT is lawful for a man to look at
his female relation either in the face, head,
breast, shoulder, or legs : for as it is usual
* The reason of this is explained here-
after.
600
ABMINATIONS.
[VOL. IV.
with relations to visit one another without
any previous intimation, and unattended
with any retinue, and as women, in their
house, generally wear a dress adapted to
service, if, therefore, the sight of these parts
wer» culpable, it would impose too great re-
straint upon them. It is different with re-
spect to other parts ; and hence proceeds the
illegality of looking at the back or belly. (It
IB proper to observe that by the term rela-
tion [Mohrim], as here used, it to bs under*
stood any person between whom and the be-
holder marriage is utterly and perpetually
illegal, in consequence of affinity by either
blood or marriage )
Male and female relations may touch each
other (if there be no apprehension of passion.)
— EVERY part in a relation which it is lawful
to look at may likewise be touched ; unless,
however, there be a dread of its inflaming the
passion of either, in which case neither the
sight nor the touch is approved.
Or sit in private of travel together. —
THERE is no impropriety in a man sitting in
private with his female relation, or travelling
with her ; because the Prophet has said, *'No
woman sh-ill travel more than three days
and three nights, unless accompanied by her
husband, or her relation ; and if, in this case
tht woman should have occasion to mount
upon, or descend from a horse the man may
then, in assisting her, without blame, touch
her back or belly, if covered, and provided he
be sure of his passion, but otherwise he mrst
beware of touching her."
A man may look at the female slave of ano-
ther, in the same manner as at his kinswoman.
—EVERY part which it is lawful for a man to
look at in his female relation, may likewise be
viewed by him in the female slave of another,
whether she be an absolute slave, a Modab-
bira a Mokatiba, or an Am-Walid ; for as a
slave is necessitated to wear clothes adapted
to servile employments, that she may dis-
charge the business of her master, and attend
upon hit* guests, her condition without the !
house is therefore the same, in relation to
stranger, as that of a free woman without
the house, in regard to her kinsman. — With
respect to privacy, or travelling with the fe-
male slave of another, many have said that it
is allowed, in the same manner as in the case
of a female relation. — Some however, declare i
it improper, as not being justified by nec?s- i
lity. Mohammed; in the Mabsxrt, has said
that the assisting of a female to ascend or ,
descend from a horse is approved, provided
it be in a case oc necessity.
And may also touch her with a view to ;
purchase — IT is permitted to a man to touch |
a female slave when he has an inclination to
buy her, notwithstanding he may be appre- ,
hensive of lust. It is so related in the i
abridgment ofKadooree; and Muhammad, i
in the Jama Sagheer, has given a similar j
absolute opinion in this case, without making
any exceptions as to the circumstance of lust. I
The two disciples, on the other hand, main- |
tam that although, on account of necessity, I
it be proper for a person to look at a slave
girl when he is about to purchase her, not-
withstanding it may be the means of in-
flaming his passion, still it is improper to
touch her when under the impulse of pas-
sion, or where there is a probability of its
being excited. In case of an exemption
from passion, however, they hold it allow-
able either to touch or look at her.
An adult female slave must be put in a
decent habit. — WHEN a female slave arrives
at maturity, it is improper to leave her in
drawers only : on the contrary, it is requi-
site that she have two clothes, in order that
her back and belly may be covered, as these,
with regard to her, may be considered as
privy parts It is moreover reported, from
M shammed, that when a female slave reaches
the age of puberty, she must not be exposed
in drawers only as that may occasion lust.
An eunuch or hermaphrodite is the same
as a man with respect to those lules. — A
KHASEE, or simple eunuch, is considered in
the same light with a man, whence anything
prohibited to a m?n is ao likewise to him, for
he possesses virility, and is not disabled from
copulation : and the same, also, of a Majboob
or complete eunuch ; for he is likewise capable
of friction, and has the posvei of passing
semen ; and so likewise of an hermaphrodite,
as he is merely a defective man.
A male slave must not view his mistress
but in the face or hands— IT is not lawful
for a male slave to view his mistress, except
in the face, or palm of the hands, in the
same manner as a strangers. Malik main-
tains that a slave is in the predicament of a
kinsman within the prohibited degrees (and
such also is the opinion of Shafci) ; because
his mistress is subject to his entering her
apartment frequently without intimation.
The arguments of our doctors are, that the
slave is a man neither related to her as a
kinsman nor husband ; that he is liable to
be influenced by a passion towards her, as
marriage may eventually he lawful between
them (that is, incase of his emancipation) ;
and that there is no necessity for his ap-
proaching her without leave, as the business
of a slav«s pioperly lies without the house.
A man may gratify his passion with his
female slave in whatever way he pleases.
— IT is lawful for a man to perform the act of
Azil* with his female slave without her con-
sent, whereas he cannot lawfully do so by his
wife unless with her permission. — The rea-
son of this is that the Prophet has forbidden
the act of Azil with a free woman without
her consent, but has permitted it to a master
in the case of his female slave. Besides,
carnal connexion is the right of a free woman
for the gratifying of her passion, and the
propagation of d ildren (whence it is that
a wife is at liberty to reject a husband who
is an fciinuch omnipotent ) ; whereas a slave
*For
,60
a definition of Azil, see Vol. I.
BOOK
ABOMINATIONS.
601
possesses no suflh right.— A man, therefore,
is not at liber% to injure the rijght of his
wife, whereas a master is absolute with
respect to his slave. If, also, a man should
marry the female slave of another, he must
not perform the act of Azil with her without
the consent of her master.
Section V.
Of Ititibra, of writing for the Purification
of Women.
A man must not have connexion with his
purchased female slave until one term of her
vourescs hav.e elapsed.— A MAN, when he pur-
chases a female slave, is not permitted cither
to enjoy her, or to touch, or kiss her, or look
at her pudenda, in lust, until after her Istibra,
or purification from her next ensuing courses;
for when the captives taken in the battle of
Autass were brought thence, the Prophet
ordained that no man should have carnal
connexion with pregnant women until after
their delivery, or with others untit after
one menstruation ; which evinces that the
abstinence so enjoined is incumbent 011 a
proprietor : and further, that the occurrence
of right of property and of possession is tJio
occasion of its being incumbent. The end
proposed in this regulation is, that it may
be ascertained whether conception has not
already taken place in the womb, in order
that tho issue may not be doubtful.
Btit <W*9 rule operates only on the plur-
cJtdtser, not on the seUer. — ABSTINENCE until
after purification is incumbent on tho buyer,
but not on the seller ; for the true reason of
its necessity is tho desire of copulation ; and
an the buyer i» presumed to possess this de-
sire, and not the seller, the observance of it
i« therefore enjoined him, and not the other.
If, moreover, desire be an internal operation
of the mind, the obligation of the Jaw in
this particular rests upon the argument of
such desire. Now the more power of com-
mitting the carnal act is an argument of
the desire for such act ; and as this power is
established only by property and possession
it follows that property and possession are
the occasions of this obligation of abstinence.
ThUlaw, therefore, extends to a right of
property, in all its different modes of being
acquired, such as by purchase, donation,
*A phraseology runs throughout this sec-
tion which renders the translation of it into
English particularly difficult, as the precise
meaning of the term Istibra cannot be ex-
pressed by any single word in our language.
— The best Arabio lexicons define Istibra to
signify " the purification of the womb." —
The term, however, must here be received
in a more involved sense ; for Istibra does
not, in fact, mean simply purification, but a
desire of, or (as rendered in the text) a wait,
ing for purification ; for which reason the
translator renders it purification, or absti-
nence, as best suits the context.
legacy, inheritance, covenants, &c., whence
it ifj that this abstinence is enjoined upon
a person, who bitys a female slave, either
from an infant, or a woman, or from a slave
licensed to trade, * or from a person who is
by law prohibited from having any carnal
connexion with her. In the same manner
also, this abstinence is incumbent where a
person buys a female slave who is a virgin ;
for the la-w proceeds according to the proof
of the cause which prompted it, and not
according to the proof of the propriety or
expediency, as these relate to what is in-
ternal and unknown.
In the purchase of a mvnstruous female
slave, the purchaser must wait for another
complete term. — Is1 a person purchase a
female slave during her menstruation, no
regard is paid to this menstruation with
respect to determining the abstinence/)- In
the samo manner, also no regard is paid to
a menstruation which occurs between the
time of taking possession and the time of
the right of property being established, by
purchase, or the like ;— and so likewise, re-
gard is not paid to the delivery of a female
slave between the establishment of a right
of property in her, and the act of taking
possession (contrary, however, to the opinion
of Aboo Yocsaf). The reason of this is, that
the occurrence of right of property and pos-
session is the cause of purification being re.
quired ; and the obligation of observing the
purification is an effect of property and pos-
session ; and the effect cannot take place be-
fore the occurrence of the cause. The same
rule holds with regard to such menstruous
purgations as may happen previous to the
procuring of sanction, in the case of an un-
authori/cd sale of a female slave, notwith-
standing the purchaser may be seised of her ;
—and so likewise, where the courses happen
after the seisin in the case of an illegal con*
tract of sale, and before the slave is pur-
chased by a valid contract ; for in none of
all these do tho present courses deter,
mine tho abstinence.
A person purchasing his partner's share in
a female slave must wai tuntil her next puri-
Jication. ABSTINENCE is requisite in the
case of a partnership female slave, where
one of two partners purchases the other's
share : for here the cause is complete, and
upon the completion of the cause the effect
takes place.
Other rules to be observed respecting female
slaves. — IF a person purchase a Magian
female slave, or receive her in donation, and
* The slave licensed to trade is, in this
case, supposed to have been prohibited from
cohabiting with the slave, as the goods he
sells or purchases are presumed to be the
property of another, namely, his master.
f Arab, Fee babul Istibra ; (literally) "Jn»
point of purification," meaning that puri-
fication requisite to determine the abstinence,
imposed on the purchaser of a fem.Me sluv
60*
ABOMINATIONS.
[VOL. IV.
she, after his taking possession of her, have
her courses, and then become a Muslima, —
or, if a person purchase a female slave, "and
make her a Mokatiba, and she, after his
taking possession of her, having voided her
courses, prove unable to discharge her ran-
som,— 'Such courses are sufficient to establish
the requisite purification, in either of these
cases, as having happened after the occur,
rence of the cause for waiting, namely, right
of property and possession.
IN cases where a female slave, having
eloped, returns to her master, — or, having
been taken away, or hired out, is restored, —
or, having been pawned, is redeemed, —
abstinence is not requisite, for the cause of
it (namely, the acquisition of property and
possession) does not exist in either instance.
Where the carnal act is unlawful, all
incentives to it are prohibited.— In every
case where abstinence is enjoined, and ear-
n»l connexion prohibited, all sorts of allure-
ments and dalliance, such as kissing and
hugging, are likewise prohibited, as these
lead to the commission of unlawful acts.
Add to this, the possibility of their being
committed on the property of another, as
may happen if the slave prove with child
and the seller lay claim to her. (It is
reported from Mohammed that dalliance
with a captive slave girl is lawful.)
Pregnant women are purified by delivery,
and immature females by the lapse of one
month.— THE purification of a pregnant fe-
male slave is established by her delivery, and
that of a girl in whom the menses have not
yet appeared) by the lapse of a month, that
space being, with respect to such an one, a
substitute for the courses, in the same man-
ner as holds in the case of a woman under
Edit.* If, however, the menstrual blood
should discharge itself before the expiration
of the month, the purification by lapse of
time is annulled, because of the ability with
respect to the original circumstance, prior
to accomplishing the object of the substi-
tute.
Rule respecting adult females not subject
to the courses. — IF the courses be delayed in
a female slave who is of age to be subject to
them, it is in that case requisite to refrain
from any carnal connexion with her, until
it appear that she is not pregnant, when it
becomes lawful to cohabit with her. (1 his
opinion is quoted from Haneefa, in the Zahir
Rawayet, without specifying any particular
term.)
Devices used to elude the abstinence re-
quired. — IT is allowable, according to Aboo
Yoosaf, to elude the abstinence by the prac-
tice of a device ; in opposition to the opinion
of Mohammed. The arguments of each on
*8ee Edit, Vol. I., p. 128.— There seems
here to be a small mistake in the text, as the
Edit of a female slave not .subject to the
courses is determined by the lapse of a month
and an half.
this point have been already detailed under
the head of Shaflfa. — The opinion of Aboo
Yoosaf has been adopted by Kazees in their
decisions, where it has appeared that the
seller had not cohabited with the slave from
the period of her courses antecedent to the
sale ; — -and, according to the opinion of Mo-
hammed, when the contrary has been proved.
The device which may be practised in a case
where the purchaser is not married to a
free woman,* is that ho may first marry the
slave, and then purchase her. — If, on the
contrary, he be already married to a free
wojnan, the device in that case is that the
seller, previous to the sale, or the purchaser,
before taking possession, give the slave in
marriage to another person (who must, how-
ever, be one in whom they can confide, tha/t he
will not cohabit with her, and that he will
divorce her), and then, that the party pur-
chase the slave, in the, former instance, or
take possession of her, in tho latter, — and
the husband divorce her : — because as the
purchaser was at any rate prohibited from
cohabiting with the slave at the time when
the cause of the abstinence first operated
(that is, when he first acquired property and
possession), no abstinence is therefore re-
quired after she did become lawful to him,
as regard is paid to the time and circum-
stances under which tho cause takes place ; —
in the same mariner as where a person pur-
chases and takes possession of a slave who is
in her Edit, — in which case, upon the expi-
ration ojF the term of Edit, abst/jjcnce is
no longer required, sincv in this Oa8e the
slave was nor lawful to the purchase^ at the
time of the cause taking place.
A person pro mo unci'ng Zihar rnitttt nitirelu
abstain from his wife until he have made
expiation. — It is not lawful for a person who
has given abusive language to his wife,J
either to look at her pudenda in lust, or to
cohabit \*ith her, or to kiss or touch her
until such time as ho havo performed expi-
tion ; because, as it is unlawful for him to
copulate with her until after expiation, jt is,
consequently, unlawful thai he enter into*
dalliances with her, since tho caufie of an
illegal act is likewise illegal ; — in the same
manner as holds in cases of Yttjkar§ and
* This condition is here made, because it
is not lawful for a Mussulman to marry a
slave if he should be previously marrjed to
a free woman. (See Vol. [, p. 31.)
f It is here understood that marriage
exempts from abstinence.
{Literally, " it is not lawful for a Moza-
hir," — meaning a person who has, pronounced
a sentence fo Zihar upon his wife. (This
whole passage will be better understood by
a reference to a Zihar. Vol. I., p. 117.)
§Yttikaf is a religious austerity prac-
tised by the most pious of the Mussulmans
in the last ten days of the month of Ram-
zan ; they remain during that period in a
mosque, without ever departing from it but
BOOK XLIV]
ABOMINATIONS
608
Ihram ;* or where a person, by mistake,
cohabits with the wife of another,' — in which
case she must observe an Edit ; during
which, as it is unlawful for the husband to
have connexion with his wife, so it is like-
wise unlawful for him to use any of its
incentives with her. It is otherwise during
the courses or fasting, for, although copula-
tion be at such time prohibited, yet dalliance
is lawful, because the courses are frequent
and of long continuance, engrossing a great
part of life, as they happen once every
month, and cotinue ten days every time ; —
and, in the same manner, the days of fasting
arc protracted to one month by the divine
ordinances, and (among pious persons) volun-
tarily occupy a considerable part of life ; —
whence if dalliances were forbidden during
those terms, it would tend to restrain men
too much in their enjoyments.
A person indulging in ica-ntonness with
two female slaves who are sinters, must put
one of them away before he can have con-
nexion with the other. — [F a person, incited
by passion, should kiss two female slaves
who are sisters, he is not in that case per-
mitted to have carnal connexion with either
of them, or to kiss, touch, or look at the
pudenda of either in lust, until he render one
of them unlawful to bhn, either by making
her the property of another, in whatever
manner ho may choose, or by giving her to
another in marriage, or by emancipating
her ; because it is not lawful either to copu-
late or to enter into dalliance (such as kiss-
ing and hugging) with two sisters. But
whenever one of them is rendered unlawful,
the enjoyment of the other is permitted to
kirn. — (The transfer of a part of the slave
.n this instance, is the same as a transfer of
Jhe whole, with respect to the illegality of
enjoyment ; f and so likewise the emanci-
Datjng her, or rendering her a Mokatiba in
Dart') *f» on tne contrary, he let one of
them to nire» or pawn her, or create her a
Moda^kira, the other is not thereby made
lawfu1 to nim» as he does not by any of
these acts relinquish his property in her.
If als°» ne should give one of them in mar-
riage t° any person by an invalid contract,
he does not thereby acquire a right to enjoy
the other; unless, however, the husband of
that one consummate the marriage, in which
when the calls of nature absolutely force
them, abstracting themselves at the same
time from all enjoyments.
* Ihram is the the period during which
pilgrims remain at Mecca.— They arc then
subject to a number of strict regulations,
and are particularly enjoined to refrafc
from all worldly pleasures.
t That is to* say, he will as completely
render one of the sisters illegal (or forbidden)
to him (and consequently legalize his con-
nexion with the other) by selling or other-
wise transferring his property in a part of
Ijer, as by transferring her in toto.
case an Edit is incumbent upon her, and
this in the same as a valid marriage, with
regtlrd to rendering the enjoyment of her
illegal. If, also, he once carnally enjoy one
of them, he may afterwards continue to do
so ;— but he cannot then lawfully have con-
nexion with the other ; for if so, it would be
a connexion with two sisters, which is un.
lawful : but this consequence is not induced
by connexion with one of them.
ANY two women who are related to each
other in a degree that prevents their being
lawfully married to the same person, are
considered as sisters, and are consequently
subject to the rules exhibited in the pre-
ceding case.
Men must not kiss or embrace each other.
— IT is abominable for one man to kiss
another either in the face or hand, or on any
other part ; as it is likewise for two men to
embrace each other. Tahavee reports that
this is the opinion of Haneefa and Moham-
med ; but that Aboo Yoosaf holds it not im-
proper for a man either to kiss or embrace
another; because it is related that when
Jaffer came from Abyssinia the Prophet
embraced him and kissed him between the
eyes. The argument advanced by Haneefa
and Mohammed is a tradition that the
Prophet prohibited both kissing and embrac-
ing ; and with respect to the circumstance
adduced by Aboo Yoosaf, it must be con-
strued as having happened prior to the pro-
hibition. The learned, however, have said
that this disagreement between our doctors
concerning the act of embracing, respects
only a case where men are not properly
dressed, as where, for instance, they are in
drawers only ; but that those acts are allow-
able, in the opinion of all our doctors, when
the parties are clothed with an tinder and
upper garment. — This is the most approved
doctrine.
But they may join hands. — THE joining
hands by way of salutation is allowable ; for
the Prophet has said, "Whosoever joins his
hand to that of his brother MTTSSTT MAN,
and shakes it, shall be forgiven of his sins"
Section VI.
OS the Rules to be observed in Sale
Dung way be sold; but not human
went. — THREE is no impropriety in the sale
of dung ; but it is abominable to sell human
excrement. Shafei maintains that the sale
of dung is likewise abominable, because of
its being actually filthy ; in the same manner
as excrement, or the undressed skin of a dead
animal. — The argument of the Haneefites
upon this point is, that dung is capable of
yielding profit, as it is commonly strewed
upon land, in order to render it more fertile;
and as it thus yields a profit, it is therefore is
a valuable property, the sale of which is
lawful.
Unless mixed with mud — IT is otherwise
with respect to excrement, as that is incapa-
ble of profit, unless it be mixed with
601
ABOMINATIONS
[Vol.. IV
when the sale of it becomes lawful,* accord-
ing to what is reported from Mohammed ;
which is approved. * t
A person may purchase and have connexion
with a female slave on the faith of the seller's
assertion respecting her. — IF a person see
another selling a female slave, he at the
same time knowing; her to be the property of
some other person, and he bo informed by
the seller that "he has been empowered by
that other to dispose of her," it is in that
case lawful for him to purchase her, and
have carnal connexion with her ; and
the word of one man, although he be not
tfpright,f may bo received in temporal
matters, provided there by no opponent to
shake the credit of his testimony. — The
same rule also holds if the seller allege that
he had received her in donation from the
other, or that he had bought her from Mm ;
with this difference, however, that he is
here required to be of an upright and trust-
worthy character ; — and so likewise if he be
not trustworthy, provided the purchaser
believe that ho speaks truth ; but if he dis-
believe him, it is not lawful for him to pur-
chase the slave. The law is the same, if the
purchaser, not having previously known the
female slave, be informed by the seller, that
**she is the property of another who has
empowered him to sell her," — or that "he
has purchased. her from such a person." — If,
on the other hand, knowing her to have been
in the possession of another he do not
receive any information from the seller, he
cannot in that case lawfully purchase her
until he know by what means the seller has
acquired a property in her ; for her having
been in the possession of another is on argu-
ment of her being the property of another,
If, on the contrary, he should* not know her
to have been before the property of another,
he may then lawfully purchase her, notwith-
standing the seller bear a bad character ;
because possession, even with an unjust
man, argues ^property ; and suspicion, or
probable conjecture lose all force in any
case where a legal argument can be urged.
Where it is evident, however ; that a person
of such appearance as the seller is not likely
to be the proprietor of her, it is most prudent
on that account to avoid buying her. Never-
theless, if the purchase be made — there are
hopes of its being lawful, because of its
being supported by a legal argument.
But if the seller be a slave, precaution
must be used. — IF the person who offers the
female slave to sale be a slave, male or
fftmale, in that case the other must neither
accept nor purchase her until he enquire
into the circumstances ; becunse as property
cannot be a proprietor, it is evident that
some other is the proprietor of her. If,
* Because in this case the mud or manure
is the article sold, the ordure being merely a
dependant.
•j- Arab. Adil, in opposition to Fasik.
however, the seller inform him that "his
master had licensed him to sell her,'* hiti
word may in that case be taken, provided he
bo upright and trustworthy; but if he bo
otherwise, the purchaser must be guided by
probable opinion ; and ii ho have not the
means of forming any opinion of him,
whether good or bad, he must not in that
case purchase her, or admit his allegation
concerning her.
A woman may marry (after observing her
Edit] on receiving autlientif information of
her widowhood or divorce. — IF a person of an
upright and trusty character inform a woman
that her husband who was absent had died,
or that he had divorced her thrice,- — or, if a
person of a reprobate character deliver her
a letter from her husband, wherein he
acquaints her of his having divorced her,
and she, not knowing for certain that the
letter was written by her husband ; should
however be led to think so, — in either of
these cases she may lawfully observe her
Edit, and then marry ; — because in this
instance a circumstance destructive of the
former marriage has occurred without any
person appearing to contradict it. In the
same manner, also, if a woman inform a
man that her husband had divorced her, and
that the stated period of her forbearance
had elapsed, the man may lawfully marry
her. If also, a woman inform her former
husband who had divorced her thrice, that
"after the lapse of her Edit she had married
another, with whom she had cohabited, and
that having divorced her she had again
completed her Edit from that divorce," the
first husband may in that case lawfully
marry her again. The law is also the same
where a woman informs a person that,
having been a slave she had received her
freedom.
Information tend fay to annul a marriage,
must not be credited unless supported by
testimony. — DP a person infoim a woman that
her marriage had been originally unlawful,
inasmuch as her husband was at that time an
apostate, or her foster-brother, his word is
not in that case to be credited, unless cor-
firmed by the evidence of two men, or of one
man and two women. So likewise, if a per-
son inform another that his wife had been an
apostate at the time of Carriage, or that she
is his foster-sister, he is not in that case
permitted either to marry the sister of that
woman, or to marry other four women, until
the information so given be fortified by the
attestation of two upright men. For here
the husband is informed of an illegal cir-
cumstance co-existent with the marriage ;
whereas his execution of the contract of
•arriago is an argument in favour of its
validity, and a denial of its illegality ; and
hence the information of the other is appa-
rently, contradicted. The case is otherwise,
however, if a person, having married a child,
should be informed that she had afterwards
sucked the milk of his mother or sister ; for
the information so given is to be
BOOK
ABOMINATIONS
605
since here the bar to the marriage is sub-
sequent to, and not co-existent with, the
contract ; and the execution of the contract,
being antecedent to the circumstance of its
illegality, does not therefore afford any proof
of its non-existence ; whence the informa-
tion is not controverted.
A man is not at liberty to marry a female
slave on tor informing him that she is free,
— IF a girl, 90 young as to be unable to give
any account of herself, being in the posses-
sion of a man who asserts her to be his pro-
perty, should be afterwards when she
arrives at the age of maturity, mot in
another city by a man who formerly knew
her, and tell him that "she is a free
woman," he is not, on the strength of her
word, permitted to marry her, as there is an
argument against the truth of it, namely,
her having been in the possession of another.
A Mussulman is not allowed to pay his
debts by the sale of wine ; but a Christian
may pay his debts in this manner. — Tp a
Mussulman, involved in debt, should sell
wine, it is abominable in his creditor to
receive payment in the money so obtained ;
whereas, if the debtor were a Christian, it
would be allowable so to do. The reason of
this distinction is, that in the former in-
stance the sale was invalid, as wine is not
valuable to Mussulmans, and the price of it
being therefore the property of the pur-
chaser, cannot be lawfully received in pay-
ment. In the latter instance, on the con-
trary, the sale was lawful, wine being a
valuable commodity amongst Christians ;
and as, consequently the price of it is the
property of the seller, the discharge of a
debt from such price is lawful.
It is abominable to monopolize the neces-
saries of life ; or to forestall the market. —
TT is abominable to monopolize* the neces-
saries of life, and food for cattle, in a city
where such monopoly is likely to prove
detrimental. 80 likewise is it abominable
to forestall f as where people leave a city to
meet a caravan with a view to purchase
goods and lay them up. This however, ig
immaterial, when it tends not to the injury
of any one. The argument, in this case, is a
tradition of the Prophet, who said, "Bleassed
is the JALIB, and accursed is the mono-
polizer," (By Jahb is to bo understood a
merchant who brings camels, goats, and so
forth, for sale.) Another argument is, that
grain is connected with the rights of every
one, whence the withholding it from sale i's
an invasion of the general rights of mankind,
and an occasion of scarcity in their necessary
food. Such an act is therefore abominable
* Arab, Ihtikar. It is explained in the
text to signify, in its literal sense, the laying
up of anything ; and in the language of the
LAW, the purchasing of grain, or other ne-
cessaries of life, and keeping them up with a
view to enhance the price.
where the effects of it arc extended to the
people ; as is the case when the monoply is
mtade in a small city, tt is otherwise, how-
ever, where it carries not along with it any
sensible detriment to the people, as where it
is done in a large city. Thclaw is similar
in the case of forestalling. The learned,
however, remark that this is where the pur-
chasers neither conceal from the merchants
the price current of the market, nor deceive
them in it ; for if they either conceal or
deceive them in the established prices, the
anticipation of the market is in such case
abominable, whether it be hurtful in its
consequences or otherwise. The restriction
of the term Ihtikar, or monopoly, to the
necessaries of life and the food of animals is
according to Haneefa. Aboo Yoosaf has aaid
that the hoarding of anything, the deten-
tion of which from circulation produces bad
consequences, although it be such articles as
gold, silver, or cloth, comes equally within
the definition of a monopoly. It is reported
from Mohamxred, on the contrary that the
withholding of cloth from the market does
not constitute a monopoly. It therefore
appears that, according to Aboo Yoosaf,
regard is paid to the actual detriment in
determining the monopoly, as that is the
cause of its being abominated ; whereas,
according to Haneefa, regard is paid to the
particular detriment. Decrees pass accord-
ing to the latter opinion. It is to be observed
that, if the period of detention be short, it is
not a monopoly, as not being then attended
with any detriment. If, on the contrary
the period be long, it becomes an abomin-
able monopoly, as it then induces detriment.
Some have said that by a long period is to
be understood at least forty days, because of
a saying of the Prophet, "Verily, whosoever
hoards victuals for the space of forty days
is at variance with GOD, and GOD is at
variance with him." Others have said that
a month is a long space, and that nny time
less is a short space, and that the degree of
guil't rises in proportion to the necessities of
the people, and the effect of the monopoly in
producing a famine. Others, again, have
said, that although there be a fixed period
for rendering it punishable in this world
still it is criminal, however short the period
may bo. In short, it is not good to trade* in
grain, or commodities of that nature.
But a person may monopolize the product
of his oun grounds, or what he brings from
a distant place. — IF a person should hoard a
quantity of grain, being the product of his
own cultivation, or which he had brought
from another city,— in either of these cases
it is not deemed an abominable monopoly:.
* By trading is not here to be understood
simple purchase and sale, but the usual
practice of merchants in keeping up their
commodities, and watching the turns of the
market, in order to sell to the greatest
advantage.
606
ABOMINATIONS
[VoL. IV
it is not so in the first case, because such
product being an unmixed right of his own,
without any relation to that of other peopje,
he is therefore permitted to hoard it up ; and
in the same manner as it is lawful ior him
not to cultivate the sfecd, so is it lawful for
him not to sell the product: — nor is it so in
•the se-cond case, according to the opinion of
Haneefa, the reason in stipport of which is,
that the rights of the people extend only to
what is collected in the city, or what is
brought thither from its dependancies, Aboo
Yoosaf, on the contrary, deems this practice
abominable, because the tradition recorded
on this head is absolute. Mohammed, also,
has said that every plaro from which grain
ia frequently brought to a particular city
may be deemed a dependancy of it ; and that
a monopoly of whatever may be brought
from such" pla'ce is forbidden, as the rights
of the people are connected with it. It is
otherwise, however, where goods are brought
from a distant place, such as it is not cus-
tomary to bring them from ; since in that
case the rights of the convmnnity are not
concerned.
Sovereigns must not fix prices. — IT is not
the duty of sovereigns to establish fixed
prices to be paid by the community ; because
the Pro'phet has forbidden this, saying,
"Establish not prices, as those aTe regu-
lated by Con." Besides, the price is the
right of the merchant, and the measure of it
is therefore left to him ; and sovereigns are
not entitled to invade any such right.
Except in cases of necessity. — EXCEPT
where the welfare of the comnninity is con-
cerned, as shall presently bo made appear.
A monopolizer, upon information, must be
required to sell his superfluous provisions. —
IF a person guilty of a monopoly be brought
before the Kazee, he must direct him to sell
whatever he may have laid up more than is
am'ply sufficient for the subsistence of him-
self and family, and must prohibit him from
the like practice in future; — and if, after
this, he should again monopolize, the Kazee
may then chastise him at his own discretion.
A combination to raise the price of pro-
visions mu*t bfl remedied by the magistrate
fixing a. rat?* — IF victuallers, taking ad-
Vantage of the necessity of the people, raise
the market to an exorbitant rate, und the
Kazee be otherwise unable to maintain the
rights of the people ; he may in that case
regulate the prices, with the assistance of
men of ability and discernment. — Not with-
standing if this, however, they should ron-
tinue to sell their grain at a ?*ato exceeding
the fixed standard, the. Kazoo must confirm
the sale, nor has he the power of annulling
it. This, according to Ftancefa, is evident ;
for h© holds it unlawful to inhibit a freeman
in this respect — and so likewise, according
to the two disciples, unless the inhibition
affect only some particular people, since
(agreeably to their tenets/) inhibition is not
allowed where it is indefinite.
Is it lawful for a Kazee to sell the grain
of a monopolizer without his consent ? —
Some say that upon this point th'ere is a
diversity of opinion, in the same manner as
in the case of selling the effects of a debtor ;
— whilst others maintain that it is lawful
in the opinion of all our doctors, because
Hanoefa holds it just to inhibit a freeman,
with a view to removing a common evil, as
is the case in the present instance.
Arms must not be sold to seditious persons
— IT is abominable to sell arms in the time
of sedition to a person who*m the seller
known to be a rebel, as this is a cause of
evil. If, however, the seller should not
know the purchaser to be engaged in the
rebellion, he may then without blame sell
iirms to him.
The crude juice of fruit may be sold for
the purpose of making wine. — THEJRE is no
impropriety in selling the juice of dates or
grapes to a person whom the seller may
know intends making wine of it for the
evil does not exist in the juice, but in the
liquor, after it has been essentially changed.
The case is different with respect to selling
arms at a time of tumult, since in that in-
stance the evil is established, and exists in
the original thing, arms being the instru .
ments of sedition and rebellion.
A house ma-y be let to hire anywhere out
of a city for the purpose of a pagoda or ft
church. — IF a person let a house to hire in a
village, or in the neighbourhood of a city, in
order that the lessee may convert it into a
pagoda, or a Christian church, or that he
may sell wine in it, it is immaterial, ac-
eor'ding to Haneefa. The two disciples hold
such lease to be improper, as tending to
promote sin. The arguments adduced by
Ifaneefa are, that the compact is formed
with a view to obtain profit from the house,
which becomes due immediately upon the
delivery ; that the guilt exists only in the
act of the lessee : and that, as he is a free
agent, no crime of his can therefore be re-
fleeted upon the lessor. The reason of re-
stricting the place, in this instance, to a
village, or the neighbourhood of a city, is
because it is illegal to let out a house in a
city for any of the above-mentioned purposes
as there the light of the Mussulman religion
is supposed to blaze, which is not always
the case in other places. The learned, how-
ever, have said, that this refers only to the
neighbourhood of Koofa, because many
infidels reside there : but that in any other
place where the Mussulman religion prevails
it is unlawful. This latter opinion is the
most authentic.
A Mussulman may carry wine for an
infidel, and receive wages for so doing.— Iv
an infidel hire a Mussulman to carry wine for
him, and afterwards pay him for his labour,
the money so obtained is lawful to the
Mussulman. The two disciples have said
that it is abominable, as being the instru-
ment of sin, and likewise because the
Prophet (according to the Rawayet Saheeh
has denounced curses upon ten several
BOOK XLIV]
ABOMINATIONS
people who are concerned in wine, amongst
whom are they who carry it. Tho argument
of Haneefa is, that the sin lies only in the
drinking of it, which is the act of a free
agent ; that the carrying it is no ways allied
to the drinking of it ; and that the object
of the porter is not that another should
drink it, but only that he himself should
obtain the reward of his labour ; — and with
respect to the tradition above alluded to, it
refers only to a case where the wine is
carried with intent to promote sin.
Rules respecting the ground and houses of
Mecca. — THERR is no impropriety in the
sale of the walls of the houses at Mecca, but
it is abominable to sell the ground on which
they stand. This is the opinion of Kaneefa.
The two disciples have said that the ground
of Mecca may likewise bo sold ; and it is
also related that Haneefa accorded in this
opinion ; because in the same manner as the
houses are property, so likewise is the
ground. The real opinion of Haneefa, how-
ever, is that it is improper ; because the
Prophet has, said, " MECCA is sacred, and the
houses there can neither be sold nor in-
herited." Mecca, moreover, is sacred, as the
being a dependancy of the Kaba, and the
place where reverence is particularly shown
to it; whence it is not lawful cither to hunt
at Mecca, or to out the thorns or grass which
grow there (except when they have faded
and become parched) ; or to shake the leaves
oft* the trees growing there.
IT is abominable to let the ground at
Mecca, because the Prophet has said, "Who-
soever hires out the ground of MECCA is
guilty of usury ; whoever has use for the
ground at MECCA, lot him reside in it ; and
whoever possesses more than is sufficient for
his own purposes, lot him bestow it upon
others."
Implied usury is abominable. — IF a person
take from a merchant something he may
have occasion for, and leave with him a
certain number of dirms (for example) ho is
guilty of an abomination ; because, in thus
taking what he wants, ho derives an ad-
vantage from a loan (namely, the money ho
leaves with tho merchant ;) and the Prophet
has prohibited us from taking interest on
loans. He must therefore first deposit tho
dirms with the merchant, and then t«ko
from him whatever ho may want ; as tho
money is in this case a trust, and not a loan,
insomuch that the merchant is not subject
to pay a compensation in ease of tho loss of
it,
Section Vll.
Miscellaneous cases
The Koran ought to be written without
marks or points. — IT is abominable to dis-
tinguish tno sentences of the KORAN with
marks, or to insert in it tho points or short
vowels. Nevertheless the learned amongst
the moderns have said that these distinc-
tions are proper when made for the use of a
foreigner.
Jnfidels may enter the sacred motque. —
THERE is no impropriety in a Polytheist*
entering the sacred mosque.f Hhafei held
this to be abominable ; and Malik has said,
that it is improper for such to enter into an;-
mosque. — The argument of Shafei in sup
port of his opinion is, that GOD has said in
the KORAN. "ASSOCIATORS ARE IMPURE,
AND THKREFORE MtTST NOT BE PERMITTED
TO ENTER THK SACRED MOSQUE." Another
argument is, that an infidel is never free
from impurity, as he does not perform
ablution in such a manner as to work a
purification ; and an impure man is not
allowed to enter into a mosque. The same
arguments have been urged by Malik ; but
he extends them to any mosque. Tho argu-
ment of our doctors in this point is drawn
from a tradition that the Prophet lodged
several of the tribo of Sakeef. who were
infidels, in his own mosque. Besides, as
the impurity of an infidel lies in his un-
belief, he does not thereby defile a mosque*
With respect, moreover, to the text above
quoted, it merely alludes to infidels entering
a mosquo in a haughty and forcible manner,
and to a custom which was pra.cti.sed in the
days of ignorance of walking about the
mdsquc naked.
It is abominable to keep eunuchs — IT is
abominable for a Mussulman to keep eunuchs
in his service, as the employment of them is
a motive with men for reducing others to a
like state, a practice which is prescribed in
the sacred writings. J
It is allowed to castrate cattle.— IT is not
abominable to castrate cattle, or to make a
horse copulate with an ass, as these tend to
the bcneifit of mankind. Besides, it is re-
lated, in tho Nakl Saheeh, that the Prophet
rode upon a mule, which if such promiscu-
ous procreation of animals had been prohi-
bited, he would never have done, as thereby
a door would have been opened to sin.
A Jew or Christian, may be visited dur.
ing sickness. — THERE is no impropriety in
visiting a Jew or Christian during their
sickness, as this affords them a kind of con-
solation ; and tho LAW does not prohibit us
from thus consoling them. Nay, wo are told
in tho Nakl Saheeh, that the Prophet visited
Jew who lay sick in his neighbourhood.
Vain invocations in prayer not allowed. —
IT is abominable that a person, in offering
up prayers to GOD, should say, *'I beseech
thoe, by the glory of thy heavens!11 or "by
tho splendour of thy throne J" for a style of
* Arab. Moshirrak i. c. an associator,
including all who deny the unity of the
Godhead, and therefore applying to (trini-
tarian) Christians as well as to Idolaters.
t This is a mosque in Mecca, so called
because the Prophet most frequently offered
up prayers in it.
t That is, in the KORAN, which is termed,
by way of pre-eminence, the Sharra, or
LAW.
ABOMINATIONS
[VOL. JV
this nature would lead to suspect that the
Almighty derived glory from the heavens1 ;
whereas the heavens are created, but GOD,
with all His attributes, is eternal and immu-
table. It is, however, recorded by Aboo
JToosaf, that there is no impropriety in this
(an opinion which has been likewise adopted
by Aboo Lais), because it is related of the
Prophet that he offered up a similar prayer
to GOD. Our doctors, on the other hand,
have urged that this tradition is uncertain ;
and that to abstain from whatsoever is sus-
pected of being wrong is most prudent and
advisable.
IT is abominable to say, in a prayer, "I
beseech thee, 0 GOD, by the EIGHT of"
(any particular person), or "by the RIGHT
of" (any of the Prophets) ; because none of
his creatures is possessed of any right with
respect to the Creator.
Gaming is disallowed. — IT is an abomi-
nation to play at chess, dice, or any other
game ; for if anything bo staked it is gam-
bling* which is expressly prohibited in the
KORAN; or if, on the other hind, nothing
be hazarded, it is useless and vain, Besides
the Prophet has declared all the entertain-
ments of a Mussulman to be vain excepting
throe ; the breaking in of his horse ; the
drawing of his bow ; and the playing ami
amusing himself with his wives. Several
of the learned, however, deem the game of
chess to be allowed, as having a tendency to
quicken the understanding ; which opinoin
has also been ascribed to Shafei. — Our doc--
tors have founded their judgment in this
particular on a saying of the Prophet,
" Whosoever plays at chess or dice does as,
it were, plunge his hand into the blood of
<v hog.'* Moreover, plays of this nature are
apt to withheld men from the adoration and
worship of GOD at the set periods ; and the
Prophet has s«*id, " Whatsoever tends to re-
lax men in their duty to GOD is considered
in the same light with the practice of gam-
ing." It is also proper to remark, that if a
man play at chess for a stake it destroys the
integrity of his character, and renders him a
Fasik, or reprobate : but if he do not play at
it for a stake, the integrity of his character
is not affected. Aboo Yoosafand Moham-
med hold it abominable to salute any person
that is engaged in play : since, in thus re-
fraining, our abhorrence of gaming may be
expressed. Kaneefa, on the contrary, holds
to proper, as being the means of diverting
the parties from their game.
Presents (except of cloth or money) and
entertainments may be accepted from a mer-
cantile slave. — THERE is no impropriety in
a person receiving a present from a slave
who is a merchant ; or in accepting from him
an invitation to an entertainment ; or in
borrowing his carriage ; but it is abominable
to receive from h^m a persent either of cloth
or money. — What is here advanced proceed*
upon a favourable construction of the law.
Analogy would suggest that there is no dif-
ference ^ whatever between his invitations
and hjs presents consisting of cloth or
money ; — in other words, they are all equally
abominable in the acceptance, as being all
gratuitous acts, to which a slave is not com-
petent.— The reason, ho never, for «, more
favourable construction of the law, in this
particular, is that the Prophet accepted a
present from fcioliman when he was a slave,
and froto Bareera when she was a Mokatiba.
A number of the companions, also, accepted
an invitation jrom the freed man of Aboo
Russaid whilst he was yet a slave. There is,
moreover, a sort of necessity which operates
upon a mercantile slave, and obliges him to
give into these several customs. Thus, for
instance, if a person, having gone to his shop
with a view to purchase wares, and having
requested of him something to drink, should
be refused by him, in that case he would con-
sequently incur the imputation of covetous-
ness, few people would frequent his shop,
and his trade would theieb.v be ruined;
Besides, when a slave is permitted to trade,
he implicitly possesses all the power of a
merchant in its full extent But he is under
no necessity of clothing people, or of dis-
tributing money to them ; and hence it is
not allowed to him to perform such acts,
in conformity with what analogy suggests
upon this subject.
General rules with respect to hifftHl nrpltatut
or founding*. — IF a person bestow any-
thing in gift or alms upon an orphan* under
the protection of a particular person, it i«
lawful for that person to take possession of
such gift or alms on his behalf. — It is here
proper to remark, that acts in regard 1"
infant orphans sire of three descriptions. —
I. Acts of guardianship, such as contracting
an infant in marriage, or selling or buying
goods for him ; power which belong*
solely to the VValee, or iritural ^wmlian,
whom the L\\\ has constituted the infant's
substitute in those points. — II. Acts arising
from the wants of an infant ; such as buying
or selling for him on occasions of need; or
hiring a nurse for him, or the like; which
power belongs to the maintainer of the in-
fant, whether he be the brother, uncle, or
(in the case of founding) the Mooltakit,
or taker.up, or the mother, provided she be
maintainer of the infant ; and as these arc
empowered with respect to such acts, the
\Valee, or natural guardian, is also empow-
ered with respect to them in a still superior
degree ; — nor is it requisite, with respect
to the guardian, that the infant be in his
immediate protection. — Til. Acts which are
purely advantageous to the infant, such as
accepting presents or gifts, and keeping them
for him ; a power which may be exercised
either by a Moltakit, a brother, or an uncle,
and also by the infant himself, provided he
be possessed of discretion, the intention
being only to open a door to the infant's re-
* Arab,
(Bee Vol.,
Lakcet. Properly,
,, p. 200)
foundling.
BooKXLIV]
CULTIVATION OF WASTE LANDS
ceiving benefactions of an advantageous
nature. — The infant, therefore, is em-
powered in regard to those acts (provided
he be discreet), or any person under whose
protections he may happen to be.
It is notl awful for the Mooltakit [taker
up] of a founding to hire him out in ser
vice ; nor is it lawful for an uncle to do so
by his infant nephew, although he be under
his immediate care. It is otherwise with a
mother ; for she may lawfully let her infant
child to hire, provided she have immediate
charge of him ; because a mother is em-
powered to use the services of her infant
child by employing him, without tendering
him any return, — whereas a Mooltakit or an
unc*e has not this power. — If the child
should of himself enter into an engagement
of service, it is not valid, as there is a pos-
sibility of its tending to hia prejudice. —
Still, however, if after having hired himself
out he should fulfil his engagement, it is
then valid ; because in thus confirming it
his advantage only is consulted ; and he is
consequently entitled to the hire agreed for.
A master must not fix an iron collar on the
rtfpk of his slave. — IT is abominabo for a
person to fix an iron collar on the neck of
his slave in such a manner as to deprive
him of the power of moving his head, ac.
cording to the custom of tyrants ; because a
punishment of this nature is like the tor-
ments of the damned, and is consequently
unlawful, in the same manner as scorching
with fire.
But he may imprison him. — A MCSSUL-
MAU may imprison his slave ; for as a cus-
tom prevails amongst the Mussulmans of
confining people who are mad or seditious,
so in a similar manner it is lawful for a per-
son to confine a slave, that he may prevent
his absconding, and thus secure his pro-
fysters are allowed in cawse of necessity.
— IT is not abominable to apply a glyster in
a cause of need ; because medical practices
are approved, in the united opinion of all
our doctors, as well as by the traditions of
the Prophet. An application of this kind
is, moreover, equally proper, whether it be
administered to a man or woman. It is not
allowable, however, to have recourse to any
forbidden thing, such as wine, or the like ;
for it is unlawful to seek health by unlawful
means.
The allowances of a Kazee are to be de-
frayad from the public treasury. — IT is net
improper to defray the allowances of a
Kazee from the public trcsaury, because the
Prophet nominated Atab Bin Osaid Kazee of
Mecca, appointing him his allowance from
the public treasury there ; and he also no.
minated Alee to be Kazee of Yemn, appoint-
ing him his allowance from the treasury
there. — Besides, as a Kazee is, by the nature
of his office, confined to the business of
guarding the rights of Mussulmans, his
maintenance is therefore drawn from their
property (and the public treasury is the
property of the Mussulman community) ;
for a confinement to any particular office or
diftty entitles to maintenance ; as holds in
the case of an executor, or a Mozaribat
factor who travels, with the stock. — It is to
be observed, however, that the propriety o*
the Kazee receiving his allowance from th
public treasury is only where he takes it in
a satisfactory manner, without any condi-
tion ; for if he should refuse to undertake the
office, unless the sovereign allow him a cer-
tain salary, it is unlawful ; because he in
such case demands a reward for the dig.
charge of an act of piety ; for such the office
of a Kazee is ; nay, the exercise of jurisdic-
tion is the noblest species of devotion. — It
is also proper to remark, that if a Kaaee be
poor, it is most eligible, or rather incumbent
on him to receive his maintenance from the
public treasury ; for otherwise he would be
unable to support the dignity of his office
from a necessary attention towards the con«
corns of his subsistence. If, on the contrary,
he bo rich, some deem it most eligible that
he should not receive his allowance from the
public treasury ; whilst others maintain that
it is incumbent on him so to do. The latter
is the better opinion ; because otherwise the
office might be rendered low and contempt!,
ble ; arid also because, if an indigent person
should succeed a rich Kazee, it would then be
difficult for him to procure a salary, as that
had been, perhaps, for a long time relin*
quished.
Case of a Kazee dismissed after having
received his allowance. — IF a Kazee, having
possessed himself of one year's allowance,
should be dismissed from his office before the
expiration of that year, there is in this case
a disagreement amongst our doctors, in the
same manner as they have differed in opi-
nion where a wife dies in a similar predica.
ment.* The better opinion, however, IB that
he should restore the excess.
Female slaves may travel without being
attended by a kinsman. — THERE is no im-
propriety in a femple slave or an Am-Walid
travelling without being attended by a kins-
man ; because a stranger (as has been al-
ready explained) is considered the same as a
kinsman with respect to looking at or touch-
ing a female slave ; and an Am-Walid U
also a slave, as being property, although she
cannot be sold.
BOOK XLV.
OF THE CULTIVATION OF WASTE
Definition of Jfrtwi/.— MAWAT (which is
here rendered waste land) signifies any piece
•See Vol. I., p. 143.
t Arab. Ahya-al-Mawat, meaning, lfte.
'ally, tjie revival of the
CULTIVATION OF WASTE LANDS
[Vol. IV
Incapable of yielding advantage,
Cither from a want of water, an inunda-
tion, or anv o,ther cause, such as prevents
tillage; and it is termed Mawat, or dead,
because, like the dead, it is of no use.
And deaviriytion of tne land .w termed.—
AN.Y piece of ground which, from a long
time, has lain waste without belonging to
anv person. or wriicr> nas been formerly the
wroperty of a M.USS :il man. who is not then
known and is likewise go far removed from a
village that, if a person call out frfftn thence
nis voice cannot there be heard, is termed
Mawat. The compiler of the Hedaya re-
marks that this is the explanation of it as
delivered bv Kadooree. It is reported from
Mohammed that it is requisite the ground
be neither the property of a Mussulman nor
a Zimmee ; and likewise, that it be of no
n«e ; in which case it becomes absolutely
Mawat : but that around which is the pro-
pertv either of a Mussulman or a Zimraee is
nM Mawat — Tf the proprietor be unknown,
"tone ground in the mean time belongs to the
Mussulman community; — but if he nfter-
wardq appear, it must be restored to him,
and the cultivator is responsible for what-
ever damage he may have occasioned. —
With respeot to the ground being distant
from a village. ft.s mentioned by K-adooree,
Aboo Yooaaf is of opinion that this is a
condition, for this reason, that where the
ground is contiguous to a village it cannot
be said to be entirely useless to the inha-
bitants of it. Mohammed holds it sufficient
that the villagers do not in reality make use
of the ground, whether it be contiguous or
not. The same opinion has been delivered
bv the Imnm stvled Khahir Zada ; but Shims
al Avraa, the SiTucfcshian, has adopted the
opinion of Aboo Yoosif.
Tne cultivation of waste land* invp*t* the
eu'tivator with a property in thtpn. — WHO-
SOEVER cultivates waste lands, with the
permission of the chief, obtains a property
in them ; whereas, if a person cultivate
them without such permission, he does not
in that case become proprietor, according to
Haneefa. The two disciples maintain that,
in this case also, the cultivator becomes Pro-
prietor ; because of a saying of the Prophet,
"Whosoever cultivates waste lands does
thereby acquire the property of them." and
also because they are a sort of common goods
and become the property of the cultivator in
virtue of his being the first- possessor ; in the
same manner as in the case of seizing gome,
or gathering firewood. One argument of
Haneefa on this point is a saying of the Pro-
phet. "Nothing is lawful to any person but
what is permitted by the TMA-M V' — and with
respect to the saving quoted by the two dis-
ciples, it is to be construed merely into a
judicial permission 'for the Prophet was
himself an Imam/.— in the same manner as
where he said, *' Whoever kills an infidel is
entitled to his armour." — Besides, all waste
lands are plunder, seeing that the Mussul-
mans acquired the possession of them by
conquest ; nnd hence no person can assume
n property in them without the consent of
the Tmani — as holds in all cases of plunder.
TiMf only ?V due from land *o cultivated*
unless it be moi#tfncjjl with tribute wafer. —
IF a person cultivate wa^te land, a tithe only
is due from it. for it is unlawful to chago a
Mussulman w-'th tribute in the beginning •
but if the land be moistened with tribute
water, tribute may lawfully be imposed, an
it then becomes due on account of the water,
— TF, also, a person cultivate waste lands,
and afterwards relinquish them, and another
then cultivate them, some have said thflt the
second cultivator is best entitled to the pro-
perty ; for the first was owner of the profits
merely, and not of the land itself; and
therefore upon his relinquishing it, the
second obtains a superior claim. It is cer-
tain, however, that the first cultivator may
resume the lands from the second, because
he is proprietor of them in virtue of having
brought them to a state of cultivation (as
appears from the saying of the Prophet
quoted in the preceding case), and does not
forfeit his property bv the relinquishment.
In tli* culti tuition of the circumjacent
qrounds, a rr-ad must be left to it. — IF a
person cultivate a piece of waste land, and
four others afterwards so cultivate the cir-
cumjacent ground as to obstruct the passage
into his property, it is repoited, from Mo-
hammed, that his road is lead through
the ground of him who cultivated last ; for,
after three of the sides bordering upon his
property had been cultivated, the other of
consequence remains for his ingress and
egress; nnd therefore th*» ijerson who culti-
vates it wilfully aims 'it the destruction of
lii« ritfht.
.4 Zimmef acquire* a property in Mr land
fie. cultivate*, as well aft a Mussulman. — IK a
Zimmee cultivate waste lands, he becomes
proprietor of them, in the same manner as
a Mussulman ; because cultivation endows
with a rijr'it of property. (Haneefi, how-
ever, holds that the consent of the Imam is
requisite.; — A Zimmco and a Mussulm an,
therefore, are alike in this respect, in the
s.-irne manner as in nil other points of pro-
perty.
// thr land be not cv Hi rated for three
years after it is marked off, it may be trans-
ferred Ity the Imami. — IF a person circum.
scribe a piece of ground, and set marks upon
it with stones or such like, and keep it in
that state for the space of three jears with-
out cultivating it, tho Imam may in the
case lawfully resume it, and assign it to
another; because the ground was given to
the first with a view to his cultivating it, so
that a benefit might ensue to the Mussul-
mans from the collection of the tithe and
tribute ; and as he neglected this, it is there-
fore incumbent on the Imam to deliver it
over to another, that the end for which it
was given to the first may be answered. —
Moreover, tho encompassing of the ground
with stones, &c., does not, like cultivation,
BOOK XLIVJ
CULIVAT10N OF WASTE LANDS
611
create a right of property, sinoe by Culti-
vating the land is understood rendering it
productive, whereas the encompassing it
with stones sor,ve.s merely to designate the
boundaries : the land, therefore, still remains
unappropriated as before. — With respect to
the specification of three years, as here men-
tioned, it is founded on a saying of Omar,
"The marker has no right after tlnco years
have elapsed." — It also proceeds on this 'prin-
ciple, that throe periods of time are requisite
for a person who marks I 'in ds ; one, that he
may go to his pla^o of abode after haying
sot the marks ; another, th.Tt ho may there
settle his affairs ; and a third that he may
return to his land ; and each of these several
periods is determined at a year, as it is pro-
bable any less division of time, sufh as an
hour, a day, or a month, might not suffice to
answer the purpose. If, therefore, after the
elapse of three years the marker return not
to nis lands, it is presumed that he has relin-
quished them.— Lawyers remark that what
is here advanced proceeds upon a principle
of equity ; but that, in strictness of law, if
a person cultivate the lands which another
has marked before the elapse of the period
above mentioned he becomes the proprietor
of them, as in this case he is the Cultivator,
and not the other.
Manner of marking off waste J«wrf.— IT is
here proper to observe that wo-ste lands may
be marked by other modes beside setting
stones, such as by &nrrOnri<lii\g them with
the branches of trees ; by burning the under-
wood and thorns which may be growing upon
the lands; or by collecting them together
and scattering them, mixed with u little
earth, about the borders, without carrying
them so uniformly round as to form a con-
tinued boundary or, lastly , by digg;ng a
trench one or two yatds in width.
Cultivation is established by digging and
watering the ground.— If is related, as an
opinion of Mohammed, that if a person dig
up and water a piece of waste land, ho is
then the cultivator of it ; whereas, if he dig
it up or water it singly, he is only held to
have sot a mark upon it. — In tho same man-
ner, if he dig a trench or ditch without
watering the land, it is considered only as
marking ; whereas, if ho n?oistcn it with
water, after digging a trench, it is cultiva-
tion.
Unclosing it, or sowini it with seed. — 'If,
moreover, a person raise an enclosure round
the land so high as to bo a danv to tho water,
he is held to have cultivated it ; and so like.
wise if ho sow seed in it.
It mutt not be practised on the borders of
land already culivated. — IT is not permitted
to cultivate a piece of waste land imme-
diately bordering upon lands that are in a
flourishing state ; as it is requisite that a
space be loft for tho use of the cattle of the
other proprietor, and also for piling up his
stacks, whence such land does not come
under the description of waste any more
than a river or a highway;— and accord-
ingly, our doctors have said, that it is not
lawful for the Imam to bestow on 'a person
any article of indispensable use to th'e
Mussulmans, such as a saltjpit, or a well
from which the people draw water to drink.
A apace is appropriated to wells <ta</ »*
waste Imd*. — WHOEVER digs a well in was<H!
land is entitled to a space or piece of land*
round ifc. If, therefore, the well be dug for
the use of camels, a space of forty yards is
annexed to it. — This is related in the tradi-
tions. Several of our doctors have construed
the forty yards to moan the aggregate space.
The better opinion, however, is that forty
yards are annexed to each side of the well •
for as many lands are of a soft and humid
soil, it might happen that if another person
should dig a well at a less distance from the
first than forty yards, the water of the one
might oo?e through the earth and communi-
cate with the other. If the well be dug
with a view to drawing water from it by
means of camels or other animals,1)- in that
case the space of sixty yards i.s annexed,
according to the two disciples. H^neefa
holds that in this cnse likewise only forty
yards are allowed. — The arguments of the
disciples upon this point are twofold.—
FIRST, a saying of the Prophet, "The pre-
cincts of a fountain are five hundred yards,
of a well from which camels may drink forty,
and of a well from which water is draqrn
sixty yards.11 — SECONDLY, there is a neces-
sity that a considerable space be annexed to
a well of this nature, since the camels may
be required to be led to a distance from it, as
the rope by which the water is drawn up tB
often of long extent; but where wells are BO
made that the water may be taken out by
the hand, it is not necessary that any great
space bo allotted on this account ; and there-
fore a difference should ceitainly be made
between the two sorts of wells. Haneefa ar-
gues from the tradition before cited, in which
forty yards are mentioned, without distin-
guishing between the two species of wells.
The objection, moreover, started by the4 two
disciples may be obviated by making the
camels revolve round the well with the rope,
instead of driving them directly from it.
IF the well have a fountain in it, the space
annexed to it is five hundred yards ; be*
cause of the tradition before quoted ; and
also, because a large space is here absolutely
requisite ; for as the fountain is brought out
to witcr the ground, one space is required
thiOugh which the water may be conducted
from the fountain ; another for a reservoir
wherein the water may bo collected, and a
third for conveying the water from the reser-
voir to moisten the lands for oultivation.vA
considerable space is therefore required;
which is determined at five hundred yards*.
* Arab Hareem ; moaning, literally pro-
hibited to others.
t See note in Vol. II., p. 220%
612
Of WAStfe LANDS
IV
by the tradition ; and this, according to the
most authentic opinions, means five nundre^l
yards, on each side of the fountain ; the
yard measuring six spans. — (Some have said
that the annexation of five hundred yards
to a fountain is only in the country of
Arabia, where the soil is hard ; but that in
our country, where it is soft, a larger extent
is required as otherwise the water of one
fountain might transude through the earth
and communicate with that of another.)
Within the limits of which no other person
t« entitled to di'j. — IF a person atte.npt to
dig a well within the limits of the proprietor
of another well, in that case the other may
prohibit him ; because the limits of hin well
are his property (as has been explained), and
therefore none has a right to encroach upon
them. If, also, a person should actually dig
a well within the limits of nnother the first
proprietor has in that case the option either
of filling it up himself gratuitously, or of
forcing the other so to do. — Some have said
that in this case, the first proprietor is to
take a compensation for the damage from
the other, and then to fill up the well him-
self:— in the same manner as where a person
destroys a wall the property of anothor, in
which case he must make reparation to the
proprietor, who must rebuild it himself.
This is approved. It is related in Khasaf's
treatise upon the duties of a Kazee, that the
damage, in this instance, must be computed
by a comparison of the value the first well
bore before the other was dug, with what it
bears afterwards ; the difference showing the
loss sustained.
Or, if any do so, he is responsible for such
accidents as it miy oocasian. — THERE is no
responsibility for any thing which may hap-
pen to be destroyed by falling in to the first
of the two wells, as the proprietor, in dig-
ging it, was not guilty of any trespass. —
This is evident, in the opinion of Haneefa,
if he dug it with the consent of the Imam ;
and also in the opinion of the two disciples,
whether it was done with the consent of the
Im»m or not ; — according to Ilaneefa, be-
cause the digging of a well, in this instance,
was the same as the setting of marks, which
may be done without the consent of the
Imam, although the property cannot be
acquired without his permission. — If, on the
contrary, anything be destroved by falling
into the second well, it must be atoned for
as the proprietor of this well has been
guilty of a trespass in having dug upon the
property of another. If, on the other hand,
a person dig a well bordering on the pre-
cincts of another, without however encroach-
ing upon it, and the water of that other
should then decrease, he is not liable to
make any compensation, as he is not here
guilty of any transgression — In this last
ca*e, morover, the second digger is entitled
only to the ground on three sides of his
well, as the ground on the side of the first
well ia the property of the first digger.
4 *?o* " alto appropriated to a water
course. — WHOEVER digs a channel * for
conducting water to any place, has a space
annexed to it, according to his want. It is
related by Mohammed that an aqueduct is
the same as a well, so far as regards the
annexing of land to it. — Some say that this
is the doctrine of the two disciples ; but
that, according to Haneefa, no space is
allowed, ex-c<*pt when the water appears
above ground; for as an aqueduct is in fact
merely a rivulet, it is therefore subject to the
same rules. Several doctors have, however,
maintained that when an aqueduct appears
above ground, it is then considered in the
same light as a spring or fountain : and that
consequenty the same quantity of land is
annexed to it, name'y, five hundred yards.
Or to a tree planted in waste land. — IF a
person plant a tree in a waste spot of land,
he is entitled to a small spaces an appen-
dage to it : wherefore no other person is
allowed to plant tree on the ground within
his precincts, as this space is useful to him
for collecting his fruits, and heaping them
upon it. The space allotted to a tree is the
measure of five yards, agreeably to what
occurs in the traditions upon that subject.
T he deserted beds of rivers must be culti-
vated.-- LANDS through which the Euphrates;
the Tigris, or any similar river formerly ran;
must not be cultivated, if it be possible that
the river may again run over them ; as the
people whose lands lie adjacent to the river in
its former course have an interest in desiring
that the river may not bo prevented from
returning to it. If, however, the lands be
not likely to bo again overflowed, they are
then held to be waste, provided they do not
adjoin to any cultivated spot: — because such
lands are not the property of any one ; for
the superiority of water repels all other supe-
riority ; but as soon as the land appears abovo
the water it beomes subject to the Imam.
A space is not allowed to an aqueduct run-
ning through another's land without proof of
prior right. — WHO»E\EB has the property of
an aqueduct, which runs through land be-
longing, to another, is not (according to
Haneefa) entitled to any adjacent space,
unless he produce evidence to prove his
right. — The two disciples, on the contrary ;
maintain that ho is, in virtue of his pro-
perty in the aqueduct, entitled to the banks
on which people pass, and which the earth
thrown up by the excavation of it occupies.
Some have said that the difference of opinion
in this case is founded on that which obtains
where a person digs a canal in waste lands
by permission of the Imam ; for in this case,
according to Haneefa, he is not entitled to
any space ; whereas the two disciples main*
tain that he is so entitled, since he can
derive no advantage from the canal unless
he possess a space annexed to it, as he must
* Arab, Kanat, pers, Kareez. It is
generally understood to mean a subterra-
neous aqueduct or drain.
BOOK XLV.]
CULTIVATION OF WASTE LANDS.
613
often be bliged to walk along the banks of
it to clear away any inoumbrances that may
stop the course of the water, it being im-
practicable for a person, in the common
course of things, to walk in the middle of
it. — As, moreover, he is often necessitated
to dam it with earth and clay, and it is
impossible for him to bring these from any
distance without incurring an extraordinary
expense ; ho is therefore entitled to a spafcc
of ground, in the same manner as a person
who digs a well.— {The argument of Haneefa
is, that the claim to any space is repugnant
to analogy, the right to it being established,
in the case of a well, solely on the ground of
the precept before quoted. Besides, the ne-
cessity of a space, in the case of a well, is
more urgent than in the ca,se of a canal or
aqueduct; for, in the latter, the use of the
water may be enjoyed without any space,—
whereas, in the former, this is impossible, as
the water must be pulled up by a rope, to
effect which a space is requisite, as has been
before explained. Hence there is an obvious
difference between a well and a canal ; and
consequently they cnn bear no analogy to
each other. The reason for founding the
casein question on this is, that if the pro-
prietor of the aqueduct be entitled to a space
of land, he is held bo be seieed of the said
space as a dependency of the aqueduct ; and
the evidence of the possessor is valid in case
of a contest ; whereas if, on the contrary, he
be not entitled to any space, he is not held
to be seised of it, and circumstances there,
fore testify for the proprietor of the land ; as
shall shortly be explained— .If, however, the
case in question be considered separately,
and not as founded on the above, then the
two disciples argue that the space is in the
hands of tho proprietor of tho aqucdacet, as
he preserves the water by means of it, — •
whence it is that the 'proprietor of tho land
is not entitled to break it down. — Haneefa,
on the other hand, argues that the dependent
land resembles the other land, of the proprie-
tor, with respect both to appearance and sub-
stance : — with respect to appearance, because
it is on a level with, and joins to it ; and with
respect to substance also, because it is of the
same soil, and is equally capable of nourish-
ing trees and vegetables ; and circumstances
testify for him who is in possession of what
bears the greatest resemblance to the depen-
dent ground, namely, the land adjacent to
it ; — in the same manner as where two people
contend for a door-plank in the possession of
some other person, and which exactly quad-
rate* with another that is possessed by one
of the litigants ; for in that case the Razee
must abjudge such plank to be the property
of him who possesses the correspondent one,
—In reply to what the two disciples further
urge — it may be observed that the contest
here does not hinge upon what was placed
for the conservation 01 the water (the hanks),
but upon what is independent of it, and fit
for producing treat, &o. Besides supposing
that the proprietor of the aqueduct preserves
the water only on account of the dependent
spake of land, it may be answered that the
proprietor of the ground preserves it only on
account of the dependent space of land like,
wise. — With respect, moreover, to what they
urge, that "the proprietor of the land is not
entitled to breaJc down the banks of the
aqueduct," it is to be observed that this is
not because they are the property of the
proprietor of the aqueduct, but merely be-
cause he has an interest in them ; — in the
same manner as where a person is possessed
of a wall, and another, having the property
of a wall near it, lays beams across both
with tho assent, of the other ; for in such
case the other has not afterward^ the power
of pulling down his own wall, since he must
thereby injure the right of this person.
Differences of opinion concerning ague-
duct*.— It is related, in the Jama Sagheer,
that if a person possess an aqueduct having
banks on each side, and adjacent to them a
piece of land belonging to some other per-
son, and the banks be not in the hands of
any one, that is to say, be destitute of marks,
such as trees, stones, or the like, to deter-
mine the property, those banks belong to the
proprietor of the land, according to Haneefa-
—whereas the two disciples hold that they,
appertain to the proprietor of the river If
on the contrary, tho marker of any person be
left upon them, they are then unanimously.
of opinion that the marker has the better
claim,— Stil, however, they differ in opinion
where there is a tree upon the banks, and it
is not known who planted it ;— for Haneefa is
of opinion that to plant a tree is the right of
the proprietor of the grounds, whilst the two
disciples hold this to be the right of the pro-
prietor of the aqueduct.— With respect, also,
to throwing up earth, many have said that,
there is a disagreement ; whilst others have
said that this belongs to the proprietor of
the aqueduct, provided he do not exceed the
prescribed bounds. With regard to walking
upon the banks, some have said that it is not
permitted, in the opinion of Haneefa ; whilst
others have said that it is not prohibited,
because of there being a necessity for it.
The learned Aboo Jafir has said that he
would decree according to the opinion ol
Haneefa in the case of planting B tree, — and
according to that of the two disciples, in the
case of throwing up earth. It is reported,
from Aboo Yoosaf, that the width of the
dependent space of an aqueduct is half the
breadth of the aqueduct ; but according tc
Mohammed it is the whole breadth : and
this opinion is the most favourable to man*
kind. — It is here proper to onserve, that the
subject resolves itself into several sections,
treating of the cases of ghirba, or a right ;
to water, whether derived from the the posses
sion of land, or from other causes.
Section I.
0} Water*.
All people have a right to drink from a
well, canal, or re«ert*tr ,• and also eallt**-
CULTIVATION 0* WAStfe LANDS.
IV.
IF a person have the property of a canal, n
well, or a reservoir, he cannot prohibit cither
man or beast from drinking of it. — Here* it
is necessary to promise that water is of four
kinds. I. The water of the ocean, which
every person has a right to drink, or to
c»rry away for the purpose of moistening
his lands. — If, therefore, a person incline to
dig a canal, and convey the water in it from
the ocean to hi:-* linii.no person has power
bo prevent him from so doing ; for the enjoy-
ment of the water of t>he ocein is common to
every one, in the same manner as the light
of the sun or moon, or the use of the air. —
II. The w*ter of large rivers, such as the
Qxus, the Euphrates, or the Tigris, in which
every person has an absolute right to drink,
and also a conditional right to use it towards
moistening his lands; — that is to say, a per-
son, if he cultivate waste land, may dig n
channel for the purpose of conveying water
to it from the river, provided his doing so bo
not detrimental to the people • but if there
be a probability of its being hurtful in its
consequences (as if, by opening the banks,
the water should overflow the country and
villages around), in that case he is not per.
mitted to dig a channel for the watering of
his land, as the prevention of a public evil
is a consideration of greater moment. — Ana-
logous to this, also, is the erection of a mill
on the banks of a river ; for the demolition
of the banks by the mill is the svue as by
watering land. — III. Water in which several
have a share ; — and in which, likewise, the
right of drinking is allowed to every ono ;
for it is recorded in the traditions that three
things are common to all, namely, water ,
grass, and fire. Besides, wells, and the like,
are not dug for the purpose of preserving
water ; and hence the water of them is not
the property of anyone ; for it is common,
and as such cannot be made a particular
property until it be separately kept and
preserved ;— -IB holds with respect to a doer
that only sleeps upon a person's ground
There is, moreover, a necessity for estab-
lishing this common right with regard to
water, since it is impossible for every person
to carry it along with him ; and as a person
may be in want of it for himself and his
horse, mankind would therefore be too much
cramped if an unlimited use of it were not
granted them. If, however, a person incline
to bring water to moisten the land he had
cultivated from a river or canal which be-
longs to others, the proprietors may pre-
vent hhn, as otherwise their right of water-
ing* would be entirely destroyed. — IV,
Water which is preserved, or in other
word* kept in vessels. Water of this de-
scriptionis property, because of its deten-
tion ; and the right of others no longer ex-
tends to it;— in the same manner as holds
with respect to game, after being taken by
•Arab, Shirba, a particular right to water,
explained in the course of this book
any person. Nevertheless, it is doubtful
whether this water may not also be parti-
cipatcd, because of the tradition before
quoted. Hence, if a person, in a time of
scarcity, steal a quantity of water equiva-
lent to* the amount which constitutes theft,
he is not liable to amputation.
Unles* there be other water at a little dis-
tance.— IF a person be possessed of a well,
fountain, or rivulet, he may prevent any
one from drinking the water of them, or
encroaching on his property, provided there
be other water at a little distance, and
which is not the particular property of any
one. If, however, this be not the case, the
proprietor must then either bring him water
to drink, or permit him to take it himself,
on condition that he destroy not the banks.
What is here advanced is reported from
Tahavee, — Some have said that this is ap.
proved, in case the possessor of the well
have dug it himself in land which is his
own property : but that, if he should have
dug it in waste lands, he is not, in that case,
on any account permitted to prohibit others
from entering on his premises to drink
water ; for the waste lands are a common
right ; and as the well was dug towards the
promoting of a common right, namely, tithe
and tribute, it follows that the digging of it
is not destructive of the liberty of drinking,
If, therefores, the proprietor refuse the other
permission to drink, and that others be
apprehensive either of tho death of himself
or his horse from an excess of thirst, he may
then lawfully oppose the proprietor with
weapons, as he has already aimed at his
destruction in withholding his riftht, namely,
the water : for the water of a well is common,
and is not property. — It is otherwise with
resp-e/ct to water kept in vessels ; for a person
in want of it where it is so kept, is only
permitted to contend with the possessor of it
without weapons. The aame law obtains in
the case of a person oppressed with hunger.
Many have said that in the case of a wall it
is not lawful to use weapons ; but that it is
allowable to contend with a stick ; for the
possessor is guilty of an offence in refusing
the water ; and the application of a stick is
a substitute for correction.
Water may also le carried away for the
purpose of aohrtion. — IT is lawful for men to
carry away water from a rivulet to perform
their ablutions, or to wash their garments,—
This is approved ; because, to desire men to
purify themselves, o: to wash their garments
with such water, without carrying it away
as mentioned by some), would be attended
with much inconvenience,
Or for watering tree* or parterre*.— Ivt
also, a person be inclined to water the trees
or small parterre before his house, he may
lawfully carry away water for that purpose
from the rivulet of another; for the law
allows great liberty in tho case of water,
and considers the refusal of it as truly
opprobrious.— A person is not, however,
BOOK XLV.]
CULTIVATION OF WASTE LANDS.
615
allowed to carry away water either from the
rivulet, well; or aqueduct of another, for
the use of his orchard or fields, unless he be
expressly permitted so to do ; and the pro-
prietor may prohibit him from it ; because
when water is possessed in joint property,
none but the proprietors have any right to
the use of it, as otherwise their right would
be defeated — Still, however, the proprietor
of the river may, if he coose, either give
or land, the water of it to another, because
it is his property ; and because the gift of
such is customary ; in the same manner as
holds with respect to water preserved in
vessels.
Section //.
Of digging or clearing Rivera.*
River are of three descriptions, — Hi VERS
are of three kinds.— T. Such as are not the
property of any ; and of which the waters
have not boon* divided, like the Tigris,
Euphrates. &c. — IT. Such as, being appro-
priated and divided, are at the same (time
public rivers, in which boats sail. — [II.
Rivers that are held in property, and divi-
ded; and are also private, in which no bouts
sail.
Qreat public rivers must be cleared and
repaired at the expense of th? public irea-
s<ury.-—lw the first kind of rivers, if the
river fill up so as to require digging, the
care thereof devolves upon the chief, fwho
is to defray the charges of it from the
public treasury ; for as the work is per-
formed for the advantage of the Mussulman
co*nnitinitjv, the expense attending it must
be defrayed from the property of the com-
munity ; — those expenses must, however, be
disbursed from the funds of tribute and
capitation-tax, and not from those of tithe
and alms ; for the latter are appropriated
solely to the use of the poor, whereas the
former are intended as a provision to answer
contingencies.
Or by a neneral contribution of labour. —
IF there be not any money in the public
treasury, the chief is in that cose at liberty ;
with a view to promote the public utility,
to compel the people to repair the damage in
question, as it is presumed they would not
of themselves apply to the work, — whence
it was that Omar Farook said to the people,
*'\Vero I to leave you to your own direction,
without ever using compulsion, verily,
matters would come to such a pass that you
would oven soil your children," — None,
however, must bo compelled but such as are
able to work : and such as are not able to
*Arab. Nihr. — It is a term of very general
application, signifying not only rivers pro-
perly so called, but also canals, or any other
species of aqueduct constructed by art.
t Arab. Walee ; meaning, generally, the
goyernor of a province or
work* and are rich, must pay a certain sum,
according to their particular station and
ability.
And appropriated rivers, at the expense of
\he proprietors. — WITH respect to the second
kind of river, it must be cleared, whei
requisits, at the expense of the proprietors,
without any supply from the public trea-
sury ; for the right of the river particularly
belongs to them, as does also the use of it.—
If, therefore, any one of them should refuse
to assist in digging, the ch^ef may compel
him, to the end that the others may not
suffer any injury by his refusal.
OBJECTION-— It would appear that, in
being thus forced to work, the refuser suffers
an injury.
.— Such injury is particular, and in
not without its use, for in recompense thereof
the party obtains his share of the water ; it
is not, therefore, to be put in competition
with the common injury that would other-
wise be suffered by the rest.
If, fllso, some of the proprietors of the
river be desirous of strengthening the banks,
from nn apprehension that they might give
way, r.nd it be probable that bad conse-
quences may ensue from t\ e\r decay (such as
inundating the neighbouring country, and
breaking up the roads), the chief may in
that case use compulsion with any of them
who refuse to assist in the Undertaking. He
must not, however, use force where the
decay of the banks cannot produce any bad
consequence ; for the fall of the banks is an
event merely probable. It is otherwise with
respect to clearing a river in a case of
necessity ; for that is a matter of certainty,
— whence it is that compulsion may be used
to effect it.-— With respect to the third kind
of rivers they ure particularly
and therefore the digging of them is entirely
the duty of the proprietors. — Some have
alleged that the magistrate may employ
force with any who refuse to dig ; in the
same manner as in the case of the second
kind of rivulets. Others, again, have main*
tained thj»t the magistrate has not a power
of this kind; since both of the injuries,
namely, that of the partner on whom com-
pulsion is used, and also that which the
other partners sustain in consequence of his
refusal, are private ; and the injury to the
other partneis may be remedied by their
taking from the one who refuses to work a
part of the expense incurred in digging the
rivulet, proportionately to his share (^pro-
vided, however, that the work be executed
at the instance of the magistrate). — It is
otherwise with respect to the second kind
of rivers, as there one of the injuries is
public.
OBJECTION. — Here likewise is a conjunction
of two injuries and as one of these (namely,
that sustained by those who have a right to
drink the water) is public, it would follow
that, to prevert this public injury, compul-
sion may be used in the case of private
rivers likewise,
616
CULTIVATION OP WASTE LANDS.
[Vot. IV
REPLY No compulsion is used in digging
towards obtaining water to drink ;— thus if
the whole should refuse to dig, the magistrate
cannot employ force.*
Rules with reaped to drains , water course*,
&c.— IN digging a watercourse, the expense
mourred in the upper part is equally Defrayed
by the whole of the partners; but when the
work is cajried beyond the land of any one
of them, he is then, according to Haneefa,
exempt frdm all further charge. The two
disciples maintain that the expenses of
digging from the head to the end of the
watercourse is jointly defrayed by the
several partners, according to the extent of
their shares; because the partner possessing
the higher share has likewise a right in the
lower ones, they being needful to him, in
receiving the discharge, from his part, of
the superfluous water. Haneefa, in support
of his opinion, argues that the end of digging
the watercourse being to obtain water for
the purpose of cultivation, the object of the
higher sharer is consequently obtained when
his part is finished ; and he'is not, therefore,
under any obligation after that to assist in
prosecuting the work solely for the benefit of
others. — With respect, moreover, to what
the two disciples urge, it may be replied
that, although the higher partner do indeed
stand in need of the lower shares, for the
passing away of the superfluous water from
his share, yet he is not, on that account,
obliged to dig these lower shares; — in the
same manner as where a person has a right
of passing the water from his house upon
the terrace of another ; in which case he is
not under any obligation to unite in building
or repairing Such terrace. — Besides, the
higher partner may at any time prevent the
water from overflowing his land, by occa-
sionally damming up the source or spring,
thereby preventing the flow of any super-
fluity of water into his share.
WJHEN, in digging a watercourse common
to several partners, the work is carried
beyond the share of one of them, who is
thus exempted from any further charge,
some have alleged that he may then imme-
diately open the spring. head, or inlet, in
order to obtain water for cultivation, as the
watercourse, with respect of him, is wholly
dug. Others have said that he cannot do so
until the shares of the other partners be
likewise completed ; in order to prevent any
preference among them.
SUCH persons as have only a right to
drink the water, are not subject to pay any
part of the charges of digging, as those are
numberless, and are, moreover, subordinate
to the actual sharers.
*When water is wanted, towards moisten-
ing lands for cultivation, the magistrate may
then employ force in causing a rivulet to be
dug ; but not where the water js wanted only
Section III.
Of Claims of Shirb,* and of
and particular Privileges with respect
to it.
A right to water may exist independent of
the ground.— A CLAIM of Shirb, or right to
water, is valid independent of any property
in the ground, upon a favourable construc-
tion of the law ; for a person may become
endowed with it, exclusive of the ground,
either by inheritance or bequest ; and it
sometimes happens that when a person sells
his lands he reserves to himself the right of
Shirb. Besides, Shirb being a desirable
object, and also capable of yielding advan-
tago, the claim to it is therefore valid.
No person can alter or obstruct the cotorse
of water running through his ground.-— I*\ »
person be possessed of a rivulet running
through lands which are the property of
another, and the proprietor of these lands,
being desirous that it should not run through
them, attempt to prevent it, on the plea of
its being his property, he must not be per-
mitted to do so but the rivulet must be
suffered to flow in its usual channel,--for,
as the rivulet is in the possession of the
person who has the property of it, because
of his water running in the bed of it, his
word, in case of a litigation, is therefore to
be credited in preference to that of the other;
whereas, if the rivulet wore not in his
possession (as if it should contain now water),
in that case the word of the proprietor of
the lands would be credited ;— unless the
other could prove by witnesses that the rivu-
let is his property, or that he formerly con-
veyed water through it towards his own
grounds for the purpose of watering them,
—when the Kazoo must decree it to him, as
he thus substantiates his claim. — (Analogous
to this is a contention concerning the pro-
perty of a river-head, or a water drain, a
soout, or a road through the court of an-
other.)
In case of disputes, a distribution of the
rifjjit to water must be m<*de — IF a rivulet
bo jointly held by several persons, and they
dispute concerning their particular propor-
tions of right to water, a distribution must
be made according to the extent of land
which they serverally possess; — for a8 tne
object of right to water is to moisten their
lands, it is consequently fit that each receive
in proportion to his territory: — It is other-
wise in the case of a road ; for the object
in that being to pass and repass, the small-
ness or largeness of the house is of no weight
in the division: — that is to say, if the part,
ners in a road dispute concerning their
shares, it is decreed that they shall hold it
equally, and that no distinction shall be
made from the difference of their houses.
* This term, which is purely technical,
the translator, for the convenience of the
English reader, has rendered, in general, a
right to water, f °"
BOCK XLV.]
CULTIVATION OF WASTE LANDS.
A rivulet must not be flammed up for the
convenience of one partner, without tfie con-
sent of the others. — IF it happen that the
person who possesses the highest part of
rivulet bo nor able, without stopping the
current, to enjoy his right to water in a
satisfactory manner (for this reason ; that
his lands, being high precipitate the water
from them with great velocity); still he must
not be permitted to dam the rivulet, as he
would thereby destroy the right of the others.-
he must, therefore, take his share without
stopping tho current. If, however, the
others assent to his stopping the current
that he may the better water his hind, or
enter into an agreement that each shall stop
it in his turn, it is lawful, as being Ihcir
right. But if it bo possible to effect the
stoppage with a board, they must not use
clay, or any kind of plaster, without the
consent of the whole, as an injury would be
thereby occasioned to the other shares.
One partner in a rivulet cannot dig a trench
or erect a mill upon it without tli?< general
content — IT is not permitted to any of tho
sharers to* dig another rivulet leading from
the common one, or to erect a water mill
upon it ; — because, in the former instance,
the bank of a common rivulet must neces-
sarily be broken ; and in the latter, an
erection i« made of a building upon a
partnership concern ; — unless, however, the
mill be stationed on tho builder's land, and
bo not injurious, either to tho ground, by
breaking down the banks, or to tho water,
by diverting it into another channel ; — in
which case it is lawful, as being the exercise
of a power derived from property, and from
which there results not any injury to others.
Nor construct a water-engine or a bridge.
— (THE erecting of a machine for raising j
water by camels, or oxen, is considered in the j
same light as tho erecting of a mill.) — It is
likewise unlawful for any of tho sharers
either to erect a small bridge which may be
occasionally withdrawn, or a large one of
stone or bricks which is durable and fixed.
— In short, a private rivulet is considered in
the same light as a private road, in which
several participate, but in which none have
any particular privileges. — It is otherwise
where a person possesses a small private
rivulet brought out from a large private
one jointly held by several ; for in that case,
if the proprietor of the little rivulet choose
he may erect upon it a large solid bridge;
or, if there was previously a bridge over it,
he may, if he please, pull it down (provided
a greater quantity of water than formerly
do not, by that means, flow into his rivulet)
for under 'these circumstances the demolition
of the bridge is lawful, being in virtu" a
power derived from his own property, which
occasions no detriment to others. Ho must
not, however, extend the inlet of the smaller
rivulet ; as he would thereby destroy the
banks of the large one, and likewise draw
a greater quantity of water into his own
his due, — Neither must he be suffered
to enlarge tho sluice through which he re-
cejvos his share of water, where the distri-
but i on is made in that manner, — that is,
whore boards with holes are fixed on the
bank of tho river contiguous to the lands
of eafh partner, that he may receive, as his
share, whatever quantity of water issues
through his board. — But any of them who
chooses may cither heighten or lower his
particular 'board, as the oquplity of the
division dcvpends upon the largeness or
smallness of the holes, and upon the
height or lowness of them, for an alteration
in that respect occasions no difference in the
distribution.
One. partner cannot alter tie mode of
partition without the others' consent. — IF
where the distribution is made by sluices,
in the manner above described, one of the
partners choose that tho partition be made
b> tho measure of time, he is not at liberty
so to adjust it, unless with the concurrence
of tho others • for whatever is the establised
mode must bo continued ; as the right of
every one is by that means more clearly
distinguished.
Or increase the number of openings through
which he receives his share. — IF each partner
in an appropriated rrVulet have a specific
number of holes or sluices allotted to him,
it is not permitted to any of the/n to increase
that number, notwithstanding it may occa-
sion no injury to tho others ; for here exists
a partnership in particular property, and in
which the right of each is particularly speci-
fied.— It is otherwise in the case of large
rivers, such as tho Tigris or the, Euphrates ;
for as there any person is at liberty to dig a
small rivulet, and fill it from them, he is
consequently at liberty to increase the hole
or sluices through which the waters pass from
them.
Or convey his share into lands not entitled
to receive it. — IT is not lawful for any of the
partners in a river to convey his share of
water into such of his lands as are not
entitled to receive water from that river ; for
this circumstance might, in process of time,
furnish an argument of his having a right
to water these lands from that river.
Or tnrouqh s.uch lands into those that are
entitled. — Neither is it lawful for a partner
to convoy his share of water through such
of his lands as are not entitled to it, into
others that are : for, in this case, it is pro-
bable he would receive a greater quantity
of water than his due, as part would be
absorbed by the lands through which they
first passed. (This is analogous to the case
of a joint road, where one of the partners
wishes to open a road to tho inhabitants of
a house, in the same range, whose road lies
through another way, by permitting them
to pass through his house in their way to
their own).
Neither can he shut up any of the water.
v.ents — IF two persons possess a rivulet
jointly, and receive their shares by water
issuing through sluices, and the one whose
618
PROHIBITED LIQUORS.
[VOL. IV
share lies nearest to tho source be inclined to
stop several of the shades alloted to him,
to prevent the issue of a superfluity of wdfter
into his lands, he must not be allowed so to
do, as he might thereby subject the lands of
the other sharer to be overflowed
Or adopt a petition by rotation — Neither
is he at liberty to change the mode of par-
ticipations ; by taking the use of the whole
in rotation, instead of eaeh receiving a moiety
of the whole quantity ; for as the division
has already been settled by the mode of
vents or sluices, he cannot afterwards require
any other mode, — unless the other assent, in
which crose he ma'y do so ; — is still, however,
remaining at the option of this partner (or
of his heir, after his decease) to annul this,
and revert to the former mode; — because tho
establishment of division, by giving the
whole to each in rotation, in a case where
each had fonnerlly hold a separate share, is,
in fact, lending a right to water (as an ex-
change of Shirb for Shirb is null) : and a
right to water is inheritable, or the use of it
may lawfully bo loft in legacy; but it can
neither be sold nor bestowed in gift, nor left
in legacy to sell, give away, or bestow in
alms, those several deeds being unlawful on
account of tho uncertainty to which they
are liable, either from ignorance or de'ceit,
with regard to the quantity of water, — or
because Shirb is not, in itself, a substantial
property, but rather a privilege or immunity,
insomuch that if a person water his lands
from the Shirb of another, he is not liabe
to make compensation for it ; — and these
several deeds being void, a legacy for any of
these purposes is also void.
A right to water cannot be consigned as a
dower. — A BIGHT to water is incapable of
being assigned as a specific dower in a con-
tract of marriage ; wherefore if such bo
mentioned in a marriage contract, Mihr-
Misl, or proper dower, is due.
Or given as a consideration for Khoola. —
In the same manner, also, it cannot be given
as a consideration for Khoola; — whence, if a
wife bargain for her divorce, in consideration
of her making over such right, the husband
may restore it to her, and; in lieu of it, take
from her the dower he had assigned her on
their marriage. The ground on which the
law in these cases proceeds is, that right to
water is a matter the extent of which cannot
be ascertained with any precision.
Or in composition for a claim.- — A BIGHT
to water is incapable of being given in coin-
position for a claim ; for as it cannot, by
means of any deed whatever, bo rendered
property, a composition in conidcration of
it is consequently null.
Or sold (without ground) to discharge the
debts of a defunct — (mode to be pursued in
this last instance) — A EIGHT to water, with
Out ground, cannot be sold after the death of
any perosn to discharge his debts,— in tho
same manner as it cannot be sold during his
lifetime. What, then, shall the Imam do,
in this case, towards settling the debt of the
deceased ? — This question has given rise to a
divorsitjy of opinions ; but the most advis-
able method of proceeding, in such an in-
stance, is to join the right to the lands of
another person not possessing such right,
and then, with his consent, to dispo.se of
both : — when, computing how much the value
of tho lands has been increased by the ad-
dition of tho right, ho may apply the differ-
once towards paying off the debts of the
deceased. If he be not able to proeure land
in this manner, he may buy a piece of land
payable from the effects of the deceased, and
having joined it to the right, sell them to-
gether ; when with the price so obtained
he must first discharge the purchase -money
discharging the debts of the deceased.
Any accident from the usfe of the water
does not induce responsibility. — Ij a person,
having moistened his lands, or filled then
with water, should by that means overflow
the lands of his neighbour, he is not, in such
case, liable to make a compensation, as he
was not guilty of any transgression
BOOK XLVI.
OP PROHIBITED LlQr/ORS.
There are four prohibited liquors. /.
Khamf (the crude juice of the grape).— I
THERK aro four prohibited liquo^rs, — the first
of which is termed Khamr,* meaning (a>c-
cording to the exposition of Haneefa) the
crude juice of the grape, which, being fer-
mented, becomes spirituous, — first gathering
foam and settling, and then possessing an
inebriating quality. According to tho two
disciples ; the juico becomes Khamr upon its
fermenting, and being spirituous without the
condition of its gathering foam ; — for when-
over the juice of grapes becomes spirituous,
the appellation of Khamr, and the charac-
teristic of it, namely, illegality, are both
established. — The argument adduced by
Haneefa is, that fermentation is tho com-
mencement of tho process by which liquor
becomes spirituous, and which is completed
when it foams and settles, as by thcit means
the dregs are separated from the finer
particles; — and the ordinances of the LAW
regarding Khtar (which are decisive), such
as punishment for drinking it, the holding
him an infidol who shall deem it lawful, and
the prohibition against selling it,— have all
a reference to the com-pletion. Sojno of the
learned allege that it is declared unlawful to
drink after having become spirituous, purely
* The translator has, in the course of the
work rendered every inebriating drink under
the general term wine, which comprehends
all descriptions of prohibited liquors. — In
this book, however, he retains the original
terms for the safce of distinction.
BOOK XLVL]
PROHIBITED LIQUOUS.
619
from motives of caution. — Others, again,
maintain that the term Khamr is applicable
to whatever is of an inebriating quality ;
because it is mentioned in the traditions,
that "whatever inebriate is KHAMR ;" — and
(in another tradition) ''KirAMit is produced
from two trees, namely, the VINE and the
DATE." Tho term Khamr, moreover, is
derived from Mokhamira, signifying, stupe-
faction, or deprivation of sense, which is a
consequence of drinking any inebriating
liquor. In reply to this, however, Haneefa
argues that the term Khamr, according to
the concurrent opinion of all lexicographers,
is used only in the sense above mentioned,
whence it is that to liquors of other descrip-
tions other terms are applied, Such as
Naboez, Taboekh, and Mosillis.* Another
argument is that the illegality of Khamr is
indubitable, — whence, if every inebriating
liquor were Khamr, all such would of course
be likewise indubitably illegal, — whereas
this is not the case, for there is a doubt
regarding them. In reply, moreover, to the
arguments of some of the learned as above
adduced, it is to be remarked that the first-
recited tradition is not perfectly authentic,
Ychya Ibn Mayeen having disputed it ; —
and with respect to the second quoted
tradition, the intention of it was merely to
explain the LAW, or, in other words, to show
that all liquors extracted from either of the
two trees mentioned, being of an inebriating
quality, are unlawful as well as Khamr.
Which is unlawful in any quantity. —
KHAMR is in itself unlawful, whether it be
used in small or great quantities, the il-
legality not depending on drinking it to
such a degree as to produce intoxication
Some of looser principles reject the absolute
illegality of Khamr, alleging that its effects
only are the cause of its illegality ; because
the evil of it is, that it creates an inattention
towards the worship of GOD ; and as this
evil is occasioned only by intoxication, it
follows that where this does not take place
it is not unlawful. — This, however, is gross
infidelity, and in direct contradiction to the
KORAN, GOD having there termed such
liquor filth, a thing which is unlawful in its
own nature. Bsiedes, the Prophet has de-
creed Khamr to be unlawful, according to
various traditions ; and all the doctors are
unanimously of this opinion. It is to be
observed, however, that although Khamr be
unlawful, even is so small a quantity as
may not be sufficient to intoxicate, yet the
same law does not hold with respect to other
things of an inebriating quality ; for a little
of them if not sufficient to intoxicate, is
not forbidden. Shafei, indeed, is of opinion
that these are likewise unlawful, in any
quantiy.
Is filth in an extreme — KJTAMB is filth in
an extreme degree, in the same manner as
* These are different kinds of liquor,
extracted from dates, which are more parti-
cularly described a little farther on.
urine ; for the illegality of it is indisputably
proved, as has been already shown.
•\VHOSOEVKR maintains Khamr to be law-
ful is an infidel,* for ho thereby rejects
incontestable proof.
And cannot constitute prpycrly with a
Mussulman. — KHAMR is nut a valuable
commodity with respect tjo Mussulmans.
If therefore, it be destroyed or usurped by
any person, there is no responsibility. The
sale of it is moreover unlawful ; for GOD, in
terming it filth, manifested a detestation of
it ; whereas, if it had been a commodity of
value, some respect would have been shown
to it — Besides, it is recorded in the tradi-
tions, that "he who prohibited tho drinking
of it; did likewise prohibit both the sale of it
and tho use or enjoyment of the price of it."
Nor be employed in the discharge of Ms
debt* — lar a Mussulman be indebted to
another, and wish to discharge the debt with
the price of Khamr, in that case both the
payment and receipt is unlawful because
such price is produced from an illicit sale,
and is considered either as an usurpation or
a trust in the Mussulman's hands, according
to the different opinion of the doctors on
this Bubjects j in the same manner as in tho
case of the sale of carrion. If, on the con-
trary, the debtor bo a Zixnmee, it is lawful
for his Mussulman creditor to receive Such
payment ; as the sale of Khamr is legal
amongst Zimmecs.
Or used by ihm. — IT is unlawful to derive
any use from Khamr, either as a medicine,
or in any other manner ; because the use of
filth is forbidden ; and also, because absti-
nence from it is enjoyed and this injunc-
tion could not be observed in case of its use
being allowed.
And the drinking of which, in any quantity
induces punishment — WHOEVER drinks
Khamr incurs punishment, although he be
not intoxicated : for it is said, in the tradi-
tions, "Lot him who drinks KHAMR be
whipped ; — and if he drink it again, let him
be again in he same manner punished."
The whole of the companions are agreed
upon this point ; and the number of stripes
prescribed is eighty, as has already been
shown in treating of punishments.
Unless it be, boiled. — IF a person boil
Khainr until two-thirds of it evaporate, it is
not thereby rendered lawful. If, however,
a person drink of it after such process, he is
not liable to punishment, unless he be in-
toxicated.
But it may be converted into vinegar — IT
is lawful to make vinegar of Khamr. Shafei,
however, holds a different opinion.
77. Bazik (the boiled juice of the grape),
termed (when boiled away to one hal/)
Monissaf. — TATTS much with respect to
Khamr, the first in order of prohibited
liquors. — The second species of prohibited
liquor, is tho juice of grapes boiled until a
~*~AniTcj)j)Ho.qiientT.v becomes exposed to
the penalties of apostasy.
626
PROHIBITED LIQUORS.
VOL. IV
quantity loss than two-thirds evaporate.
This is denominated Bazik. It is also
termed Moniasaf; but that is only whfre
exactly one half of it evaporates in boiling.
This kind of liquor is unlawful, according
to all our doctors ; — according to the two
disciples, when it only ferments and become
spirituous ; — and according to Haneefa, when
if foams and settles. Onzrni has said that
Monissafis lawful (and several of the tribe
of Mutaznli* have seconded this opinion);
because it is a. good liquor. or, in other
words, is pleasing to the, palate and «»lso.
because it is not Khnmr. The argument of
our doclors, that MM Monissaf is pure, and
equally delicious with Khamr, a number of
the idle and dissolute are consequently
tempted to drink it ; and it is therefore pro-
hibited, with a view to prevent that dissipa-
tion which it is found to occasion.
///. Sicker (an infusion of dates).— THK
third species of unlawful liquor is termed
Rikkir ; and is made by steeping fresh dates
in wdtcr unitl they take effect in sweetening
it; when it is both unlawful and abominable
to drink of it. Shareek-fbn-Ahdoola. alleges
that it is lawful, as (Jon, speaking of his
bounty in the KORAN, s-iys, "YK KNJOY
SlKKEB FROM THK GRAfKAND T||K I)VTK ; "
whence we ina\ infer that it is allowable — ,as
bounty e.wnoi apply to any thing unlawful.
The argument of our doctors is the concur-
rent opinion of all the companions upon this
point; and with respect to the text above
cited, it has a reference to a particular
period, having been revealed in the infancy
of the religion of Islam, when all sorts of
spirituous liquors were lawful.
/V* tfvokoo Zabeeb (an infusion of raisins).
— THE fourth species of prohibited liquors
is Nookoo-Z ibceb,f that is, water in which
raisins are steeped until it become sweet,
and is affected in its substance. This kind
is, however, lawful when merely it possesses
a sweet quality ; — and is prohibited only
when it ferments and be/comes spirituous.
Oozrai is of a different opinion regarding
this liquor likewise.
The three, last are not so illegal as Khamr.
— They may to held legal, without incurring
a change of infidelity.— IT is to be observed
that the illegality of those liquors, namely,
Bazik, Monissif, and the Nookoo of dates
and raisin, is inferior to that of Khamr.
If, therefore, any person hold these lawful,
still he is not deemed an infidel. It is other-
wise in the case of Khamr ; for, with re-
spect to the liquors here mentioned, the ille-
gality a mere matter of opinion ; whereas,
with regard to Khamr, the illegality is
undisputed.
Ann may be drank (so as not to intoxicate)
without punishment. — PUNISHMENT, morc-
*A particular heretical sect of the Mus-
sulmans. (See Sale's Prelminary Discourse,
Sect. ».)
t Nookoo signifies water in wheih any-
thing is steeped and Zabeeb means raisins.
over, is not inflicted for drinking these
liquors, except in a quantiy nuiffieicnt to
produce intoxication ; whereas the drinking
of one drop only of Khamr induces punish-
ment. The filth of these liquors, likswise,
according to one tradition, is of a slight
degree, and according to another, of an
extreme degree ; but the filth of Khamr is
of an extreme degree, according to every
tradition.
They may also be sold 'and arc a subject
nf responsibility. — TUB sale of the. liquors
in question is lawful, according to Hanoefa,
and a componsion is due from the de-
stroyer of them. The two disciples, on tho
contrary, hold that the sale of them is un-
lawful, and that no reparation is due from
tho destroyer of them ; in tho same manner
as in the case of Khamr.
But they must not be used. — IT is unlawful
to derive any kind of use. from tho above-
mentioned liquors, as they arc prohibited.
It is related that Aboo Yoosaf holds tho sale
of any of the aforesaid liquors, excepting
Khamr, to bo lawful, — if more than one
half, and less than two-thirds, should have
evaporated in the boiling.
MOHAMMED, in 1 ho Jama Saghper, remarks
that every sort of liquor excepting those
above mentioned is lawful. This opinion,
the learned say, is recorded only in tho Jama
Saghecr, and is not to be found in any other
book. It, however, affords an agrumerit that
any kind of strong liquor extracted from
wheat, barley, honey, or millet, is lawful in
the opinion of Haneefii , if not drank so as to
occasion intoxication ; and he, in fact, main-
tains that punishment is not inflicted even
in the case of intoxication. If, therefore, a
person intoxicated with these liquors should
divorce his wife, it is void, in the same manner
as divorce pronounced by a person in his sleep
or by one whose faculties are iinpaiied from
the iiso of opium, or from having drank tho
milk of a mare in a medical composition. It
is elsewhere related, as an opinion of Mo-
hammed, that every sort of strong drink,
excepting those above specified, is pro-
hibited : — that if a person drink them to
intoxication he is to be punished ; — and that
a divorce pronounced by him when so in-
toxicated is valid ; — in the same manner as
holds in the case of liquors ; and decrees pass
according to this opinion. Ho has also said,
in the Jama Sagheer, that Aboo Yoosaf had
first declared every sort of wino to be un-
lawful which fermented and became spirit-
uous, and afterward remained ten days with-
out spoiling : but that he afterwards adopted
the opinion of Haneefa. Jn other words, he
first, according to tho Mjudi-cation of Mo-
hammed deemed all inebriating liquors un-
lawful ; but afterwards adopted the opinion
of Haneefa. Aboo Yoosaf was singular in
making it a condition that the liquor should
remain ten days without being spoiled,
Ho, however, afterwards receded from this
opinion, and gave into that of Haneefa and
Moh'imnied on this point. In the Abridg
BOOK XLVI.]
PROHIBITED LIQUORS.
621
ment (of Kadooree) it is said, that the steep-
ing of raisins or dried dates, when boiled a
little, oven so as to become spirituous, may
lawfully bo drank in such a quantity as not
to inebriate, povidcd it bo done without
wantonness or joy, — his is according only to
the two Elders ; for Mohammed and Shafci
deem it unlawful.
Khpoltceai (a mixture of the infusion of
dates and raisins) may be drank. — THBBK w
no impropriety in drinking Khooltoon ; that
is, water in which dates hayo been steeped,
mixed with that of raisins, and boiled together
until they ferment and become spirituous.
Tins is grounded on a circumstance relative
to Ibn Zeeyad, which is thus related by
himself: — "Abdoola, the son of Omar,
having given mo some Sherbet to drink, 1
became intoxicated to such a degree that
knew not my own house. I wont to him
next morning, and having informed him of
the circumstance, he acquainted me that he
had given me nothing b«t a drink composed
of dates and raisins." — Now this was cer-
tainly Khooltcen, which had undergone the
operation of boiling ; because it is elsewhere
related by Omar that it is unlawful in its
crude state.
Liquors produced by means of ftonrtf or
grain are lawftil. — LIQTTOII produced by
means of honey, wheat, barley, or millet, is
lawful, according to Uancefa ami Aboo Yoo-
s'»f, although it be not boiled, — provided,
however, that it bo not drank in a wanton or
joyful manner. The argument they adduce
is the s-iying of the Prophet "KHAMK is the
product of these two trees" (meaning the vine
and the date) ;— that is to say, he confined the
prohibition to these two trees, us his inten-
tion was to explain the LAW. — It is to be ob-
served that several of the learned have made
the boiling of these liquors a requisite to-
wards their legality. Others, on the con-
trary, hold it to be no way necessary (and
such is the opinion recorded in the Mabsoot) :
because these liquors are not of such a
nature that a little induces a wish for more,
whether they bo boiled or crude. It has
likewise been disputed whether a person
who gets drunk with any of these liquors is to
be punished. Some have said that he is not.
But any person drinking them to intoxica-
tion incurs punishment. — The learned in the
LAW, however, have determined otherwise ;
for it is related by Mohammed that punish-
ment is to be inflicted on whoever is intoxi-
cated with any of the aforesaid strong
liquors ; for this reason, that in the present
age they are as much sought for by the
dissolute as other liquors were formerly ;
nay even more so. — The same law holds with
regard to strong drinks extracted from milk.
Many have said that any drink made from
the milk of a mare is unlawful, in th
opinion of Kaneefa. because it is derived
from the flesh, which (according to him) i^
unlawful. Lawyers, however, remark it us
the better opinion that the milk is not
ufl lawful according to Haneefa ; for although j the KUBAN.
10 have pronounced the flesh to be abomi-
nable, yet the reason is either because, if it
were otherwise, the means of eonqticst would
thereby bo destroyed ; or because the, horse
s a noble animal ; neither of which reasons
liold with rogaid to the milk.
Mofsillis (grapcjvice boiled down in » third)
is lawful. — IF the juice of grapes be boiled'
until two- thirds of it evaporate (being
then formed Mosillis), it becomes lawful,
according to (he two Elders, notwithstanding
it be spirituous. Moham>ned, Shafci, and
Malik, say otherwise. (This difference of
opinion, however, exists only on the, sup-
position that it is used with a view to
strengthen the constitution ; for if it bo
drank from pleasure or joy they are unani-
mous in judging it unlawful.) ^Mohammed,
tihufei. and Malik, in support of their
opinion, have cited a saying of the Prophet,
"Every inebriating drink is KHAMR; and
whatever in excess produces intoxication is
prohibited, even in moderation ; " and in
another place. " Any drink of which one
cupful occasions intoxication, is unlawful in
a single drop." — Another argument is, that
every inebriating liquor tends to stupefy the
senses, and is consequently prohibited either
in a sinJ»U or l*'rgc quantity, in the same
manner MS Kh»mr. The two TCIdcrs, in sup-
port of their opinion, have quoted the saying
of the Prophet ; "KHAMR is unlawful in iU
very nature :" arid in another place, "Little
or much of it is alike unlawful ; and inebria-
tion from every other strong drink (that is
to say, every kind besides Khamr) is forbid-
den." Now since the Prophet has specified
intoxication as a condition with respect to
other drinks than Khamr, we may conclude
that on that circumstance only their illegality
depends. Besides, stupefaction of the senses
takes place only when liquors are used in
such excess as to inebriate which is allowed
to be dregal. A little, therefore, of any
strong rink other than Khamr is never
illegal, except when, on account of its fine-
ness or purity, a little of it invites to more, —
in which ease the law regards every quan-
tity of it in the same light. This, however.
is not the case with Mosillis, a little of
which, because of its thickness, does not
induce a wish for more; and which, in itfi
substances, is food,— wherefore when used in
a moderate quantity it retains its origina
legality.*
Central rule with respect to it. — IF la
little water be poured into Mosillis to rendci
it fine, and it be afterwards boiled for a
short time it is still Mosillis, that addition oi
* By original legality Haneefa alludes tt
an opinion he maintained in opposition tc
Malik, that every thing is originally lawfu
in its nature, being rendered otherwise onlj
by the prohibition of the sacred writings:—
whereas Malik holds every thing to have
j been originally unlawful, until sanctified b}
PROHIBITED LIQUOfeS.
[VOL. IV
water tending only to weaken it. — It
otherwise where water is mixed with crude
juice, and this mixture is then boiled uriti
two.-thirds of it evaporate ; for here, oitne
the water purely evaporates altogether, or ii
evaporates jointly with the juice ; and ii
either case it is plain that two-thirds of the
pure juice of the grapes or dates does noi
evaporate, which is requisite to render it a
legal drink.
Rule in the boiling of impressed grapes. —
IF grapes bo first boiled, and afterwards
pressed until their juice bo extracted, in that
case a very little more boiling is sufficient to
render the drinking of tho liquor lawful
according to one tradition of llaneefa. Ac-
cording to another tradition it does not
become lawful until two-thirds of it evaporafr
in boiling ; and this is tho better opinion
because the juice remaining within the film
and not being in any manner affected by the
boiling, it is consequently similar to juice
which is not boiled.
Or grapes mixed with date.* — IF fresh or
dried grapes ; being mixed with dates, bo
then boiled, two-thirds of the mixture must
evaporate before it becomes lawful ; for
although, with respect to dates, a small
boiling be often sufficient, yet with respeot
to the juice of grapes two-thirds are always
required to have evaporated in boiling The
same rule also holds where the juice of
grapes is mixed with the water in which
dates have been steeped. If, however, dried
grapes, being mixed with the water of dates,
should be boiled for a little, and afterwards
some dates or dried grapes be thrown into
it, in that case, provided the quantity thrown
in be small, and not so much as is generally
used to make Nabeez, it is lawful. It is
otherwise, indeed, if the quantity bo not
small ; — in the same manner as where a pot
of the water of dates or raisins is mixed
with the bolied juice Still, however, the
person who drinks it is not subject, to pun-
ishment, because its illegality is adjudged
merely on principles of caution ; and en-
deavours must always }>e u<*ed to avoid the
infliction of punishment.
Liquor, having once acquired a spirit, is
not rendered lawfu by boiling. — IF Khamr,
or any other spirtuous liquor, be boiled until
two-thirds of it evaporate, still it is not law-
ful ; for the illegality of it, which was pre-
viously established, is not removed by boiling.
Rule with respect to the use of vessels. —
THKBE is no impropriety in squeezing juice
into pots or vessels of a green colour, or of
which the interior part has been varnished
with oil. The reason of this is, that
formerly, in the infancy of the Mussulman
religion, it was customary to keep Khamr in
such vessels ; and, on this account, when
Khamer was rendered illegal, the Prophet
prohibited the use of them likewise, that
tho greater caution might be observed. He
afterwards, however, permitted the use of
them, seeing that the vessels of themselves i
did not render any thing unlawful. If, I
therefore, Khamr have been kept in these
vessels, it is necessary they bo washed before
they are applied to use. If a vessel bo old,
it becomes clean by three washing** : but if
it bo now it can never bo cleansed, in the
opinion of Mohammed ; for then the wine
penetrates, and makes a deep impression in
it ; contrary to the case of an old one. Aboo
Yoosaf holds that it may bo cleansed by
washing it thrice, and drying it after each
washing.— Several have said that, in the
opinion of Aboo Yoosaf, the mode of cleans-
ing it is by filling it with water, and letting
it remain for a short time ; and then empty-
ing it and filling it again ; and so repeating
this process until the water poured out be
perfectly pure ; when tho vessel is clean.
Vinegar may be made from Khamr.—
When Khamr is converted into vinegar, it
is then lawful, whether it have been made
so by throwing any thing into it (such as
salt or vinegar), or, have become so of itself.
VINEGAR made of Khamr is not abomi-
nable. Hhafei maintains that it is abomina-
ble ; and that all vinegar obtained from
Khainr by means of some mixtuie is unlaw-
ful.— With respect, however, to such as turn
so from Khamr of itself, he has given two
different opinions.
And the vessel in wh-hh it ** $<> wid' become ft
pure — When Khamr is changed into vine-
gar, the vessel in which it is contained be.
comes clean according to tho quantity of the
Khamr. With regard to that part of tho
vessel that was e-mpty, several have said
that it also becomes clean, as being depen-
dent on the other : but others have said that,
as it is battered over with dried Khamr, it,
docs not become clean until it be washed
with vinegar, when it is immediately puri.
fied. In the same manner also, if Khamr be
poured out of a vessel, and the vessel be
then washed with vinegar, it becomes (as
lawyers have said) instantaneously clein.
Rules with respect to the dregs of Khamr.
— -IT is abominable to drink the dregs of
Khamr, or to use it in combing the hair as
some women do ; for the dregs are not en-
tirely void of the particles of Khamr, and it
is unlawful to apply any unlawful thing to
use; — whence the illegality of using it in
healing a wound, or applying it to a sore on
the baek of a quadruped. — It is also un-
awful to administer it to an infidel or an
nfant ; and whosoever does so is chargeable
with the crime of it. In the same manner,
t is unlawful to give it to a quadruped to
irink. — Concerning this point, however,
several have said that although it bo unlaw-
iul to carry Khamr to a quadruped, yet if
the animal* being brought to it, should
drink of it, there is no impropriety ; — in the
same manner as in the case of a dog and
arrion ; that is to say, carrion must not be
thrown to a dog ; but if a dog be carried to
where carrion is, he may, without any impro-
>riety, be suffered to eat it.
IT is allowable to mix the dregs of Khamr
with vinegar. In this case, however, it is
BOOK XLVIL]
HUNTING
623
required, that tho vinegcir bo carried to the
place where the dregs are, anil 1)0 there
mixed, for otherwise it is unlawful.
A rBRHON who drinks tho dregs of Khamr
without being intoxicated is not liable to
punishment. Shafoi is of a different opinion;
for in this case several of the particles of
Khamr must necessarily be drank likewise.
Our doctors, on the contrary, argue that as
the dregs, of Khamr arc disagreeable to the
palate, a little of it does not, by consequence,
beget an inclination for more : and thus,
being like other strong drinks, the drinking
of a little, unless it be attendedwith intoxi-
cation, is not punishable.
An injection of Kham/r is unlawful but
not punishable. An injection of Khamr into
tho anus or penis is unlawful as being a
benefit derived from an unlawful article. It
is not, however, punishable, as punishment,
is inflicted only in the case of drinking it.
A,nd so likewise a mixture of it in viands
— -I& a parson throw Khamr into soup, it is
not then lawful foo* him to eat tho soup — be-
cause of its being rendered impure. Never-
theless, if he eat it, he is not liable to punish-
ment, for in this case the Khamr is as it were
boiled.
IF a person knead flour with Khamr, in
that case it is unlawful to eat the bread or
paste so made, as many of the particles of
the Khamr stall remain in it.
Section.
Of boiling the Jufae of Grapes.
There are three general principles to be
observed upon this subject.— <IN boiling the
juice of grapes there are three principles. —
The first principle is, that whatever quan-
tity majy run over the pot from the agitation
in boiling, or from the foaming of the juice,
is not taken into account, but if considered
as not having belonged to it ; and the resi-
due is to boiled until two*-thirds of it
evaporate, in order that the remaining third
maybe rendered lawful. To illustrate this; —
suppose a person inclined to boil ten cups of
juice ; in that case, if one cmp be lost from
its boiling over the pot, he must boil the re-
mainder until six cups have evaporated and
three remain in tho pot, when it becomes
lawful.
THE second principle is, that if water be
first poured into the juice, and the whole be
then boiled, and the water, on account of its
subtletv, be soon wasted, it is requisite that
whatever re/mains after the evaporation (of
the water) be boiled until two-thirds of it be
wasted. I>f, on the contrary, the water and
juice eve porate together, it is in that ease
requisite that the mix tune be boiled until
two- thirds of the whole evaporate, that the
remaining tihird may be rendered lawful ;
for here the third of the mixture of water
and juice which remains becomes the same
as if, a third of tho pure juice having re-
mained, water had then been poured into it
mix ten cups of juice with twenty cups of
waiter ; — in that case, if tho water purely
evaporate, tho mixture must be boiled until
a ninth of it remain, which is equivalent to
one-third of the pure juice : — whereas, if the
juice and water evaporate conjunctly, the
whole must then be boiled until two-thirds
of it evaporate.
IF juice be boiled with fire,* at one or
several different times before it be in-
ebriating or prohibited, it is lawful. If, also,
tho juice, being taken from the fire, should
continue to boil until two -thirds of it
evapo,ratc, it is lawful, as in this case the
evaporation is the effect of the fire.
THE third principle is, in boiling juice,
after part of it has evaporated, and part
hag likewise been poured put, — to know ho\i
much more must evaporate, that the re-
maining part may bo rendered lawful; —
and, in order to this, the following rule
must bo observed* — The quantity which re-
mains after part has been poured out must
be multiplied by tho third of the whole ; and
this sum being divided by the quantity
which remains after part of it only hag
evaporated, the quotient is the quantity that
is lawful. Thus, if a person boil ten cupfi
of juice, and after one cup had evaporated
three cups more should be poured out ; then
three cups and one-third (the third of the
whole) being multiplied into six, the numbei
which remains after the loss of evaporatior
and pouring out amounts to twenty, and thii
sum being divided by nine, there remains
two cups and two-ninths; the quantity which
is lawful, when the rest has evaporated.
BOOK XLVII.
OF HUNTING.
Section 7.
Of catching Game with Animals of the Hunt
ing Tr/ibe, such as Dogs. Hawks, <£<..
ft is lawful to hunt with all animal^ o/tht
huntfr tribe that are duly trained. It ig
lawful to hunt with a trained dog, a pan
thor,-f a hawk a falcon, and in short with
evtery animal of the hunter tribe that is
trained. It is related in the Jama 8agheer
that game caught with a trained animal oi
tho hunter tribe, whether bird or beast, is
lawful ; but that, caught with rny other
animal it is not lawful, unless when taker
alive, and slain by Zabbah. This doctrine
is established by a text of the KORAN, in
which mention is made of trained dogs. The
term Kalb [dog] comprehends, in its genera]
* The common method of making strong
drink, among the Asiatics, is by fermenting
the juice in the sun.
•f Yuz. — It is an animal of the leopard on
lynx species, hooded and trained to catch-
ing game, nearly on the same principle at
021
HUNTING
[VOL. IV
acceptation every carnivorous animal even
to n. tiger,* It' is, however, related atf HI
opinion of Aboo Yops.if, that t,i«rers and ho,irs
are cxcoptod, a» neither of them bunt foi
others, — the tiger bec-msc of his ferocity, am
tbe bear because, of hi.s voraciousness. .Some
of the kite tribe have likewise been ox-cepted
because of their voraciousness ; and the hog
has been oxeepted because it is essential filth,
and because, it is unlawful to derive any ad-
ventage from it. It is to bo observed that
it is a condition of the lawfulness of g^me
that the animal which takes it bo of the
hunter tribo, and trained ; and also that the
master let slipf the animal in tho n-'ime
GOD ; for it U so related in a tradition of
Audeo, the son of FTatim Tai.
Rules fof ascertaining whether a dog.
be duly 'trained — THE sign o-f a dog
trained is, his caching game three times
without eating it ; whereas the sign of a
hawk being trained is, merely, Her return-
ing to her master, and attending to his call
These signs are adopted from Abdoolla Ibn
Abass. Tho body of a hawk, moreover, is
not capable of enduring blows ; but as, on
the contrary, the body of a dog has this
capability, a doc; is therefore to be beaten
until he desist from eating the game. Be-
sides, one sign of being trained is ; to desist
from that which custom and habit have
made agreeable ; and as it is the custom
of a hawk to be wild ami to fly from man, it
follows that its paying attention to its mas-
ter V call, and showing no wilduess, is a sign
of its being trained. With respect to a dog,
on the contrary, be is attached to mn n ; but
his custom is to te^r and eat ; and conse-
quently, when lie preserves gam<* and does
not eat it, it is a sign of his heirig trained,
— It is to be observed that the condition
bererecited, of a dog desisting, and not
eating three times, is the doctrine of the
two disciples (.ind there is also one tra-
dition from llaneefa to the .same effect) ; —
and the reason of it is that, in less than
three times there is a probability of the dogs
forbearance having proceeded fio,m satiuty
or some such cause ; but that when he de-
sists from eating for three different time*, it
is a proof that such forbearance has become
a custom ; for this pirUmlar number of
three is the established standard for expe-
riments, and for the discovery of an evasion,
—in the S't-nae manner as it is used in deter-
mining the period of an option. It is also
recorded to hav^ been adopted in the story
of Moses and Khizzir ;J fur Khizzir, upon
* Arab, Assid ; including lions, and every
other creature of the feline tribe, except
the panther before mentioned'
f The expression in the original, signifies
to send off. — It here means the act of cast-
ing off the hound or hfiwk, and hunting
them at the game.
J This story (of which an explanation was
given to tho translator) is probably the ori-
ginal of Parnell'fl Hermit.
the third instance, said, " Now there is a
separation between you and me." Another
rc.ison is that plurality IH a sign of know-
ledge, ; and as three is the smallest mi.mber
of plurality, it has therefore been adopted
as the standard. In the opinion of Haneefa,
however, as recorded in tho Mabsoot, a train-
ing does not tako place, so long as the hunter
does not conceive the animal to be trained ;
—and he holds it improper to fix on the
number three ; becausc tho fixing on a par-
ticular number cannot be done by the fore-
thought of man, but must bo regulated by
the precepts of the sacred writings ; and as
no precept has been issued on this head, it is
proper to consign it to the judgment of him
who is best acquainted with the matter,
namely, tho hunter. According to a former
tradition. Hnncofa holds the game of the
third time to be lawful ;— -whilst the two
disciples maintained that it is not lawful as
the animal does not become trained until
after the third time ; and consequently the
game of the third time is the game of an
untrained animal, and, as such, is unlawful :
this beings like the act of a slave in the
presence of his master ; in other words, if a
slave perform any acts in the presence of his
master, s,uch a,s purchase or sale, and the
master, seeing and knowing the saoae,
re/main silent, tho slave in that case becomes
li<ccnsedr — not only with respect to the act in
question, but also with respect to every act
which he may afterwards perform : — and so
likewise in the case in question. Tho
reasoning of Haneefa is, that when tho
animal takes tho game the third time, and
instead of eating preserves it, this apgiies it
to have been trained at the time of taking
the ga/mc, and consequently tho game of the
third time is the ga-mo of a trained animal.
— It is otherwise in the case above nited,
bocause license is a notification, and cannot
tafce place without the knowledge of the
slave; and the slave cannot acquire this
knowledge until after he has performed the
act, and his master remained silent.
The invocation ntust be repeated (or, at
least, mu*<t nf)t be wilfully omitted) at the
time of letting slip the hound, <kc. — If a
person lot slip his trained dog, or his
trained hawk, and at the time of letting
them slip repeat the name of Cloi), or omit
it from foregetfulness, and tho dog or hawk
catch the game, and wound it so that it dies,
;he gnmc may in that case lawfully be eaten.
— If, however, he should wilfully, and not
Tom forgetfulnoss, omit the name of GOD, it
is not then lawful to eat the game so taken.
tt is mentioned in the Zahir ftawayet that
bhe wounding of the game is a condition of
its lawfulness, as it furnishes the means of a
Zabbah Iztiraree. (The meaning of Zabbah
[ztirareo has already been explained in
creating of Zabbah.)
The Arabs, having a dual number, do
not of course admit two to constitute
jlurality.
BOOK XLVIL]
HUNTING
625
A hunting quardruped eating any part of
the game renders it lawful.— IF a dog or
panther eat any part of tho game, it is
unlawful to eat of such ; but if a hawk eat
part of it, it may lawfully be eaten. — The
distinction between these two cases has
already been explained.
IF a dog (fot instance) catch game several
times without eating it, and afterwards
catching game eat part of it, such game
cannot lawfully be eaten, as the circum-
stance of the dog eating it is a proof that he
has not been properly trained. In the aajne
manner also, the game which he may after-
wards take is not lawful until he shall have
been trained anew, concerning which the
same difference of opinion obtains as that
already set forth concerning a training in
the beginning. With respect to the game
previously taken by him, illegality docs not
attach to such parts of it as have been
eaten, since there tho subject 110 longer
remains ; but with respect to such parts as
have not been preserved (that is, have been
left upon the plain), they are unlawful
according to all our doctors. As to what
may have been preserved (that is, what the
hunter may have carried to his own house),
it is unlawful, according to Ilaneofa. The
two disciples maintain it to be lawful ; for
they contend that tho circumstance of the
dog eating at that time is no argument of
his not having been previously trained, as
an art may be acquired and afterwards
forgotten. The argument of Ilanecfa, on
the contrary, is that the dog's eating of the
game at that period is a proof of his never
having been properly trained from tho first.
Game caught by a hawk, after it has
returned to its wild state, is not lawful. — IF
a hawk fly froon its master, and remain for a
while in a state of wjldness and flight, and
afterwards catch game, such game is not
lawful, as the hawk in that state is not
trained ; for the sign of being trained is to
return to its master ; and as it did not so
return, the sign no longer remains ; whence
it is considered in tho same light as a dog
which eats his game.
A dog does not render his game unlawful
by taking its blood. — IF a dog eat the blood
of his game, and not the flesh, the name is
lawful, and capable of being eaten, as the
dog has preserved it for his master, which
argues him to have been well trained, since
he eat merely what was unfit for his master,
and preserved what was fit for him.
Or by eating a piece of the Jitsh cut off and
thrown to him by the hunter. — IF a hunter,
having taken tho game from his trained dog,
cut off a piece of it, and throw it to tho dog,
and the dog eat the same, still the remaining
part of it is lawful, as it is not then gaone ;
the case being, in fact, the same as if a per-
son were to throw to a dog any other kind of
food. The law is the same where a dog leaps
upon his master ; and takes from him part of
the dead game in this hands and eats it ; this
being similar to whore a dog attacks his
master's goat, and kills it, which is no proof
of the dog's not being trained.
Gase of a dog biting off a piece in the pur-
suit of his game. — IF a dog lay hold of game
with his teeth, and having bitten off the part
oat it and afterwards catch the game and
kill it, without eating any other part of it,
tho game is unlawful ; because upon the dog
eating part of his galme it becomes evident
tftaft he is not trained. If, on the contrary,
he drop tho part bitten off, and having
pursued the game kill it and deliver it up to
his master without eating any part of it ; and
having afterwards passed by the part bitten
off eat tho same, the galrne is lawful ; for as,
if tho dog, under these circumstances, had
eaten part of tho body of tho game in the
hands of his master it would have been of no
consequence, it follows that it is, a fortiori, of
no consequence where ho eats what was
separated from it, and unlawful to the
master to eat. It is otherwise in the former
case ; because there the dog eat in the very
act of hunting ; and also, because the tearing
off a piece of flesh with teeth admits of
two explanations ; for first, this may be done
with a view to devouring, — and secondly, it
may be done with a view merely to weaken
the animal, in order the more easily to catch
it ; — and the eating of the piece before catch,
ing the animal argues the first of these,—
whereas the eating of it after catching and
delivering the game to the hunter argues the
second, whence no inference can be drawn
that the dog is not trained.
Game taken alive must be slain by Kabbah.
— Iv a hunter take game alive which his dog
had wounded, it is incumbent upon him to
slay it according to the prescribed form of
Zabbah], and if he delay so doing until it
die, it is then carrion and incapable of being
eaten. The law it the same with respect to
game taken by a hawk, or the like ; and also
with respect to gamie shot by an arrow. The
reason of it is, that in this case the hunter is
capable of the original observance, namely,
Zabbah Ikhtiaree, before the occurrence of
the necessity for the substitute, namely,
Zabbah Iztiraree ; and therefore the validity
of the substitute is annulled. This law,
however, supposes a capability in tho hunter
to perform the Zabbah ; for where he takes
tho game alive, and is incapable of perform-
ing the Zabbah, and there exists in the
animal more life than in one whose throat
has been just cut, such game (according to
the Zahir Rawayet) is not lawful. It is
related, as an opinion of Haneefa and A boo
Yoosaf, that it is lawful (and this opinion
has been adopted by Shafei) ; because the
hunter is not in this case capable of the
original observance, and is therefore in the
same situation as a person necessitated to
use sand instead of water, notwithstanding
he be in sight of water. The reason alleged
in the Zahir Rawayat is, that the hunter's
finding the animal alive is equivalent to his
capability of performing the Zabbah, since
it enables him to reach the throat of $h$
626
HOTTING
[VOL. IV
animal with his hand. Hence ho hap, in
a manner, the power of performing tho
Zabbah, which he neglects. It is other*4; so
whore only as much life exists in the animal
as in one whose throat has been cut ; bepauRo
it is then, in effect, dead, — whence it is that
if, in that state, it should fall into water, it
is not unlawful, any more than is it had
fallen into water when actually dead, tho
dead not being a fit subject for Zabbah.
Some of the learned have entered more por-
ticularly into this case, alleging hat if tho
inability to perform tho Zabbah nriso from
the want of an instrument, it is not then
permitted to eat it ; and that if the inability
arise from the want of time, in that case
likewise it is not permitted to eat it, accord-
ing to our doctors, — in opposition to the
opinion of Shafei. The argument of our
doctors is, that when the animal is taken
alive it is no longer game, because the term
game is applicable only to what is wild and
free ; and that therefore the Zabbah Iztirareo
is then of no effect, \Vbat is hero recited
proceeds on tho supposition of the animal
being taken alive, and of there being a
possibility of its continuing to live; for if
there bo no possibility of its continuing to
live (as where its belly has been torn, and
part of his entrails have come out), it may
lawfully be eaten without the performance of
Zabbah, because the life that remains in it is
equivalent only to the struggling of an
animal whose throat had been cut, and is
consequently of no effect ; — in the same
manner as whore a goat falls into water,
after having had its throat out.
Provide^ it live long enough to admit oj
performing this ceremony. — IJF the hunter
find the game alive, and do not take it from
his dog till it be dead, and there have been
sufficient time, after he found it alive, to
perform the Zabbah, it is not in that case
lawful to eat it : because this is equivalent
to an omission of the Zabbah, notwithstand-
ing an ability to perform it. If, on the
contrary, he had found it alive at a period
when, if he had taken it, there was not suffi-
cient time to perform the Zabbah, it is lawful.
The, game taken is lawful although it be
not the same that wa,s intended by the hunter,
— IF a hunter let slip his dog at game, and
the dog take some other gome, the game so
taken is lawful. Malik has said that it is
not lawful, since the dog took thie game
without having been let slip at it, as it was
at another specific animal that the hunter
let him slip. Our doctors, on the other
hand, argue that the object of the hunter is
merely the acquisition of game ; and all
game is the same to him. Besides, the
specification of the particular animal is of
no advantage, as it is impracticable to teach
a dog to take that particular animal.
Rule in casting off a panther at game —
IF a pctson lot slip a panther at game,* and
* The lynx or panther used in hunting is
generally kept hooded, and is conveyed frojm
tbe panther lie for a while in ambush, and
then catch and kill the game, it is lawful to
east it ; because tho lying in ambush being
with a view to catch tho game, and not to
take rest, does not of consequen.ee terminate
the act of letting it slip. The same rule
also holds with respect to a dog, when
trained in the manner of a panther
AH tihe game caught by the dog, dsc.t under
one invocation, is lawful. Rule for deter-
mining this with restpect to dogs. — IF a dog
bo lot slip at game, and tako and kill it and
afterwards take and kill other game, both
arc lawful ; because the act of letting him
slip continues to operate, and is not termi-
nated until after the taking of the second
game ; this caso being similar to that of a
person shooting at an anijmal with an arrow,
which not only his and kills it, but also
hits and kills another. If, on the cntrary,
the dog, after killing the first game, lie
down upon the ground and rest for a long
time, and then, some other game passing by,
he rise up and kill it, it is not lawful to eat
that other gamo ; because when the dog lay
down and took rest, he thereby determined
tho act of letting him slipssince his sitting
down was with a view to take rest, and not
to deceive tho game : in opposition to what
was before recited.
And hawks. — IF a hawk, being let slip
(cast off) at game, first porch upon some, —
thing, and afterwards, going in quest of the
game, take it and kill it, it is lawful to eat
it. This, however, proceeds on the supposi-
tion of the hawk neither tarrying long, nor
with a view to rest, but merely a short time,
and with a view to surprise her prey.
Game is not lawful when caught (by a
hawk, <fce.) independent of the act of the
hunter — IF a trained h»wk catch game and
kill it, and it be not known whether any
person let her slip at such game, it is then
unlawful to eat it ; because in this case a
doubt exists with respect to the letting slip ;
and game is not lawful unless the animal
which takes it b o let slip at it.
It is requisite to its legality (when cOfught
dead) t)ta>t blood have been drown from it. —
IP game be strangled by a dog, and not
wounded, it is not lawful to eat it ; because
the wounding of it is a condition of its
legality, according to the Zahir Rawayet
(as has been before mentioned) ; and this
condition implies that where merely particu-
lar members of the game are broken by the
dog it is not lawful to eat it.
Game is rendered unlawful by the con-
junction of any cause of illegality in the
catching of it. — IF a trained dog be assisted
place to placo upon a sort of litter. When
tho hunters have approached within sight of
their game, they unhood the panther and
cast off his chains, and he instantly springs
at his prey, if within his reach, or if other,
wise, practises a variety of stratagems to get
near to it,
BOOK XLVil.]
HttNTTNG
627
in killing tho game by a dog that is not
trained, or by a dog belonging to a Magi an,
or by one upon which Iho invocation had
boon wilfully omitted, in that case the game
is unlawful ; because two causes are hero
united, namely, a cause of legality, and a
cause of illegality, and caution dictates a
preference to the cause of illegality.
Game, hunted down by any person not
qualified to perform Zabbah i# unlawful. —
ANY person not permitted to perform Zabbah
(such as an apostate, a Mohrim, or a person
who wilfully omits the invocation) is the
same as a Magian with res poet to letting
loose an animal of tho hunter tribe.
IF a dog, without being let slip, should of
himself pursue game, and a Mussulman
repeat the invocation, and then make a
noiso and incite the dog to run faster, and
the dog catch the ga mo, it is in that case
lawful to eat it.
(fame killed at a second catching of it
(either by the same, or a second dog) is lawful.
— \v a Mussulman, having repeated tho
invocation, let slip his dog at game, and the
dog having pursued and caught the game
and thereby rendered it weak, lot it go, and
afterwards catch it a second time and kill
it, it is in that case lawful to eat it,— and
NO likewise where a Mussalman lets slip two
dogs, and one of them renders tho game
\voak, and the other kills it;— and also,
where two men lot slip their dogs (that is,
each of thom one dog), and one of the dogs
renders tho game weak, and the other kills
it. In this last case, however, the game is
1 ho property of him whoso dog rendered it
weak ; because he deprived it of the quality
of game, as ho disabled it from running.
Section II.
Of shoot Ing Game with an Arrow.*
(lame slain by a hunter shooting <fcc. at
random, on hearing a noise, is lawful , pro-
vided the noise proceed from game*— IF a
person hear a noise, and, imagining it to bo
that of game, shoot an arrow, or let slip
his dog or hawk and in either ease game bo
killed, and it be afterwards discovered that
the noise did actually proceed from game, it
is then lawful to eat the grume so killed by
the arrow, dog, or hawk, whether it were
the ga me of which the noise was heard, or
not ; because the object of the hunter was
merely to game of whatever kind. This
is according to the Zahir Rawayet,— It is
related as an opinion of Aboo Yoosaf, that
a hog is in this case an exception ; — in other
words, if it be afterwards known that the
noise proceeded from a hog, the game killed
by the arrow, hawk, or dog, is not lawful ;
because a hog is in an excessive degree itn-
* The title of this section, in the Arabic
version, is simply Rama, signifying the use
of any missile weapon whatever.
pure ; — whence it is that no part of it is
rendered allowable by hunting : — contrary
to other quadrupeds, for of those the skin
by their being hunted, is rendered lawful
Ziffer has likewise excepted al those animals
of which the flesh is not fit for eating, inas-
much as the hunting of those is not with 4
view to render them lawful.
Game shot by an arrow aimed at an
other animal is lawful.— IF an arrow be-
shot at a bird and hit other game, and
the bird shot at fly away, without its
being known whether it was wild or tame,
the game is in that case lawful, because
tho probability is that the bird was a
wild one. If, on the contrary, an arrow
be shot a ca'mel, and hit game, and the
cajmel having escaped, it be not known
whether it was a wild one or otherwise, the
game in that case ia not lawful, because the
natural condition of a camel is that of tame-
ness and attachment to man.— If, on the
other hand, an arrow be shot at fiah or
locusts, and hit game, such game is lawful
in the opinion of Aboo Yoosaf, according to
one tradition, inasmuch as it is game : but
according to another tradition it is unlawful;
because hunting is equivalent to the per-
formance of Zabbah, which is not requisite
with respect to fishes and locusts.
IF a person, hearing a noise, and imagin-
ing it to be that of a man, should in conse-
quence shoot an arrow, and kill game, and
it be afterwards discovered that the noise
proceeded from the game, in that case the
game so killed is lawful ; because, when it
actually proves to be game, the imagination
of tho person who shoots is of no conse-
quence.
Invocation must be made on the instant of
-shoot i tig ; but if the animal be taken alive, it
must still be slain by Zabbah.— lv a hunter,
upon shooting his arrow, repeat the invoca-
tion, and the arrow wound and kill the game
it is lawful to cat it ; because the shooting of
an arrow along with tho invocation, and tho
wounding of the animal, is equivalent to the
performance of Zabbah. Nevertheless, if the
animal bo taken alive, it is incumbent to
slay it by Zabbah, as has been already set
forth in the first section.
Game wounded, and afterwards found
dead by the person who shot, is lawful.—
IF an arrow hit game, and the game fly away
with the arrow until it disappear, and the
hunter go in search of it, and find it dead, it
is in that case lawful to eat it. If, on the
contrary, he should not follow or go in search
of it, and afterwards happen to find it dead,
it is not in that case lawful ; because it is
related that tho Prophet held it abominable
to eat that ga,me which disappeared from the
sight of the bowjnau ; and also, because there
is a possibility that it may have died from
some other LMUSO.
lTnleP9 he then ditcitrir another wound
upon it.-~\v the huuti-i* above mentioned
find another wound in the game besides that
of his arrow, it is not lawful to eat it,Mv;>t>
628
HOTTING
[VOL. IV
withstanding he may have continued in the
search of it until ho found it ; because in
this case two causes are conjoined, — on6 of
illegality, namely, the other wound, — and
one of legality, namely, the wound of his
arrow ; and it is the established custom to
give the preference to the cause of illegality.
Moreover, caution is easily observed in this
case, as it is an uncommon one. All that
has been above recited relates to the shoot-
ing of an arrow ; but it is equally applicable
throughout to the letting slip of a dog, or so
forth.
Game which, being shot, falls into water,
or upon any building, <fcf., before it reaches
the ground, is unlauful. — IF a person shoot,
at game with an arrow, arid hit it, and it fall
into water, or upon the* roof of a house, or
some other eminence, and afterwards upon
the ground, it is not lawful to cat it; because
the animal is a in this case a Mootradeea, the
eating of which is prohibited intho KOU.AN;
and also, because there is a suspicion that
the death may have been occasioned by the
water, or by the fall from the eminence and
not by the wound.*
Rule irith respect to trfttrr-foirl.—lv a
water-fowl be wounded, tuid the member
wounded be not a part under water, it is
lawful, — whereas, if it be a part under water,
it is not lawful, in the same manner as a
land bird, which being wounded falls into
water.
Qam?< slain by a bruise, without a wound,
is wot lawful. — (iAMK hit (stunned) by an
arrow without a sharp point is unlawful, as
it is so recorded in the traditions. It is to
be observed, moreover, that the wounding of
game is a condition of its legality; because
a Zabbah Iztiraree cannot otherwise be
established, — as has been already mcn-
tioned.f
GAME killed by a bullet from a cross-bow
is not lawful, as this missile does not wound,
and is therefore like a blunt arrow. A stone,
also, is subject to the same rule, as it does
not wound: — and garnX is also unlawful
when killed by a great heavy stone, not-
withstanding it be sharp ; because there is a
probability that the game may have died
from the weight of the stone ; and not from
the sharpness of it. If, however, the stone
be sharp, and not weighty, the game killed
by it is lawful, as it is then certain that it
must have died in consequence of a wound
from it.
GAME killed by a small pebble stone, and
of which no part has been out by the stone,
* Amidst such a mass of frivolous absur-
dity* the translator thinks it unnecessary to
offer any apology for the o/mission, in this
place, of a long discussion still more futile
than any thing which has gone before.
t From this, and various preceding pas-
gages, it appears that it is requisite to draw
blood in order to the rendering game lawful.
is not lawful, because in this case the game
is bruised and not wounded. If, also game
bo beaten by a stick or piece of wood until
it die, it is not lawful, as the death is then
occasioned by the weight of the stick or
piece of wood, and not by any wound: yet
if, in his case, the stick or piece of wood,
because of their sharpness, occasion a wound*
there is no impropriety in eating the game*
as the stick and piece of wood are then equi!
valont to a sword and spear. The general
rule, in short, in these cases, is that when
it is known with certainty that the death of
the game was occasioned by a wound, it is
lawful food ; but unlawful where the death
is known with certainty to have been occa
sioned by a bruise, and not a wound - and
that, in case of the existance of a doubt
(that is, where it is not certainly known
whether the death was occasioned by a
bruise or by a wound), it is then also unlaw-
ful, from a principle of caution.
IF a person throw a sword' or a knife at
same, and the game be struck by the handle
of the sword, or the back of the knife, it is
not lawful; whereas if struck by the edzc
and wounded, it is lawful. 8 '
Case of cutting (^ff the head of an animal
—IF a person out oil' the head of ft goat, it
is lawful to eat it, as the- jugular veins have
been cut through ; but it is nevertheless
abominable. If, however, a person perform
this action by beginning with the spine so
as to occasion the death of the anitmal before
the jugular veins bo cut, it is not lawful •
but it is lawful if the animal do not die
until after the jugular veins are cut.
A Marian, an apostate, or an isolator arc
not qualified to kill gam?.— GAME killed by
a Magian,an aposta-te, or a worshipper of
images, is not lawful. becuu8e they are not
allowed to perform Zabbah (as has been
already explained in treating of that sub-
ject), and Zabbah is a condition of tho
legality of game. H is otherwise with re-
spcct to a Christian or a Jew, because, as
their performance of a Zabbah Ikhtiarco is
lawful.it follows that their performance of
a Zabbah I/tirarec must also be lawful.
Case of gam* wounded by one person, and
then slain by another. — Jv A person shoot an
arrow at game, and hit it, without rendering
it so weak as to prevent it from running,
and in that statn another person shoot at it',
and kill it, the game is tho property of the
second hunter, because he was the person
who took it, and the Prophet has said,
"Game belongs to him who takes it." If,
on the contrary, the first hunter render it
too weak to run, and another person then
kill it, it is in that case tho property of the
first hunter. Nevertheless, he must abstain
from eating it, as there is a probability that
it may have died in consequence of the
second wound ; and as it had not the power
of running after the first wound, it ought
to havo boon slain by a Zabbah. Ikhtiaree, no
regard being, in such an instance, paid to
the Zabbah Iztiraree, in opposition to the
BOOK XLVIII.— CHAP, t]
PAWNS.
629
former case. — This prohibition, however,
against eating the game, proceeds on the
supposition of its being in such a con.
dition as to induce us to believe the con-
tinuance of its existence possible ; since
under these circumstances its death is re-
ferred to the second shot : but if the first
wound be such as to render the continuance
of its existence impossible (as if it have as
little life in it as an animal with its throat
cut, having, for instance, had its head cut
off), in that case it is lawful to oat it, as its
death is not then referred to the second shot
it being at that period in a state equivalent
to annihilation. If, however, the first wound
be such as to render the survival of the
game impossible, and there nevertheless be
more life in it than in an animal with its
throat cut (as if, for instance, it bo capable
of living one day), in that case, according
to Aboo Yooaf, it is not rendered unlawful
by the seoond shot, because such a degree of
life (in his opinion) is of no effect ; but ac-
cording to Moha-mimed it is unlawful, as such
a degree of life (in his opinion) is of effect.
IN the foregoing case, the second hunter
is responsible to the first for the value which
the game bears after receiving the first
wound ; because he (the second hunter) has
destroyed game the property of the first
h unter (who became tho proprietor of it in
consequence of his wounding it, and thereby
incapacitating it from running) ; and the
game is, by such wound rendered defective
and in all cases of responsibility for destruc-
tion of property a regard is paid to tho tinnc
of the destruction. The compiler of the
Heday a remarks that in this case there is a
distinction; — -in order words, responsibility
takes place whore it is known that the game
in question died in consequence of the second
wound (that is, where the wound of the first
hunter was such that the anipaal lived after
it, — and tho wound of the second hunter
such as to destroy the existence) ; and tho
second hunter is accordingly responsible for
the value of tho game, in its wounded and
defective, not in its unwounded and perfect
state ; in the same manner as where a person
kills the sick slave of another. If, however,
it bo known that the game died inconse-
quence of tho first wound, or if it bo
uncertain of which wound it died, Moham-
med has said, in the Zeeadat, that it
incumbent unpon the second hunter, first to
pay a compensation for the damage ho may
have occasioned to the game by the wound ;
and, secondly, to pay a compensation for
half the value which the game boro after
receiving both wounds ; and, thirdly, to pay
a compensation of half tho value of the flesh.
The reason for the first compensation
that the second hunter, having occasioned
damage to an animal which was the property
of another, is bound, in the first instance, to
make good the amount of that damage. The
reason for the second compensation is that,
as the animal died of both wounds, the
second wound must have been the immediate
cause of its destruction ; and as it was at
bhat time the property of another person, it
s incumbent upon him to make a compensa-
tion for half the value which it bore after
•oceiving both wounds, as the first wound
did not proceed fro m him, (With respect t<
bho damage occasioned by the second wound
having paid it before, he is not required t<
pay it again.) The reason for tho third
compensation is that, as the game, after
receiving the first wound, was in such a
state as to have rendered it lawful by a
Zabbali Ikhtiarco, if it had not received the
second wound, it follows that the second
hunter inconsequence of the second wound,
did render unlawful half of the flesh with
respect to tho first hunter. He is only re-
quired, however, to pay a compensation for
one half of the flesh, as he paid the other
half before in as much as he paid half the
value which included the flesh.
Case of gam?, first wounded, and then
killed by the same person. ~-Iv, instead of
two persons shooting the game, one person
shoot tho sa-mc game twice, the law is then
the same with respect to the illegality of the
game as when it receives two wounds from
two different persons ; —this being similar
to where a person, having shot game upon
any eminence, and rendered it weak and
fcoblo, afterwards shoots it a second time,
and brings ifc to the ground,— in which case
the game so killed is unlawful, inasumch as
the second wound is tho cause of illegality ;
and so also in the case in question.
All animals may be hunted. — THE hunt-
ing of every species of animal is lawful
whether they bo fit for eating or otherwise,
because the legality of hunting has been
absolutely declared in the KORAN without
restricting it to animals fit to eat. Another
reason is, that the hunting of animals not
fit for eating may proceed either from a
desire to obtain their skin, their wool, or
their feathers, or from a wish to exterminate
them on an account of their being mischievous
or hurtful ; and all these motives arc laud-
able.
BOOK XLVIII.
OF RA11N, OR PAWNS.
Chap. I.- Introductory.
Chap. II. — Of Things capable of being
pawned ; and of Things for which
Pledges may be taken.
Chap. III.— Of Pledges placed in the
Hands of a Trustee.
Chap. IV.— Of the Power over Pawns ;
and of Offences committed by 01
upon them.
CHAPTER I.
Definition of Rahn.— RAHN literally signi-
fies to detain a thing on any account
t>AWNS.
[VOL. IV
ever. In the language of the LAW it means
the detention of a thing on account of a claim
which may be answered by moans of lhat
thing; as in the rase of debt. — This pacticc
is lawful, ftnd ordained ; for the word of
GOD, in the KORAN, says, GIVE, AND RE-
CEIVE PIEDOES ; " — and it is also related,
that the Prophet, in a bargain made with a
Jew for grain, gave his coat of mail in pledge
for the payment. — Besides, all the doctor
have concurred in deeming pawn legal ; and
it is, moreover, an obligatory engagement,
and consequently lawful, in the same manner
as bail.
Pawn is established by declaration and ac-
ceptance ; and confirmed by the receipt of
the pledge. — CONTRACTS of pawn are estab-
lished by declaration and acceptance, and
are rendered perfect and complete by taking
possession of the pledge. — Several of the
learned have said that the contract is com-
plete immediately upon the declaration ; for
as it is a deed purely voluntary, it therefore
obtains its completion from the voluntary
agent alone ; as in eases of gift and alms.
Tho seisin of the pledge is, nevertheless,
absolutely requisite to the obligation of the
dncd, as shall be shown in its proper place.
Malik has said that a contract of pawn be-
comes valid and binding immediately upon
the concurrence of the partie* ; because they
relate to the property of both, and are con-
sequently similar to'salo. — On« of the argu-
ments -idvanced by our doctors is, the text
of the KORAN, above quoted ; and another
argument is, that as the act of pledging is
purely voluntary (whence it is that, there is
no compulsion on tho pawner towards the
act), it must therefore bo effectually con-
cluded, in the same manner as in theca.se
of legacies : — and a contract of pawn can
only bo effectually concluded by the seisin,
in the same manner as as a legacy *s effectually
concluded by the testator dying without
having receded from his bequest. It is to be
observed, that if the depositor reUquish the
pledge to the pawnee, hi,s so doing is equiva-
lent to an acceptance; in other words, his not
obstructing the pawnee from taking possession
of the pledge is equivalent to his actually
investing him with the possession, and is a
sufficient proof of his having so done. This
is recorded in the Zahir Kawayot ; and the
reason of it is«, that as the seisin of the pledge
is sanctioned in virtue of the agreement, it
therefore resembles the seisin of a thing sold.
It is recorded from Aboo Yoosaf, that the
seisin of a movable pledge can only be ac-
complished by the laying hold of and remov-
ing it, not by the pawner'* merely relinquish-
ing it, as above mentioned ; for the aeisin of
a pledge is an occasion of responsibility
from the first, in the same manner as usurpa-
tion. The former is, however, the better
opinion. .
Upon the pawnee taking possession oj the
pledge, the contract becomes binding. — UPON
a person receiving a pledge which is distin-
guished and denned (that is, unmixed and
disjoined from the property of the depositor)
the acceptance being then ascertained, the
contract is completed, and consequently
binding. (Until, however, the seisin actually
take place, the pawner is at full liberty either
to adhere to, or recede from the agreement,
as the validity of it rests entirely upon the
seisin, without which the end and intention
of a pledge cannot bo answered).
And he [the pawnee] is responsible for the
pledge — UPON the pledge, therefore, being
delivered to the pawnee, and his taking
possession of the same, he becomes answer-
able in case of its being destroyed in his
hands. Shafei maintains that a pledge being
a trust in the hands of the pawnee, if it bo
destroyed in his possession still he does not
on that account forfeit his due; because it is
recorded in the traditions, that "no pledge
shall be distrained for debt, and the pawner
shall be liable for all risks," moaning (ac-
cording to Shafei), that if the pledge bo
destroyed, still the debt is not annulled on
account of any responsibility arising there-
from ; — and further, because a pledge being
merely a testimony, the loas of it docs not
annual the debt, seeing that a debt ytill exists
after the loss even of a written bond ; and
reason of which in, that the use of taking such
.1 testimony is to add greater security to tho
pawnee's debt and therefore if, from the
dec'ty or destruction of tho pawn or tcsti-
raoncy, the debt of the pawnee were cancelled,
it would bo opposite to tho spirit of tho
agreement, since it would admit a possibility
of the pawnee's right becoming extinguished,
a thin i; repugnant to conservation and secu-
rity. The arguments of our doctors upon
this point are two fold. — FIRST , a tradition
of the Prophet, who once decreed the claim
of a pawnee to be annulled, on account of
tho death of a horse which ho had in a pledge
(although, indeed, several of tho learned, in
their comments on this tradition, have re-
marked, that it was made at a time when
the value of the horse could not be ascer-
tained).— SECONDLY, all the companions of
the Prophet, and their followers, havo de-
clared a plego to be a subject of respon-
sibility ; that is to say, that if it decay in
the hands of the pawnee, he sustains the
loss. — With respect, moreover, to the asser-
tion of Shafei, that "a pledge is a trust," it
is inadmissible, aa being in direct contradic-
tion to the concurrent opinion of the com-
panions above-mentioned. With respect,
also, to the tradition adduced by him as an
argument, the real meaning of it is, "that a
pledge cannot be completely seised, so as to,
render it the absolute property of the pawnee
in the room of his other claim," an explica-
tion which Koorokhee has transmitted to us,
as delivered by former sages. — As, moreover
the pawnee is entitled to take oossession of
the pledge as a security for his claim, and to
detain it (for Rahn, in its literal sense,
signifies detention), it necessarily follows
that a pledge is not a trnst.
Which he is entitled to dftain until he
BOOK XLVIIT.— CHAP. I.]
PAWNS.
631
receive payment of his debt. — In Rhort, in the
opinion of our doctors5!, a contract of pawn
requires that tho pledge ho continually
detained in the hands of the pawnee in lieu
of his debt, in this way, that it remain in
his possession as a security for the fulfilment
of his claim :— whereas, in the opinion of
Shafei, the claim of the pawnee is connected
with tho substance of the pledge, as a satis-
faction for his claim,— in this way, that he
may sell it, and thereby ohtain a discharge, —
it being until such sale a trust reposed in |
him, and tho property of tho depositor ; — and
agreeably to these different tenets several
cases occur concerning which there is a^ dis-
agreement between our doctors and Shafei.
Without admitting the pawner to any use
Of if.— FOR instance, — if the pawner be
desirous of resuming his pledgs for a short
time, that he may enjoy tho use of it (as in
the ease of taking milk from a cow, or so
forth), he is not so allowed, according to our
doctors, unless by the consent of the pawnee
as the object of the agreement of pawn
(namely, a constant possession) would by
that means be entirely defeated,— whereas,
according to Shafei a pawner may even
forcibly take back his pledge for a temporary
enjoyment of the use, nor can he be prevented
from this ; because (in his opinon) a pledge
may be sold conformably to the nature of the
agareemont ; and the resumption of it to-
wards an enjoyment of the usufruct cannot
be considered as a subversion thereof.—
(More cases of this kind shall be exhibited
in the sequel.)
The debt to which the pawn is opposed
must be actually due.— A CONTRACT of pawn
is not valid unless opposed to a debt due at
that time ; for the end of such contract is to
establish possession in order to the obtaining
of payment : and the obtaining of payment
presupposes an obligation of debt.
The responsibility or the pledge extends to
the amnnt of the debt owing to the pairnre.
— A PLEDGE is insured in the possession of
th pawnee* to whatever is the smallest
amount,— the debt of the pawnee, or the
value the pledge bore at the time of its being
deposited. Thus if a pledge equivalent to
the atnout of the debt perish in the pawnee's
hands, his claim is rendered void, and he
thereby, as it were, obtains a complete pay-
ment. If, on the contrary, the vlaue of the
pledge exceed the amount of the debt, the
excess is in that case considered, as a trust,
and the whole of the pawnee's claim is
annulled, on account of the deca}' of that
part of the pledge which is equivalent to
the amount thereof ; and the remainder (the
excess), as being held in trust, is not liable
to be compensated for, and consequently the
pawner sustains the loss of it. If, on the
other hand, the value of the pledge be leas
than the debt, the pawnee forfeits that part
* In other words. ''The pawnee is respon-
sible for it,"
of his claim only which is equal to tho value
of the pledge, and the balance, or excess,
rnpst be paid to him by the pawner. Ziffer
maintains that a pledge is liable to be com-
pensated for according to its value ;— whence
if a pledge of the value of one thousand five
hundred dirms at the time of delivery be
destroyed, and tho debt of the pawnee bo one
thousand dirms, the pawner has a claim upon
the pawnee for the difference, namely, five
hundred dirms.— "lfin arguments upon this
point are twofold.— FIRST, a saying of Alee,
'•Tho pewner and pawnee shall mutually
restore to each other the excess, whether the
pledge exceed in value tho debt, or the debt
the pledge.'* — SECONDLY, the amount in
which tho pledge exceeds tho debt being (as
well a« tho sum equivalent to the debt)
given in pledge, the excess is of consequence
a subject of responsibility as much as that
part which is equivalent to the debt. Henoe,
when tho debt is annulled, a restitution must
be made of the surplus. The opinion of our
doctors upon this subject is adopted from
Omar Farook, and Abdoola-Ibn Masaood.
They moreover, argue, that as the pledge
was taken possession of purely for the pur-
pose of obtaining payment it is therefore a
subject of responsibility only in that degree
of value from which tho payment of the debt
might have been made, as in the ease of a
real payment, the surplus being pawned
merely from necessity (as it was impossible
to have pawned tho exact value of the debt),
and therefore not demanding restitution.-^
With respect, also, to the saying of Alee (as
quoted by Ziffer), the meaning of it is, that
the parties shall mutually return the excess,
in case of sale (that is to say, if the pawner
sell the pledge), not in case of destruction,
for he has elsewhere declared the surplus to
he held by the pawnee in trust.
The pawnee, may demand payment of Ids
debt, and imprison the pawner in case of
contumacy. — Tt is lawful for the receiver of
a pledge to made a demand of his debt, and
even to imprison the pawner in case of
refusal ; because the claim still exists after
the receipt of the pledge, which is not con-
sidered as a fulfilment, but merely as a pre-
servative of it. The pawnee, therefore, is
not prohibited from making the demand;
and if the circumstance of the evasions and
delays of the pawner be made known to the
Kazee, he must imprison him, as has been
formerly explained.*
It is required of the pawnee, before pay*
ment to produce the pledge. — WHENEVER a
pawnee demands payment of his debt, it is
requisite that the Kazee order him first to
produce the pledge ; because as he possesses
that for the purpose of obtaining payment,
it is not lawful for him to take his due at the
same time that ho retains possession of the
pledge, which he holds as a security ; since
* Tn treating of the duties of the KlZEl,
(See Vol. II., p. 338.)
682
PAWNS.
[VoL. IV
if in such case, the pledge were to perish in
his hands, a double payment would bo in-
duced, which is inadmissible. And when
the pawnee shall have produced the pledge,
the Kazee must order the depositor first to
'ischarge the debt, in order to ascertain the
pawnee's right, in the same manner as the
right of the pawner is ascertained, to the end
that both may be placed upon an equal foot-
ing : as in the case of bargains, whore the
seller having produced the goods, the buyer
then lays down the pur chase- money.
But if the demand payment in a distant
place, he is not required to produce it unless
this can be done without expense.— IF the
pawnee demand payment in a city different
from that wherein the contract of pawn was
concluded, and the pledg bo of such a nature
as neither to require charge of carriage or
expense, the same rules which have been laid
down in other cases hold good in this ; as the
place for the surrender of a pledge of this
kind being entirely immaterial and indif-
ferent, the doctors have therefore assigned
no particular rules or conditions regarding
it. If, on the contrary, the pledge be of such
a nature as to require carriage and charges
of removal, the pawnee is not desired to
prodcuo it ; for such a requisition would
necessarily oblige him to have it carried
from place to place. It is, moreover, in-
cumbent on him to relinquish the pledge to
the pawner, and to allow him to resume it ;
but he is not required to remove it from one
place to another, as that would bo a loss to
hitt which he had not stipulated.
The pledge may be sold, at the desire of
the pawner ; and the pawnee cannot after-
wards be required to produce, it. — TF the
pawner empower the trustee * to sell his
pledge, and he sell it accordingly, cither for
ready money or on credit, it is lawful, the
power of the" pawner to sell it being indis-
putable. If, therefore, the pawnee after-
wards demand payment, he is not desired to
produce the pledge, ns that in such case, is
not in his power. —The same rule also holds
where the pawnee, at the instance of tho
pawner, having sold the pledge, does not
possess himself of tho purchase- money ; for
then the Kazee may compel the pawner to
discharge his debt, without requiring tho
pawnee to produce the pled<^> which be-
cause of its having been .sold at the desire of
the pawner, has become converted into a
debt, — -wherefore the pawner himself did, as
it were, pawn the purchase- money (that is,
the debt). — -If, on the contrary, the pawnee
possess himself of tho purchase-money, he
* Arab. Adil ; meaning (literally) an up-
right person, — one in whose hands tho parties
mutually agree that the pledge shall remain
until it be redeemed. The translator sub-
stitutes the term trustee throughout this
book, because (although not the literal mean-
ing of Adil) it best expresses the sense of the
author,
must in that case be required to produce it
upon demanding his debt ; for as the money
is a commutation for the pledge, it is there-
fore a substitute for it. It is to be observed,
however, that in tho above case the pawnee
has a right to the possession of the purchase-
money ; for as he himself made the sale, the
rights of the cantract consequently appertain
to him.
He must produce it on receiving a partial
pamentt as well as in case of a complete
discharge. — IN the same manner as the
pawnee is required to produce the pledge
when he is about to receive payment of his
debt in full, he is also required to produce it
when he receives part payment, provided the
term stipulated be expired ; because his thus
producing it can be of no prejudice to him)
whilst at the same time it serves to dissipate
any apprehension of tho loss of the pledge
which may have arisen in the mind of the
pawner. The pledge, however, is not to be
restored until a complete discharge be made.
If, also, the pledge should have been sold by
the pawnee, and the purchase-'inoney taken
possession of by him ho is required to pro-
duce such pur chase- money upon demanding
payment of his debt, or of part of it, in the
same manner as he is required to produce
the pledge itself, in case of its being extant,
as tho purchase-money is a substitute for the
pledge.
IF a person should, by misadventure, kill
a pawned slave, and the magistrate decree
tho value of such slave to bo made good by
tho Akilas of tho slayer within the term of
three years, the pawner must not be com-
pelled to discharge the pawnee's debt until
he (the pawnee) shall have produced the full
value of the slave ; for in this case, the
value is a substitute for the slave who was
in pawn ; and it is consequently incumbent
on the pawnee to produce the whole of his
value, in the same manner as he is required
to produce the whole pledge where it is
extant. Here, moreover, the pledge has not
become converted into value by any act of
the pawner : — -whereas, in the case formerly
stated (namely, where the pawnee sold the
pledge at the desire of the pawner without
possessing himself of the purchase-money)
the pledge was converted into debt by the
act of the pawner, since he invested the
pawnee with a power of disposal. There is
consequently an essential difference between
these two cases ; — whence it is that, in tho
present instance, it is incumbent on the
pawnee to produce the value received for the
slave, whereas, in the former case, he is not
required to produce the pledge, nor yet its
price, as of that he had never received pos-
session.
Cases in which he is not required to produce
it. — IF the pawner deliver the pledge into
the hands of a trustee, ordering him, at the
same time, to resign it in charge to some
one else than the pawnee, and he accordingly
do so, in that case the pawnee is not required
to produce the pledge upon demanding pay-
BOOK XLVIIL-CHAP. L]
PAWNS.
633
mont of his debt, for this is rendered im-
possible, from its not having been intrusted
to his care, but to that of another.— If, also,
the trustee, having committed the pledge
into the hands of one of his relations, should
then abscond, and the person to whom it
was given acknowledge, upon its being de-
manded from him, that "he had indeed re-
ceived it in trust, but was ignorant of the
real proprietor," the pawner may be com-
pelled to discharge his debt, without the
pawnee being required to produce the
pledge, as ho had never received it (and
the same rule also holds, whore the trustee
absconds, carrying the pledge along with
him, without its being known whither he is
gone).— If, on the other hand, the trustee
deny the goods entrusted to him to be a
pledge, assorting that "they are his own
property," tho pawnee cannot take anything
from the pawner until the contrary bo
proved ; because tho denial of the trustee is
tantamount to a destruction of the pledge
and when a pledge is destroyed, the pawnee
is considered as having received payment of
his debt, after which he is no longer at
liberty to claim it.
The pawner cannot reclaim the pledge on
the plea of selling it for discharge of his
debt.— IP the pawner demand a restitution of
the pledge with a view to sell it, and thereby
pay off his debt, still it is not incumbent on
the pawnee so to do, as tho contract of pawn
requires that the pledge be continually de-
tained in tho hands of tho pawnee until
such time as his debt be paid.— If, also, the
pawnor discharge the debt in part, still it
remains with the pawnee to keep possession
until he shall have received payment of the
balance ; but whenever a complete payment
is made the pawnee must be directed to
restore the pledge to the pawner, as tho
obstacle to his so doing no longer exist,
the claimant having obtained his duo.
The pawnee must restore what he has re-
ceived in payment, if the pledge perish in his
hands.— IF, after the discharge of tho debt,
the pledge should bo destroyed with the
pawnee, he must return tho money ho re-
ceived in payment ; for as, upon tho pledge
perishing in tho hand* of the pawnee, he
appears to have received payment in virtue
of his previous possession of it, ho therefore
appears to have taken payment twico, and
consequently must return what he has re-
ceived. In the same manner, if the pawner
and pawnee should, by mutual consent, dis-
solve the contract of pawn.tho pawnee miy,
nevertheless, keep possession of tho pledge
until such time as he receive paymont of the
debt, or exempt tho pawnor therefrom.
The contract is not dissolved until the
pledge be restored.— A CONTRACT of pawn is
not rendered void until the pawno? restore
the pledge to the pawner, according to the
prescribed mode of annulment.
The debt is discharged by the loss of the
pledge.- IF the pledge perish in the hands
of the pawnee, after the parties have in con-
<V?rt dissolved tho contract, his debt ia in that
case considered as discharged, provided the
value of the pledge be adequate to it, the
agreement being still held in force.
The pawnee is not entitled to use I At
pledge. — IT is not lawful for the pawnee to
enjoy, in any shape, tho usufruct of the
pledge. — If, therefore, a slave be pawned,
the pawnee must not employ him in service ;
if a house, he must not dwell in it ; and if
clothes, ho must not wear them ; — for the
right of the pawnee is in the possession,
not in tho use. — Neither is a pawnee autho-
rized to sell the pledge, unless at the desire
of the pawner.
Or to lend or let it to hire.— A pawnee is
not permitted to let out, or give tho pledge
in loan ; for as he ia himself prohibited from
enjoying any use of it, ho consequently is
not authorized to confer the power of enjoy-
ment upon another. If, therefore he do so,
it establishes a transgression : but a trans-
gression doea not occasion a dissolution of
the contract.
He may consign it in charge to any of his
family.- A PAWNEB may either watch over
tho pledge himself, or he may devolve the
caro of its preservation upon his wife, child,
or servant, provided they be of his family.
If, on tho contrary, he commit the care of it,
or resign it in trust, to ono who is not of
his family, he becomes the security, and the
person to whom ho gave it the secondary se-
curity. Concerning this, however, there is a
difference of opinion between Haneofa and
his two disciples ; for he does not consider
tho other person to be a secondary security;
whereas they have declared it to bo in the
option of tho pawnor to. make whomsoever
ho may please the secondary security.
// he transgress with respect to it, he is
responsible for the whole value. — IF a pawnee
commit any transgression* with respect to
tho plege, he must make reparation to the
whole amount of the value ; in the same
manner as in a case of usurpation ; for the
amount in which the value of the pledge
exceeds tho debt is a trust: and a transgres-
sion, with respect to a trust, renders the
person who commits it liable to make com-
plete reparation.
The use of the pledge is determined by the
pawner's mode of keeping or wearing it.-
IF a person pledge a ring, and the receiver
put it on his little finger, and it be after-
wards lost or destroyed, ho ia responsible,
as ho has transgressed in making use of
the pledge instead of using means for its
preservation : — and, in this case, the right or
left hand is ind;fferent, there being no uni-
form costom of wearing a ring invariably
upon either.- If, on tho contrary, the
pawnee wear tho ring upon any other than
his little finger, this is not considered as an
enjoyment of use, but as a moans of preaer-
* Such as converting it to his own use, &<r
(aa prohibited above).
PAWNS.
[Vot, IV
vation, as it is contrary to tho customary
mode of wearing a ring. — So likewise, if the
pawnee wear a sheet (which he has received
in pledge) after the customary mode, he is
responsible for it ; whereas, if he spread it
over MB shoulders, ho is not responsible.
If a person pawn two or three words, and
the pawnee sling them over his shoulder,
then, provided there be only two, ho bo-
cotne's responsible for their value in case of
their loss, but not if there bo three ; the
reason of which is, that amongst warriors
it is a frequent custom to sling two word si
on their shoulders in battle, but never to
sling three. t
IF a person pawn two rings, and the
pawnee put them both on his little finger,
and it appear that he was accustomed to
adorn himself in this manner, ho is liable
to make compensation in case they be by any
means destroyed ; but if tho contrary be
proved, he is exempt from any responsibility.
The expenses of conservation (of the
pledge) rest upon the pawnee ; and those of
subsistence upon the pai**er.--The rent of
the house wherein tho pledge is kept, as well
as the wages of the keeper, rest upon the
pawnee:— but if the pledge be a living
animal, and require a keeper and mainte-
nance, the expense of these must be defrayed
bv the pawner.— It is to be observed that
the wants of a pledge are of two kinds ;
I. such as are requisite towards the support
of the pledge and the continuance of its
existence :— II. Such as may bo necessary
towards its preservation or safety, whether
wholly or partly. Now, the absolute pro-
perty of the pledge appertains to the pawner,
the expenses of the first class taust therefore
be defrayed by him ; and as be has, more-
over, a property in the usufruct of the
pledge, its support and the continuance of
its existence for this reason also rest upon
him, being an expense attendant upon his
property;— in the same manner as holds in
the case of a trust. (Of this class are the
maintenance of a pledge in meat and drink,
including wages to shepherds, and so forth,
and the clothing of a slave, the wages of a
nurse for the child of a pledge, the watering
of a garden, the grafting of fig-trees, the
collecting of fruits. &c.) The expenses of
the second class, on the contrary, are incum-
bent on the pawnee ; because it is his part
to detain the pledge ; and as the preserva-
tion of it therefore rests upon him, he is
consequently to defray the expense of such
preservation. (Of the second class is the
hire of the keeper of the pledge ; and so
likewise the rent of the house wherein the
pledge is deposited, whether the debt exceed
or fall short of the value of the pledge.)—
All that is here advanced is according to the
Zahir Rawayet. It is recorded, from Aboo
Yoosaf, that the rent of tho house i* defrayed
by the pawner, in the same m inner ay main-
tenance, it being his duty to use every pos-
sible means towards securing the existence
of the pledge ; but that a Jual, or reward
for restoring fugitive slave, is of the second
class : for as tho pawneo is necessitated to
use every possible expedient to recover the
possession of tho slave, the reward, as being
connected with preservation, must be de-
frayed by him. This, however, holds only
with respect to such pledges as do not exceed
the amount of the debt ; for where the value
of the pledge exceeds the amount of the
debt, the pawnee must not be taxed with
the payment of the whole, but with such
share of it only as is proportionate to the
value of the pledge ; whilst the remaining
part, in proportion to the surplus, falls on
the pawner ; for the excess not being held
by the pawnee in pledge, but in trust, the
restitution of the salvo, in regard to tho exc-
cess, is, as it were, made to the absolute
owner, to whom, therefore, the surplus must
be charged.
But those, incurred by sickness, or by
offences must, be defrayed by both.—Tnn
expense of healing the wounds, of curing
the disorders, and of pecuniary expiations
for the crimes of pledges, are defrayed by
tho pawneo and pawnor proportionably to
the amount of tho debt, and tho excess of tho
value of tho pledge over the debt.
Taxes are defrayed by the pawner. — THE
taxes on pledges aro levied from the pawner
as they are necessary towards the subsistence
of his property.
Tithes (upon pawned land) have preference
to the right of the pawnee.—' THE tithe from
the revenue of tithe-lands held in pawn
precedes the right of the pawnee ; because
it is connected with both tho substance and
the property of the pledge, whereas the right
of the pawnee is connected with the property
of it only, not with the substance.-— Still,
however, tho contract of pawn is not invali-
dated in regard to the sum remaining after
the payment of the tithe, as the obligation
of tithe in no respect impugns the pawner's
right of property. It is otherwise where an
undefined part of a pledge proves the right
of another ; for in that case the contract
becomes null with respect to the remainder,
because this shows that the pledge was not
wholly the pawner's property.
// either party voluntarily defray what is
incumbent on the other he has no claim upon
him on that account.-~lv either party defray
any of the expenses incumbent on the other,
it is deemed a voluntary and gratuitous act.
If, on the contrary one of them should, by
order of tho Kazee, fulfil a duty incumbent
on the other, he has in that case a claim on
the other for so doing, in the same manner
as if he had done it at his instigation ; for
the Kazoo's jurisdiction is general : It is
recorded, from Hanoofa, that no claim can
be made on the other, notwithstanding the
expense be defrayed by order of the Kazee
unless he woro then absent. Aboo Yoosaf,
on the contrary, has said that a claim is
valid in both oases ; that is, whether the
other were present or absent.
BOOK XLVni.— CHAP. IT.]
PAWNS.
CHAPTER II.
OF THINGS CAPABLE OR BEING PAWNED ;
AND OP THINGS FOB WHICH PLEDGES
MAY BE TAKEN.
An indefinite part of an article cannot be
pawned.— IT is unlawful to pawn an inde-
finite part of anything. Shafoi maintains
that it is lawful.— On behalf of our doctors
two reasons are urged. FIRST, this disagree-
ment arises from the difference of opinions
regarding the object of pledges ; for accord-
ing to us, pledges are taken to be detained
with a view to obtain payment of a debt,
which cannot be effected in case the pledge
be an undefined part of property ; because
a seisin of things of that nature cannot be
made a real seisin being only practicable
with respect to things which are defined and
distinguished ; — whereas, according to Shafei,
the object of pledges is that the pawnee
may sell them to effect a discharge of his
debt ; and with this object pledges of the
nature above mentioned are not in any shape
inconsistent. — SECONDLY, it is an essential
part of the contact of pawn, that the pledge
be coiatantly detained in the hands of the
pawnee until the redemption of it by the
pawner ; a condition which cannot be ful-
filled with respect to pledges, of the above
nature ; for in such cases it would be neces-
sary that the pawner and the pawnee have
possession of the article alternately, whence
it would be the samo as if the pawner were
to say to the pawneo, " I pawn it to you
every other day."-— As, therefore, a constant
detention is in such case impossible, it fol-
lows that tho pledge of an undefined part of
anything, whether capable of division or in-
capable, is illegal.
Even to a partner in ike article.— JT is^ not
lawful to pledge any undefined part of joint
property, even to a copartner ; for, besides
that the detention of such pledges cannot be
made, the receiver would in such case retain
possession of it, one day in virtue of pro-
perty, and another in virtuo of the contract
of pawn, and thus he would hold it one day
in pledge, and another not.
// the pledge be rendered indefinite by any
supervenient act or circumstance ', the contract
of yawn is annulled. — A SUTERVENTFNT in-
definiteness in repugnant to the continuance
of a contract of pawn, according tn the Mab-
soot ;— in other words, if a person pledge a
piece of ground, for instance, and afterwards
desire a trustee* to sell the half thereof,
and tho trustee accordingly do so, the con-
tract of pawn no longer exists.— It is re-
corded from Aboo Yoosaf, on the contrary,
that a supervenient indefiniteneas does not
dissolve a contract of pawn, — In the same
manner as it has no effect in the case of
donations ;— in other words, if a person
bestow anything in gift upon another, and
Adfl. (See note, p. 632.)
afterwards retract the half, the gift still
re mains valid with respect to the other half.
—The reason for what is quoted from the
Mabsoot, as above, is that, in the oaae there
stated, the subject of the contract does not
exist as before ; and a subsequent circum-
stance, as far as it has a tendency to annihi-
late the subject of the contract, operates
equally as if it had existed from the begin-
ning : — -in the same manner as where a per-
son (whether knowingly or unknowingly)
marries within the prohibited degree, — It is
otherwise with gifts : for the effect of gift is
investiture with right of property ; and an
undefined part of a thing is capable of being
property. The reason, moreover, why seisin,
in the case of a gift, is requisite before the
right of property can bo acquired, is to pre-
vent the possibility of compulsion : for if
tho grantee should become proprietor of the
gift immediately upon its being offered, and
without taking possession, the giver (who
ought to act of his own accord) would then
be constrained to do that to which he has
not yet assented ; namely, to deliver up the
gift.
An article naturally conjoined to another
cannot be pawned separately.— IT is not law-
ful to pledge fruit without the trees which
boar it, crops without the land on which
they are produced, or trees without the ground
on which they stand ; for as the pledge, in
all these cases, has a natural connection with
an article which is unpledged, it is therefore,
in effect, indefinite, until such time as it
separated from that article. In the same
manner also, it is unlawful either to pawn a
piece of ground without the trees which are
produced upon it, a field without its produce,
or a tree without its fruit ; because, in these
casoa, ft mortgage is induced of an article
naturally conjoined with another which is
not pledge. In short, it is a rule that when
a pledges is joined to something not in pawn,
the contract it* not valid, since in such case
possession cannot be taken of it. Haneefa
has judged it lawful to pawn a piece of
ground without its trees ; for as the trees
have no connection with tho ground, except
in that part only frokn which they vegetate,
they may therefore bo cxcepted, together
with the particular spot on which they stand
It is otherwise when a person pawns the
court-yard of a house without the building
itself ; for then the part of the ground on
which the building stands remains unpledged,
whereas it is requisite that the whole of the
ground bo pledged.
Trees : however, may be pawned with the
immediate spots on which they grow, without
including the est of the land.— IT is lawful
to pawn trees, together with the particular
sports of ground on which they grow : for
here subsists a vicinity only with the pawner's
property, which is not repugnant to a con-
tract of pawn.— If, in this caae, there be
fruit upon tho trees, it is included in the
contract ; for as the fruit is an appendage of
the tree, because of the connection between
PAWNB.
(Vot.
them, it is therefore included in the contract
jta order tha<t the game may be valid.— It is
otherwise in the case of sale, for as trees may
be sold without their fruit, unless that lbe
expressly stipulated, it is not included in the
sale. It is also otherwise with respect to
valuables deposited in a house ; for these not
being appendages to the house are not in-
cluded in the pledge, unless they be expressly
stipulated. Grain, however, and herbs are
considered as included, in case of their
ground being pawned ; but not in case of
the sale of it. Buildings, also, and trees,
are included in the contract of pawn, when
the ground or villages to which they belong
are pledged. — A person may also lawfully
pawn a house, together with whatever it
contains.
A claim of right e#tobli*h/ed in a separable
pan of a pledge does not afiyiul the contract
with respect to the remainder.-— If another
person prove his right to part of a pledge,
and the remaining part be of such a nature
that it might with propriety be distinctly
pawned (as whore another proves his right
to the court-yard only of a pledged house,
without the building), the contract still sub-
sists with respect to the remaining pint ; in
other words, if the residue bo destroyed in
the hands of the pawnee, his debt is divided
between such residue and the value of what
had proved tlie right of another : and the
proportion which the residue bears to tho
whole is struck off from the debt, and that
which the other payt bears to the whole re-
mains due from the pawner.* If, on the
contrary, the residue be of such a nature
that it cannot be separately pawned (as
where another proves a right to a pledged
house without its court-yard), the contract
of pawn becoaaes absolutely void ; for it
cannot operate upon any thing except what
remains after deducting what has proved the
right of another ; and Such residue is inca-
pable of bcinig pawned.
Occupancy, so as to obstruct a delivery of
the pledge to the pawnee, prevents hi& becom-
ing responsible for ^.~!T is to be observed
that the continuance of the pawnor, or of
his goods, in the house which he has pledged
are obstructive of a regular delivery of tho
house :— in other words, if a person pledge
or mortgage his house, and remain himself,
or keep his goods therein, a delivery to the
pawnee is not established until he evacuate
it, or withdraw his goods therefrom, whence,
if it be destroyed in the interim, the pawnee
is not answerable. — In tho same manner, the
continuance of any thing within a pledged
vessel is repugnant to the delivery of it ; and
so likewise the continuance of a burden on
a pawned quadruped, — whence the contact
is not complete until the burden be taken off
* Tho mode of calculation, in this ca.se,
will be exhibited in a note in tjio last section
Of this
as the animal otherwise continues occupied.
It is different where the burden is pawned
and not the anijnal ; for in this case the con-
tract is valid, and the burden is pledged im-
mediately upon the pawner delivering over
the animal, it being occupied by the burden,
not the burden by it ; in the same manner as
where thinigs contained in a house or vessel
are pledged without that house or vessel, — It
is otherwise, however, where a person pawns
a saddle or bridle upon a camel, and delivers
the camel to the pawnee; for in that case the
contract is not valid until the saddle or
bridle be taken off the camel and delivered
separately to the pawnee ; these being de-
pendents of tho camel, in the same manner
us fruit is a dependent of the tree : — whence
it is that (as lawyers have remarked) when-
ever a camel is pawned with a saddle of
bridle o.n it, these are likewise included in
the contract, although not particularly Speci-
fied.
Wedges cannot be taken fear trusts. — IT is
not lawful to take pledges for trusts, Su-ch
as deposit/?, loans, or Moaaribafc, or partner-
ship stook ; — in other words, if a person
comjnit his goods in trust to another, taking
a pledge for the same, it is invalid, as the
receipt of the pledge would subject the re-
ceiver to responsibility ; for if the pledge
were destroyed in his hands ; his claim
would be extinguished in a degree propor-
tionate to the value. In short, it is requisite
that something lie against the pawner of a
nature to subject him to responsibility, in
order that, opposed to it, the possession of
the pledge, in the even* of its destruction,
may subjdct the pa/wnce to responsibility
and operate as a discharge of his claim ;
but there is no responsibility with respect to
trusts.
Not for any thing not insured with the
holder of it. — IT is not valid to take a pledge
for articles which do not ejibject the holder
to responsibility, — su.ch, for instance, as an
article sold, and which still remains in the
hands of the seller ; for if the purchaser be
desirous of taking a pledge from the seller
to answer the delivery, it is invalid, an
article sold, not being insured in the hands
of the seller. (SUJ1, however, if tho article
sold perish in the seller's hands, his claim on
the buyer for the price ceases ; or, if he
should have previously received the price
from the buyer, ho must restore it). — With
respect, on the contrary, to articles which
subject the holder to responsibility that is,
those for which, when destroyed, thcholderis
responsible, — for a similar, if of the class of
similars ; — or for the value, if of a different
description. — such as usurped property, tho
consideration for Khoola, the dower to a wife
and tho composition for wilful murder), it is
lawful to take pledges for them, as respon-
sibility attaches to all such matters, since if
the article be extant the delivery of it is in-
cumbent, or tho value if it be destroyed.
Opposing a pledge to such articles, therefore,
ig taking a pawn in security for tha$
BOOK
n.
PAWNS.
037
is itself a subject of responsibility, and is
consequently valid.
Nor a§ a security against contingencies.
— IT is nof lawful to take a pledge as a secu-
rity against contingencies ; — in other words,
if a person sell an article and receive the
price, and the purchase, from an apprehen-
sion that the property might afterwards
prove the right of another, and that he
might thereby be rendered liable to a loss,
should on that account demand a pledge from
the merchant securing him against such a
circumstance, it is invalid ; for it is an estab-
lished maxim that a pledge is to be taken as
a security for the discharge of a claim then
extant ; and in the above case the claim does
not exist, but is only what may possibly
happen. If, therefore, a pledge be in such
a case taken, it is considered as taken in
trust, and not in pawn, and is in no respect
subject to the laws of pledges. In a similar
manner, if a person deposit any thing in
pledge with another, in security for any
thing which may in future be due from him,
it is invalid. — It is, indeed, otherwise in the
case of a promised debt ; — as where a person
gives a pledge to another on the strength of
his promising to lend him one thousand
dirms, and the other takes the pledge and
promises to lend the money, and the pledge
perishes in his hands ; for in this case ho is
responsible in proportion to the su»m pro-
mised, in the same manner as if it had been
actually paid, the premise of debt being con-
sidered as an actual existence of it, for this
reason, that it was made at the earnest desiro
of the borrower.
Case of pawns in bargains of Sillim or Sirf,
— IF a person, having bespoke goods of a
merchant, pawn something in security for
the pavmont of tho purchase-money, or have-
ing sold silver to a banker, receive a pledge
in security for the price, or if a merchant
give a pledge to a person who has bespoke
goods from him, as a security for his de-
livery of thefrrt, — the contract is valid. Ziflfer
has said that the contract, in these instances,
is not valid, inasmuch as the object of the
pawn in such cases is that it may be a security
for the discharge of the several claims,
namely, the purchase-money, of tho goods
bespoken, the value of the silver sold to the
banker, or the goods bespoken, — -which is not
allowable, because an exchange is here in-
duced of things not delivered for things of a
different species ; and an exchange of such
things, previous to seisin being obtained of
them is unlawful. The argument of our
doctors is, that as a parity of species betwixt
the things which were to be delivered, and
the pledge, holds good with respect to their
worth, by means of their worth the engage
ment may be fulfilled ; — and the possession
of a pledge induces a responsibility in regard
to its worth, although with respect to its
substance it be considered merely as a trust.
—If, also, the pledge opposed to the price
of the article bespoke, or the value of the
Silver sold, be destroyed at the tjme of
making the contract (that is, before the
company in whose presence it was made
breaks up), the bargain is accomplished, and
the, pawnee or seller is reckoned to have re-
ceived his right ; because by the destruction
of the pawn he is virtually considered to
have received the price of his silver, or the
amount of money which was to have been
advanced. — -If, on the contrary, the buyeT-
and seller should have separated previous to
the destruction of the pledge, the bargain
becomes invalid ; because the receipt of the
price of the silver or the advance of money
for the goods at the time of making the bar-
gain (which is a condition), is not hero
established cither in reality or in the con-
struction of law.— If, moreover, a pledge
taken, in security for the delivery of the
goods bespoken be destroyed, the bargain is
completed, and the pawnee (who advanced
the money) is held to have received the
goods which he bespoke.
In the dissolution of a contract of Sillim,
the pledge remains as a security for the
advanced capital.— Iv the parties to a con.
tract of Sillim dissolve the bargain in a case
where a pledge has been given for the de-
livery of the goods, it still remains as a
security for tho refunding of the money
which hud been advanced, as that then
stands in lieu of the goods ; — in the same
manner as where goods are usurped, and
the Kazee having ordered their restoration,
a pledge is given for that purpose, and after-
wards the goods are destroyed, — in which
case the pledge remains a security for the
value of the goods.
And if it be lost in the advancer'* hands
his claim of restitution is annulled.— Iv, in
the above instance, the pledge be lost
after tho parties had agreed to annul the
bargain of Sillim, the bespoken article is in
that case considered as delivered, and the
purchaser (the advancer) has no further
claim. — It is, however, incumbent on him to
give to the seller as much grain as ho should
have received from him, in order to his re-
covering tho money he had advanced, — in
the same manner as where a person, having
sold a slave and delivered him to the pur-
chaser, takes a pledge in surety for the price,
—and they afterwards mutually consent to
annul he bargain, — in which case the seller
is entitled to retain possession of the pledge
as a security for the restoration of the slave ;
and if the pledge bo destroyed in his hands,
he is considered to have received the pur-
chase-money ; and it is incumbent on him to
pay the aum of the purchab e-money to the
buyer, and thereby recover his slave.
A freedmant a Madabbir, a Makatib, or
an Am-Walid, cannot be pawned. — IT is not
lawful to pawn either a freedman and Modabbir
a Makatib, or an Am-Walid ; because the
end of a contract of pawn is to establish
tho pawnee's possession of the pledge, with
a view to obtaining payment of his claim ;
a view which cannot be accomplished in
any of the above-mentioned instances, as 9
638
PAWNS.
[Vot. IV
freedman is not property, and the sale of
the others is contray to law.
Pledges cannot be taken to secure the
appearance of a surety i or of a criminal
liable to retaliation.-^ a person agree to bo
bail for the appearance of another it is not
allowable to demand a pledge from him on
*his account.— In the same manner also, it
is not lawful to take a pledge as a security
for a criminal condemned to suffer retalia-
tion either in life or limb, as in such case the
right could not be obtained by means of the
pledge. It is otherwise in the case of of-
fences bv misadventure; for there the fine
may be discharged by means of Jho pledge.
Or in security for a right of Shaffa.— It
is not lawful to take a pledge opposed to a
right of Shaffa :— in other words, if a person
appeal to the Kazoe (for instance), and claim
his privilege of Shaffa, and obtain from him
a decree to that effect, and demand of the
purchaser a pledge for the house over which
his privilege of Shaffa extends, the pawn is
not valid,! for here the article is not insured
in the hands of the purchaser : (that is to
say, if the house suffer any damage in the
possession of the purchaser, he is not respon-
sible for it) ; and a pledge cannot bo taken
but for matters that induce responsibility.
Or for a criminal slave, or the debts of
a slave.— It is not permitted to take a
pledge opposed either to a slave guilty of a
crime or to the debt of a slave ; because the
master is not in either instance respon-
sible, since, in case the death of the slavo,
he is not obliged to discharge his debt*.
Or for the wages of a public singer or
mourner.— IT is not lawful to give a pledge
for the wages either of a mourner* or of a
singer. If/ therefore, a pawn be given in
such case, and be afterwards destroyed in
the hands of the pawnee, he is not respon-
sible for it, as the thing in security for which
it was pledged is not a subject of respon-
sibility. f . .
A Mussulman cannot give or take wine in
pawn : but if he so receive wine from a Zim-
mee, and it be destroyed, he is responsible —
IT is unlawful for a Mussulman either to
give or take wine in pawn, whether from a
Mussulman or a Zimmee. Notwithstanding
this, however— if the Zimmee bo the pawner
and the Mussulman the pawnee, and the
wine be lost or spoiled, the Mussulman is
accountable for it, in the same manner as
in the case of his having usurped it ;
whereas, if the Mussulman were the pawner
and the Zimmee the pawnee : and the wine
be lost in the hands of the latter, ho would
not owe any compensation to the Mussulman,
any more than a person who had usurped
* Meaning, a person employed, on occa-
sions of grief, in making lamentations. It
is a custom amongst the Mussulmans to
employ such persons ; although prohibited
by the LAW, — whence it is that they cannot
sue for thejr tyre,
wine frojn a Mussulman. It is otherwise
where the pawner and pawnee are both
Zimmees ; for wine is property with them.
Carrion, on the contrary, is not property
with them any more than with Mussulmans;
and accordingly a pawn of carrion is not
valid among them by more than with us.
A pawnee is still responsible for the pledge,
although it appear that the debt to which it
was opposed is not due. — IF a person pur-
chase vinegar, a slave, or a slaughtered goat,
and having given a pledge for the purchase-
money, afterwards discover the vinegar to
be wine, the slave to be a freeman, or the
goat to be carrion,* still the seller is respon-
sible for the pawn in case of its being lost or
destroyed ; for it was deposited in opposition
to a debt, to all appearance duo. The same
rule also holds in a case where a person,
having killed a [supposed] slave and given
a pledge for the payment of his value, after-
wards discovers that he was a freeman. So,
likewise, where the parties in a suit compro-
mise the business for a part of the plaintiff's
demand and the defendant deposits a pledge
to answer the same, and they afterwards
agree that nothing was owing from the de-
fendant, the pledge is insured in the hands
of the holder of it.
A father or guardian may pledge the
slave of his infant ward for a debt owing by
himself. — IT is lawful for a father to pledge,
in security of his own debt, the slave of his
infant child ; for a father has the privilege
of depositing the goods of hia infant child
in trust ; and to pledge them is still more
conducive to tho interest of the proprietor
than to place them in trust, since if a pledge
bo lost it must bo accounted for, whereas a
trustee is not responsible for tho deposit in
his hands. A guardian also is the same as a
father in this particular, because such an
authority vested in him is beneficial to the
child. Aboo Yoosaf and Ziffer maintain
that this is not lawful either to the father or
guardian (and such is what analogy would
suggest); for a pledge is, in effect, equivalent
to a payment ; and as a father is not
privileged to pay off his debts with the
goods of his child, it follows that he has no
power of giving them in pledge. To this,
however, it may be replied, that there is an
obvious difference between the act of pledg-
ing and that of payment ; for discharging
the debts by means of the child's property
is a destruction of his right without any
equivalent ; whereas, placing his property in
pledge is providing it a guardian, for the
interim, without in any degree affecting his
right.
But they are accountable in case of loss. —
As, therefore, the contract of pawn is valid
in this instance, it follows that in case of the
* As having died a natural death. — The
term carrion is applied to the flesh of all
animals not slain according to tho prescri^ecj
BOOK XLVI11.— CHAP. II.]
JTAWJN».
639
pledge being destroyed in the pawnee's
hands, he is considered to have received
payment of his debt, and that the father or
guardian are responsible to the infant, as
having discharged their debt by means of
his peoperty.
And they may also authorize the pawnee
to sell the slave. — IN like manner it is lawful
for a father or guardian to order the pawnee
to sell the pledge ; for both of these have
the privilege of selling the goods of their
infant ward. The learned have said, that
this is founded on the law in a case of sale;
for where a father or guardian gives the
goods of his ward to his own creditors, in
payment of his debt, it is lawful ; find a
commutation being thus made of the debt
for the price, the father or guardian, in the
opinion of Haneefa and Mohammed, become
answerable to the ward for the value. — -Ac-
cording to Aboo Yoosaf, on the contrary, a
commutation does not take place : — -and the
same difference of opinion obtains where an
agent for sale disposes of the goods of his
constituent to a person to whom he is in-
debted. The contract of pawn, however, is
in these instances similar to that of sale
with respect to its effects ; for in both tho
object is to discharge the debts of the
father or guardian with the goods of the
infant, and to become answerable for them.
A father may retain the goods of his infant
child in pledge for a debt owing from the
infant to himself t or to another infant chili,
or to his own merchantile slave. — IF a father
pawn the goods of his infant child into his
own hands for a debt due from the child, or
into the hands of another of his children
being an infant, or of his slave, being a
merchant and not in debt, it is lawful ;
because a father, on account of tho tender
affection which he is naturally supposed to
have for his child, is considered in a double
capacity, and his bare inclination as equiva-
lent to the assent of both parties ; in the
same manner as where a father sells the
property of his infant child to himself.
But a guardian has not this privilege. — IT
is not lawful for a guardian to pledge into
his own hands goods belonging to his ward
on account of a debt due to him, or into the
hands of his child being an infant, or into .
the hands of his slave being a merchant and
free from debt nor is it permitted to him
to give anything of his own in pawn into
the hands of an orphan for a debt owing to
the orphan from himself) ; for a guardian,
being merely an agent, cannot of course
have a double capacity in contracts. A
guardian, moreover, is more deficient in
tenderness than a father, and therefore
cannot, like a father, stand in a double
capacity in making contracts. Besides, a
guardian pawning the property of his ward
into the hands of his infant child, or his
slave, being a merchant and free debt,
is in effect the same as pawning it to
himself. — It is otherwise where a guardian
pawns the property of his ward to hts adult
son, to his father, or to his indebted slave,
sirfce over these he has no authority.
Yet he also may retain the goods in pawn
for necessaries furnished by Aim. — IF a
guardian purchase victuals or apparel for
the use of his ward, and, having debited
him for the price, take in pawn part of his
goods as a security for the debt, it is valid;
for, as he it* permitted to borrow for the use
of tho orphan, and as taking a pawn is like
the discharge of a claim, it is of conse-
quence legal. Besides, as it is lawful for a
guardian to trade on account of his ward, it
follows that it is also lawful for him to give
and receive pawns, they being similar to
receipts and payments.
A child cannot recover property which had
been pawned by his deceased father, but by
redeeming it.— IE a father pawn the goods of
his infant son, and the infant attain matu-
rity, still ho is not at liberty to annul the
contract of pawn and take back tho pledge
until he shall have discharged tho debt ; for
the contract is binding upon him ; as the act
of a father on behalf of his infant child is
binding upon the child after he shall have
attained maturity, a father being his infant
child's substitute.
If he redeem it during the father's life.
time, he has a claim on him for what he
pays. — IF a father pawn tho goods of his
son on account of his own debt, and tho son,
by a discharge of the debt, redeem the same!
he has a claim on the father for the sum ; for
it was necessary that the son should 'dis-
charge the debt, having occasion to release
his goods out of tho hands of the pawnee ;—
in the same manner as holds with respect 'to
tho lender of a pledge ; in other words, if a
person lend any thing to another with a
view to that other's pawning it, it is lawful
to him to redeem the article from the
pawnee by a discharge of tho borrower's
debt, and then to prefer a claim of debt
against the borrower ; and so here likewise.
And the father is responsible in case of
the pledge being lost.—lv, also, on this case,
the pawn be lost or destroyed before the
son's release of it by discharging his father's
debt, it is lawful for him to prefer a claim
upon the father, as he has in effect dis-
charged his debt by means of his (the son's)
property.
IT is lawful for a father to pawn the gooda
of his son for a debt jointly due by both.
If, therefore, the pledge be destroyed, the
father must compensate to the sou by the
payment of a sum equivalent to his [the
father's] share of the debt ; because he has
paid off so much by means of the sons*
property.— The same rule also holds with a
grandfather, or a guardian, in case of the
non-existence of the father.
Case of a guardian pawing the goods of
his ophan ward, and then borrowing and
losing the pledge.— Iw a guardian purchase
victuals for an orphan, so as that the price
is a debt upon tho orphan, and pawn an
article belonging to the orphan as a security
WKJ
PAWNS.
[VOL. IV
for the debfc, and the pawnee take possession
of the same, and tho guardian then borrow
it from the pawneo for the uso of the orphan,
and it be destroyed in his (the guardian's)
hands, it is no longer included in the con-
tract of pawn, nor is any person responsible
for it ; for the act of the guardian in this
instance is the same as that of the orphan
when he has attained miturity, her having
borrowed the article for his u«e,— in which
case such U the rulo. TKe dobt of the
orphan, in this case, still remains due ; and
the creditor is to receive payment from the
guardian, who is reimbursed by the orphan ;
because the guardian, in borrowing the
pledge, was not guilty of any transgression,
as it was borrowed for the orphan's uso, If,
on the contrary, it have been borrowed on
his own account, he is responsible for it to
the orphan ; because in borrowing it for his
own uso he is guilty of a transgression, as
having usurped a privilege which doas not
belong to him. It, also, ho were to usurp it
from the pawnee and apply it to his own use,
he is responsible for the value, as having
been guilty of a transgression,— with respect
to the pawnee, by the usurpation,— and with
respect to the orphan, in having applied the
article to his own uso. Ho is, moreover, in
this instance bound to discharge the debt of
the pawnee, if the term stipulated should
hare expired. If, therefore, tho value of
the pawn be equivalent to the debt, he must
discharge it in full, without any reimburse-
ment from the property of the orphan ; for
the same that was before due from the
orphan to hi<m becomes now so from him to
be orphan, and hence a commutation takes
plaee. If, on tho other hand, tho value of
the pledge be short of the debt, he must dis-
charge from his own property a sum equiva-
lent to the pledge, and the residue from that
of the orphan ; for he is only liable for the
amount of the value of the pledge . If, on
the contrary, the value of tho pledge exceed
the debt, he must pay the amount of the
debt to the pawneo in discharge of his claim,
and the remainder is the right of the orphan.
If the stipulated term of payment should
not have expired, the value of the pledge
must be deposited in pawn with tho pawnee ;
for the guardian having destroyed one of the
established rights of the pawnee, the value
of it therefore must be given in pledge into
his hands ;— and upon the term if payment
arriving, the same rules are to be observed
as are above fully set forth.— It is to be
observed, however, that the guardian, in
case of having ex tor red the pawn and
applied it to the use of the orphan, becomes
(if under these circumstances it should be
destroyed) liable only to make reparation for
violating the rights of the pawnee, as in
applying it to the use of the orphan he does
not violate his right ; neither is his taking it
from the pawnee any transgression with
respect to the orphan, as a guardian is
authorized to take the goods of his ward ;—
whtoo* it if that Mohammed, in the Zeeadat
(under tho head of Acknowledgements), has
said, "Whore a father or guardian acknow-
ledges having usurped tho goods of his
infant ward, nothing is chargable to them
in ease of loss or decay ; because this is not
an usurpation, they having an unlimited
power to tako tho goods of their ward." In
the above case, therefore, the guardian is
answerable to tho pawnee ; and at the expi-
ration of the stipulated term ho must dis-
charge his debt and charge it to the account
of the orphan ; for he has in no respect
perjudiced him, but has on tho contrary
applied the pawn in hw mo. If, however, the
term of payment be not arrived, the thing
given in reparation must, until then, remain
as a pledge in the hands of the pawnee,
when he is to obtain payment of his debt,
and tho guardian to recover the amount
from the orphan's property.
Money and all loeighable and measureable
articles may be pawned.— Rules to be observed
in those instance.—!? is lawful to pawn
dirms, dcenars, or any article of weight or
measurement of capacity ; for as a debt may
be discharged by means of such articles,
they are consequently fit to be pawned. If,
therefore, any such articles be pawned in
security for an article of the same kind or
species, and bo lost in the pawnee's hands,
the debt becomes cleared in a degree, propor-
tionate to the value of the pledge, if that he
either equal to, or less than the amount of
the debt. If, on the contrary, tho value of
the pledge exceed the amount of tho debt,
the whole of the debt is in that case held to
be discharged, notwithstanding the one be
base and tho other pure ; for where the pawn,
and debt are of the sa^ne kind, tho quality
i.s not to be considered. This is the opinion
of Hanecfa ; for (according to him) the
pawnee in the above case is to receive pay-
ment of his debt by weight, and not by
value.— The two disciples, on the contrary,
hold that tho pawnee, on the loss of the
pledge, becomes responsible for its value in
something of a different species, which value
ho holds (as it wore) in pawn in lien of the
original pledge.* The argument of Haneefa
is, that any regard to quality drops in the
case of usurious, property! when opposed to
its own species.— A discharge in a pure
article of this nature, moreover, in return
for a base article, is lawful, — as where, for
instance, a debtor, through inattention,
* Here follows a case in point, quoted
from the Jama Saghcer, with the author's
remarks, and the difference of opinion among
the Mussulman doctors concerning it, which
is omitted by the translator, as it interrupts
the discussion of the point in question, and
the arguments adduced have been before
fully detailed under tho head of Usury.
t Arab. Imwal Rabwee, meaning any sort
of grain, — -and also gold or silver ;— in short,
everything with respoot to which usury can
be conceived possible.
BOOK XLVTII.— CHAP. II.]
PAWNS.
641
repays a dobt of base money in pure
money.
Case of a silver vessel pawned, — and after-
wards lo*t. — IF a silver vessel equiponderant
to ten dirms be pawned for a debt of ten
dirms, and afterwards lost in the hands of
the pawnee, the whole amount of the debt
stands discharged. The compiler of the
Hedaya remarks that this rule universally
obtains with our doctors where the value of
the vessel is either equal to, or greater thnn
the weight of it ; but that where the value,
by being short of the weight, is short of the
debt, there is a difference of opinion ; for,
according to Haneefa, the whole debt, in
that case, stands discharged (ho holding the
pawnee to have received payment by the
weight of the vessel) ; — whereas the two dis-
ciples teach that the pawnee remains respon-
sible for the value, which continues, with him
(as it were) in pawn, his claim still existing
as before.
Or broken. — TF, on the contrary, the vessel
be not lost, but broken, then, on the first
supposition (that is, supposing the weight
and value to bo the same), according to
Haneefa and Aboo Yoosaf the pawner is not
cordpollablo to redeem it ; for if he were to
redeem it by paying the greatest part of his
debt, and deducting some small part of it in
consideration of the loss arising from the
breakage, it would in that case appear that
he considered the quality separately, and on
this account paid only part of his debt,
which is illegal ; or if, on the other hand, he
were to redeem it by paying the whole of
his debt, and thus taking the broken vessel,
it would bo a loss to him. — The pawner,
therefore (according to the two Elders), is
at his own option, either to redeem the
broken vessel by paying the whole of his
debt, or to relinquish it and compound with
the pawnee for its value, which may either
be of the. same or of a different species from
the vessel ; and this value remaining (as it
were) in pawn, the pawnee becomes pro-
prietor of the vessel, because of his having
thus made compensation for it. In the
opinion of Mohammed, on the contrary, the
pawnor may either redeem the broken vessel
by a pay/ment of the whole of the debt, or
he may give it to the pawnee as discharge
of it, in the same manner as in the case of
the loss of the pawn. Hence Mohammed
conceives an analogy between a pawn
damaged and a pawn lost, for this reason,
that when a redemption cannot be made
without a cofmpensation, it is then the same
as if the pawn were lost ; and as, when the
pawn is actually lost, the debt becomes (in
the opinion of all our doctors) annulled, it is
so likewise in the present instance, which is
a case of loss in effect.-— Haneefa and Aboo
Yoosaf have said, that when a pawn is lost
the pawnee is hold to be paid in respect of
the worth, — in this manner, that he becomes
immediately answerable for the value of the
pawn to compensate for its loss, and that a
commutation for the debt takes place. — -Put
when a debt is annulled for a pawn then
extant, though somewhat damaged, on abso-
lute appropriation of it takes place ; that is
to say, it must be so detained as to render
the substance of it the property of the
pawnee. This is, however, a mistaken de-
termination, and is rejected in law: when
fore it is most proper that a substitute be
made of the value.*
A pledge may be stipulated, in sale, for the
price of the article sold. — IF a person sell a
slave on condition that the purchaser shall
deliver to him in pawn some specified thing,
it is lawful on a flavourable construction,
whereas analogy would suggest that it is
unlawful. So also, it is lawful for a person
to sell a slave, on condition that the pur-
chaser give, as his security, a third person
who is present at the conclusion of the bar-
gain, and who consents to be security. The
objection suggested by analogy, in this in-
stance, is that the agreement entered into
forms a double compact, or one compact
within another, which is prohibited in the
LAW. — -Besides, it contains a condition which
is not conformable to the object of the agree*
ment, and from which there results an advan-
tage to the seller, who is a party in both the
compacts ; and such a condition renders a
contract of sale void. The reason, however,
for a more favourable construction of the
law, in this particular, is that such a condi-
tion in the agreement is no way repugnant
to the contract, since bail or pawn tend to
ensure and strengthen the agreement, and
are in strict conformity with the obligation
of the price. If, therefore, the proposed
surety be present at the conclusion of the
agreement, or the pledge be specified, atten-
tion is paid to the condition of bail or pawn;
for, as being proper to the agreement, they
are consequently legal.
But the agreement is not valid unless the
pledge be particularly specified— Iv, on the
other hand, the surety be not present, nor
the pledge specified, the agreement is in-
valid; for the intention of giving bail or
pawn does not in that case exist, inasmuch
as the pledge or surety is unknown ; and as
there remains only a nugatory condition,
the agreement is therefore invalid. Still,
however, if the proposed surety appear be-
fore the parties have separated, and acquiesce
in the bail, the agreement then becomesvaild,
Nor can the purchaser be compelled to de-
liver it.— If the purchaser, after the pawn had
been agreed upon, should refuse to deliver the
pledge specified, the Razee must not compel
him thereunto, as it is the delivery alone
that determines the agreement. — Ziffer has
said, that when the condition of pawn is
included in the sale, a fulfilment of it is
* A long discussion which follows upon
this subject is omitted by the translator, as
containing merely a train of subtle and
frivolous distinctions relative to usury, of
ao practical utility.
642
PAWNS.
[VOL. IV
absolutely necessary ; and that therefore
the Kazce may enforce it ; for the condition
having been stipulated as an article of 'the
sale, becomes one of the rights thereof, and
is equally binding, although it be not in
itself of any force ; — in the same manner as
a power of agency included in a contract of
pawn, which is binding because of the con-
tract being so ; in other words, if the pawncr
of a thing were to stipulate that the pawnee
shall undertake the sale of it, such agency
would bo binding ; — -whence it would not
afterwards be in the power of the pawnor to
retract it. In reply to this, however, it is
to be observed, that the agreement of pawn
is voluntary on the part of the pawner ; and
there is no compulsion to the execution of a
voluntary deed. The seller, however, may,
at his discretion, cither relinquish the agree-
ment of pawn, or he may invalidate the sale ;
for as he had earnestly desired the detention
of the pawn, and as it was on the strength
of that condition only that he had agreed to
the sale, he is not, consequently, in default
of it, obliged to adhere to his agreement,
unless the buyer should in the mean time
either have paid the price, or pawned, in
place of the thing specified, the worth of it
in dirms or deonars, in which case the sale
becomes complete and binding, since, in the
first instance, the seller obtains his object,
and in the second ho obtains the fulfilment
of a conditon with which he was satisfied,
the pawn of the value being the same as
that of the substance, for the end of the
agreement is to obtain payment and that
can only bo obtained by means of the pro-
duct of the pledge, namely, the value.
An article tendered by a purchaser in
security for the price of the merchandize
is considered as a pledge, although the term
pawn be not expressly mentioned by him.^
IP a person purchase anything for a par-
ticular sum, and request of the seller "to
keep his robe until such time as he pays
him the purchase-money,'* the robe is con-
sidered as a pledge ; for the buyer, in saying
that the seller should detain the robe until
he render him the purchase money, spoke
in a manner which implied an intention of
pawn, although he did not expressly men-
tion the word pawn : and in every agree-
ment regard is to be had to the spirit, not
to the letter. Ziffer maintains that, in this
case, the robe is not pawned, in which opinion
Aboo Yoosaf likewise concurs; and the reason
they allege is, that the expression used by
the buyer does not only imply an intention
to pawn, but may likewise signify a deposit,
which construction, as being the most favour-
able, ought to be adopted.— It is otherwise
where a person expresses himself, "keep,
this robe in security of your debt (or goods),"
for then, in mentioning security, it becomes
obvious that his object was to pawn it. — Tn
answer to this, however, it is to be observed,
that in either case his intention was to pawn
,he robe ; for although the expression, "keep
his robe," may admit of the interpretation
either of pawn or deposit, yet when the
speaker subjoins, "until such time as I pay
you the purchase-money,'* it is no longer
doubtful that he moans to pawn, and not to
deposit it.
Section.
Where two (or more) articles are opposed
in pledge to one debt, hey cannot tbe redeemed
separately. — IP a person pawn two slaves
for a debt of one thousand dirms, and after-
wards pay the proportion of one of these
slaves, still he is not permitted to take back
that slave until such time as he render to
the pawnee the residue of the debt. (By
the proportion of the slaves is to be under-
stood the particular sum for which each is
pawned, when they are both opposed to the
amount of the debt.) The argument in sup-
port of this determination is, that as a pawn
is detained in behalf of the whole debt, it is
therefore detained in behalf of every part
of it, in order the more strongly to bind the
pawner to the payment of his debt ; in the
same manner as hold with respect to an
article sold, where, if the seller, having paid
part of the purchase- money, be desirous of
taking in lieu thereof a proportionate part
of the article, it is not allowed : on the con-
trary, he must wait until the payment of
the whole price be made, when ho may take
the whole of the goods purchased.
Notwithstanding each article be opposed to
a particular part of the debt. — THK same
rule also holds, according to the Mabsoot,
when the depositor previously specifies the
particular value of each of the component
parts of his pledge ; as, for instance, when
a person, having pledged two slaves against
a debt of one thousand dirms, declares the
value of each to be five hundred dirms. It
is related in the Zeeadat, on the contrary,
that in this case the pawner is permitted
to take back the slave upon paying to the
pawnee the sum which he had before speci-
iied to be his value. The aogument of the
Mabsoot is that, in the case in question,
there is only one agreement ; and that no
separation takes place in it on account of
the distinct specification ; — in the same man-
ner as in sale ; in other words, if a person
sell two slaves for one thousand dirms, and
particularly mention the price of each to be
five hundred dirms, still there are not two
distinct bargains ; and so likewise in the
present instance. The argument of the
Zeeadat ia that in the above ease there
subsists two agreements ; and that it is
unnecessary to consider them as one ; for,
if they be considered as two, it amounts
merely to this, that it would follow that the
one is a condition of the other, a conclusion
which does not invalidate the agreement,
but rather the condition itself is invalid
(whence it is that if the pawnee acquiesce
in the agreement respecting only one of the
two slaves, it is lawful). It is otherwise in
the case of sale ; for if there be two con-
tracts of sale, it leads to this, that the one
BOOK XLVJII.— CHAP. II.]
PAWNS.
643
is a condition of the other ; a conclusion
which would invalidate the sale altogether.
An article pawned to two persons (in secu-
rity of a debt jointly owing to both) is pledged
in toto to each. — IF a person pawn any spe-
cific article into the hands of two people, in
security of a debt which he jointly owes to
both it is lawful ;— and in this case the
articles is held to be completely pledged into
the hands of each of the creditors; because
the apirit of the agreement is, that the article
is held entire and in one pledge : — nor does
it hence follow that the pledge is undefined,
because of the separateness of rights ; for
each has a claim to the whole, — the object of
the agreement being a detention in security
of debt ; and as that is a thing incapable of
severalty, the pawn ia therefore detained
wholly in security of the debt of each, ft
is otherwise where a person bestows any-
thing in gift to two people ; for this is not
lawful, according to ITaneefa, as the object
of a gift is an endowment with right of pro-
perty, and two men cannot lawfully have
each the complete property of one thing,
since this would induce the consequence of
a moiety being appropriated to each inde-
finitely, which in gifts is not admissible.
And if they agree to hold it alternately,
each is in his turn trustee on behalf of the
other. — IF, in this case, the parties agree to
a Mahayat, or alternate possession of the
pledge, each is, during his terni of posses-
sion, a trustee on behalf of the other; — and
if it bo destroyed, each is responsible accord-
ing to his respective share, — for upon this
happening each is hold to have received a
discharge of his claim, a discharge being
capable of partition. If, also, the pawner
p'iy off the debt of either, the article in that
case remains wholly in pledge with the other,
since it was before completely so in the hands
of each without any separation. Analogous
to this in the detention of things which have
been sold to two or more jointly ; for one of
the buyers, after paying his proportion of
the pri.cn, is not entitled to take from the
merchant his share of the goods purchased;
on the contrary, the merchant may detain
the whole until such time as he shall have
received the remaining part of the price
from the other purchaser.
IF two people, by one agreement, pawn a
certain thing into the hands of one person
in security of a debt which they jointly owe
to him, it is lawful, and the thing so pledged
is detained in security of the whole of the
debt. The pawnee is, moreover, at liberty
to detain the pledge until ho receive a com-
plete discharge ; for the two having pawn
the article together, the pawnee is therefore
hold to have received a complete and un-
divided seisin of it.
// two persons, respectively, claim an
article from a third, in virtue of an alleged
pawn, and both produce evidence, the claim
of both is null — -!F two persons prefer a
claim to a slave in the possession of a third,
each separately asserting "that the possessor-
had formerly completely pawned the slave
ini^o his hands, and had afterwards borrowed
or usurped him," and each produce an evi-
dence in support of his declaration, the
claims and evidences are null and inadmi*-
sible ; for each of the claimants having
maintained and supported by evidence that*
the possessor had pawned the slave com-
pletely into his hands alone, it is not, there,
fore, in the power of the Kazoo to decree him
to either, as it is impossible that the same
slave should be pawned wholly into the
hands of one person, and at the same tijne
wholly into the hands of another : — neither
could he decree wholly the substance of the
pawn to any one of them ; since ho has no
reason to prefer one to the other ; nor could
ho decree each of them an half, as a pawn is
indivisible. As, therefore, it is impossible,
to decide according to the evidences of either
they are both set aside.
OBJECTION. — IT would appear that the
Kazce ought to decree the slave to be the
pledge of both, since they have both, as it
were, received him at the same time, the period
when ho was pledged not being ascertained.
KEPLY. — The Kazeo has no power to pass
a decree of that nature, as he would thereby
depart from the evidence adduced by the
parties, each having expressly declared, that
the slave was wholly pawned into his hands
towards obtaining a satisfaction for the whole
of his particular claim. If, on the other
hand, he wore to decree an half to each, he
would act in opposition to the evidence, which
a Kazce is not at liberty to do.
ff <* pawner die, leaving an article in
pledge with two pawnees, it is sold for the
discharge of their claims. — IF a pawner die,
leaving a pledged slave (for instance) in the
hands of two pawnees, and each of them
produce evidence to prove that the slave had
been pledged wholly to him, a moiety of the
slave is in that case awarded in pldoge to
each, and may respectively bo sold by them
in satisfaction of their claims, upon a favour-
able construction ; and such is the opinion
of Kaneofa and Mohammed. — Analogy would
suggest that the pawn is in this instance null
(and such is the opinion of Ahoo Yoosaf) ;
for as the intendment of a contract of pawn
is that the pledge shall bo detained towards
obtaining payment of a claim, it follows that
the decree of the Ka/.eo, awarding a moiety
of the slave to each, proves* the pawn to have
been indefinitely held in sovoralty, which is
unlawful now, in the same manner as in the
lifetime of the pawner. — The reason, how-
ever, for a more favourable construction of
the law in this particular is, that the object
is not the mere contract itself, but its utility.
Now the utility of the agreement in the life-
time of the pawnor consists in a detentions of
the pledge, which cannot be accomplished in
the case of an indefinite severalty of claim;
but the utility of it after his death is, that
the pawnee may sell it in order to discharge
his debt, which a sevoralty of claims does'
not prevent,— the case being the same as
[VOL. IV
where two men contend that they are married
to the same woman, — or where two sisters
contend that they are married to the same
man, and evidences are produced to prove it
by both ; — for in this case the evidence ad-
duced is disregarded during the lifetime of
the man ; but after his death a decree is
passed assigning them their respective shares
of inheritance, as that is capable of division.
CHAPTER HE
OF PLEDGES PLACED IN THE HANDS OF A
TRUSTEE*
The parties may, by agreement, entrust the
pledge to the custody of any upright person.
— TF the pawnor and pawneo agree to place
the pledge in the hands of any upright per-
son (to act as trustee for both), it is lawful.
Malik is of opinion that this is not lawful;
because the seisin of the trustee is the same
as that of the pawncr (whence it is that the
trustee has recourse to him for indemni-
fication where the pawn is lost in his posses-
sion, and another, having proved a right to
it, takes a compensation from him for its
loss) ; and such being the case, no account is
made of the seisin of the pawnee ; wherefore
the contract of pawn is incomplete, because
of the failure of one of its conditions, namely,
the seisin of the pawnee. The argument of
our doctors is that the seisin of tho trustee
is apparently the same as that of the pawiicr,
with respect to preservation (tho substance
of the pawn being a trust), and with respect
to worth it is the same as that of tho pawnee,
as it subjects him to responsibility in case of
its loss, a pawn being insured with regard to
its worth ; wherefore the trustee stands in
the place of two parties, the pawner and tho
pawnee, to strengthen the object of both,
namely, the contract of pawn. (With respect
to the trustee's right of having recourse to
the pawner, in case of tho loss, and so forth,
as mentioned above, it is admitted solely in
consideration of his being the pawner 's de-
puty for the conservation of the substance of
the pledge, in the manner of any ordinary
trustee.)
After which neither of them is at liberty
to take it out of the trustee's hands.— THE
pawnee is not at liberty to take tho pledge
from the trustee, inasmuch as the right of
the pawner is still connected with it, in this
way, that tho pledge is a deposit in tho
trustee's hands. Neither is tho pawner at
liberty to take it, because of the pawnee's
right being connected with it for the purpose
of obtaining payment of his debt. Neither
party, therefore, is at liberty to invalidate
the right of the other.
But the pawnee ia responsible in case of
' * Arab, Adil, an upright person. (See note
in p. 632.)
loss. — IF the pledge be destroyed in the pos-
session of the trustee, the pawnee is respon-
sible ; for tho seisin of the trustee is the
same as that of the pawnee in regard to the
worth of the pledge ; and responsibility
attaches only on account of worth.
Unless the trustee have transgressed, in
which case he is responsible. — IF, on tho con-
trary, the trustee deliver the pawn either to
tho pawner or pawneo, he is responsible ; for
this reason, that he is the pawner's trustee
with respect to the substancee of the pledge,
and the pawnee's trustee with respect to its
worth ; and each of these parties stands as a
stranger towards tho other ; and a trustee is
rendered responsible by delivering the object
of his trust into the hands of a stranger.
The trustee, therefore, being in this case
responsible, cannot retain the value by way
of tho pawn in his own possession ; for as ho
has become indebted for tho value, it follows
that, if he were to retain it by way of the
pawn, he becomes at once tho claimant and
claimee, and tho payer and receiver ; in
which is implied an obvious inconsistency.
Rules to be observed in this instance. — THE
pawner and pawnee must therefore, in this
case, concur to take the value from the
trustee, and deliver again to him, or to
any other person, in place of the original
pawn. If, however, they should not concur
in so doing, either of them may in that case
refer tho matter to the Razee, who may take
the value from the trustee, and again deliver
it to him, or to any other, in the place of tho
original pawn. If the Kazoo do so, and tho
pawner afterwards discharge his debt, then,
supposing that the responsibility for tho
value had attached to the trustee in con-
sequence of his having restored the pledgo
to the pawner, the value in question remains
secure to the trustee, as the pawner here
appears to have recovered his pledge, and
the pawnee his debt. If, on the contrary,
tho responsibility had attached to tho trustee
in consequence of his having surrendered
the pledge to tho pawnee, tho pawner, upon
discharging tho debt, is entitled to take from
him tho valuo in question ; for as, in case of
the existence of tho pawn, he would imme-
diately on payment of tho debt resume it,
he is by consequence at liberty to take the
substitute. It is to bo observed, in this
case, that if tho trustee have given tho
pledge to the pawnee in loan or trust, and it
have been destroyed without any transgres-
sion on his part, ho (tho trustee) is not
entitled to take the valuo from hi m (the
pawnee) ; — whereas, if tho pawnee have
occasioned the loss, ho is so entitled ; for as
the property of tho thing has before vested
in him in virtue of his having compensated
for its loss, it was of course his own property
that he lent ; and the borrower is therefore
liable for its loss when occasioned by himself,
but not otherwise. If, also, the trustee give
the pledge to tho pawnee, "in order that he
may preserve it hijmself as a security for,
his debt/' and it be afterwards destroyed,
XLVlIL— CHAP. III.]
PAWNS.
645
he is entitled to take the value from the
pawnee, whether he (the pawnee), were the
occasion of its loss or not ; for it was not
given to him in the nature of trust or loan,
but on terms which implied a liability to
make compensation.
The, pawner may commission the pawnee,
or any other person, to sell the pledge, and
discharge the debt ; but he cannot reverse the
commission, if it be included in the contract.
— IF the pawner constitute the pawnee, or
an other person of character, an agent for
the sale of the pledge, towards effecting a
discharge of his debt at the expiration of
the stipulated term, such agency is valid ;
because hero the pawner has merely created
an agent for the sale of his own property.
If, also, such agency bo expressed as an
article in the contract of pawn, the pawner
has not afterwards the power of reversing
it ; because where the agency is thus stipu-
lated, it is one of the rights of the contract,
and is therefore binding, in consequence of
the contract being so ; — and also, because,
as the right of the pawnee is connected
with it, the annulment of it would be a
destruction of his right ; — tho case here
being similar to that of an agent for a
defendant, who has been so created at the
instance of the plaintiff ; for such agent
cannot bo dismissed from his employ but in
tho presence of the plaintiff.
Rules with respect to an agent appointed
to sell a pledge. — If tho pawner constitute
any person his agent to sell tho pledge,
without restricting him to ready money or
credit, so as to leave him entirely afc his own
option in those points, and afterwards pro-
hibit him from selling it on credit, such
prohibition is of no effect ; for the agency
(as was before mentioned) being at first
absolute, is not afterwards subject to the
restriction of tho pawner. In tho same
manner, tho agent cannot be dismissed by the
pawnee, aa on him he is no way dependent,
having been created agent by the pawner.
If, also, the pawner die, the agency never-
theless continues in force ; for as tho con-
tract of pawn becomes not void upon the
death of tho pawner, so neither docs the
agency, that being expressly included
therein. Besides, if the contract were by
this event rendered void, it would bo so
only with respect to the rights of tho heirs
of the pawner, to which the rights of tho
pawnee are superior. Tho agent, moreover,
is empowered to sell the pawn without tho
consent of the heirs, in the same manner as
he would have dono in the lifetime of the
pawner without his consent. — So likewise,
if the pawnee should die the agency does
not determine ; for a contract of pawn is
not rendered void, either by the death of
both tho parties, or of one ; but continues,
as before, with all its rights and privileges;
such as possession, discharge, and the agency
in question. The power of agency, however,
ceases on the death of the agent ; and his
heir or executor cannot stand in his place ;
because agency is not an inheritance, the
cgnstituent being supposed to have confided
in his agent alone, and not in any other
person. It is recorded from Aboo Yoosaf,
that the agent's executor may sell the
pledge ; for as tho agency is binding, the
executor has a power of selling it ; — in the
same manner as where a Mozarib, after
having exchanged tho oapitol stock for any
species of merchandize, dies, — in which case
his executor is permitted to dispose of the
merchandize, the compact being still bind-
ing. To this, however, it may be replied,
that agency is tho right of a principal over
his factor; and the heirs of an agent can
inherit only his own rights. It is otherwise
with respect to Mozaribat, as the rights of
that appertain to the Mozarib, or manager.
The pawnee cannot sell it without the
pawnees consent. — A PAWJSEK has not a
power of selling tho pledge without the
consent of the pawner, as the property of it
belongs absolutely to him. Neither can the
pawner sell it without the consent of the
pawnee ; for, as the thing pledged is, with
respect to its worth, the right of the pawnee,
it follows that the pawner, if he were to sell
it without the concurrence of the pawnee,
would not have it in his power to surrender
it to the purchaser.
The agent at the expiration of the term of
credit, miy be compelled to sell the pledye.
— Iv, at the expiration of the stipulated term
of credit, the agent refuse to sell tho pledge
deposited for that purpose with him, and the
pawner have absconded, the Kazee must
compel him to execute the sale, by im-
prisonment, or other compulsatory means,
the agency being binding for two reasons; —
FIRST, booause, when expressly included in
the contract of pawn, it becomes one of the
rights thereof ; and, fc>ECONDLY, because the
right of the pawnee is connected with it : and
the dismission of the agent annihilates that
right. The same rules, in short hold in this
instance, as in the case of an agent for tho
adjustment of a cause of dispute created by
the defendant at the instance of the plain-
tiff ; for if the defendant abscond, and the
agent refuse to settle the cause, he is com-
pollablo thereunto by tho Kazee, for the
second reason above-mentioned, that the
right of the plaintiff would else be de-
stroyed. (It is otherwise with respect to a
mere agent for sale ; for if he refuse to
execute tho sale, ho cannot be compelled
thereto; as his constituent may still sell the
article, whence his right is not destroyed.)
What is hero advanced proceeds on the
supposition of the agency being included
in the contract of pawn ; for if it have not
been stipulated until after the execution of
the contract, there is in that case a difference
of opinion ; some assorting that the agent
cannot be compelled to execute the sale,
whilst others maintain that he may be
compelled. Of these the compiler of the
Kedaya remarks that the last is the better
opinion. Aboo Yoosaf has said that the
646
PAWNS.
[VOL, IV
agency is equally binding in both cases
(that is, when included in the contract,
and also when made posterior thereto). And
the Jama Sagheer and Mabsoot tend greatly
to corroborate this opinion for in treating
cf this species of agency they have supposed
it absolute, and not discriminated between
that included in the contract of pawn and
that agreed upon posterior thereto.
// the pledge be sold by commission from
the trustee, the purchase-money is substituted
in place of it.— WHEN the agent of a trustee
in whoso hands a pledge has been deposited
sells it, it is no longer in pawn, and the
purchase-money stands in its place (that is
to say, is, as it were, in pawn), although the
agent may not yet have received it, as being
the substitute for a thing which was before
in his possession. Hence, if the purchase-
money should be lost, by the purchaser (for
instance) dying insolvent without having
discharged it, the loss falls upon the pawnee;
because the contract of pawn still continues
in force with respect to the purchase-money,
.since that stands in the place of the thing
sold, namely, the pledge. In the same man-
ner, where a pawned slave is slain, and the
•murderer accounts for his value, the contract
still continues in force, as the owner of the
slave is entitled to the value in virtue of his
property, notwitstanding such value be
paid in atonement for blood. The same rule
also holds where a slave, having killed
another pawned slave, is commuted for the
one so killed,— the murderer being in that
case substituted for the murdered.
// the trustee, having sold the pledge and
paid off the pawnee, be exposed to any subse-
quent loss, he may reimburse himself from
either party.— IF a trustee, having boon
appointed agent for the sale of the pledge,
should sell it, and deliver the price to the
pawnee by way of payment, and another
afterwards prove a property in the pledge,
and he accordingly pay that other a compen-
sation for its value, it then remains in his
option, either to take the value from the
pawner, or the amount of the purchase-
money from the pawnee : but he is not per-
mitted to take more from the pawnee than
the purchase-money.— The compiler of the
Hedaya remarks that this case may occur
under two different circumstances or predi-
caments:— I, where the pledge is destroyed
after the sale ; and II. where it remains
whole and complete. — -In the former of other,
the owner of the pledge is at liberty there
to take a compensation for tho value from tho
pawner, who is an usurper of his right, or
form the trustee, who has invaded it, in
having sold his property and delivered it to
another. Should he, therefore, take it from
the pawner, the sale of the trustee becomes
valid, as does also the pawnee's seisin of the
price in satisfaction for his debt ; because, as
the pawner, by making compensation, be-
comes proprietor of the pledge and effaces
tue usurpation, it then appears that he had j
authorized the trustee to sell that which was
his own. — If, on the contrary, ho take
the compensation from the trustee, he (tho
trustee) may, if he choose, have recourse to
the pawner ; that is to say he may take
from him the value of tho pledge ; for, as
being his agent, and the manager of his
affairs, he is consequently entitled to an
indemnification for whatever loss he may
have unavoidably sustained in the execu-
tion of his commission. And in this case,
also, the sale of the pledge is valid, as well
as the pawnee's seisin of the purchase- money
in satisfaction for his debt, — whence, in this
ease, ho (tho pawnee) cannot urge any future
claim against the pawner on the score of
his debt. — Or, if the trustee choose, he may
have recourse to the pawnee ; that is to say,
ho may resume from him the purchase-
money which he had unjustly received from
him ; unjustly, because it proved in the end
to be the trustee's property, by his having
afterwards made good the loss to tho pro-
prietor. For when he gave it to the pawnee,
he supposed it to have been the property of
tho pawner : but he may not, perhaps, when
it proves his own property, be inclined to
confirm the transfer, and ho is therefore
allowed to resume it. As, however, the
resumption of the purchase- money from th
pawnee deprives him of a discharge of hi0
claim, which the seisin of it was intended to
effect, he therefore remains at liberty to
demand payment from tho pawnor in this
instance. In the latter of the above circum-
stances, on the contrary (where tho pledge
remains whole and complete after the sale),
it is incumbent on the owner of tho pledge
to resume it from tho purchaser, as he pos-
sesses the substance of his property ; and tho
purchaser is entitled to a restitution of the
purchase-money from the trustee, because
of his being the seller ; after which the
trustee may, at his option, receive an indem-
nification either from the pawner or pawnee,
— froon the former, because ho occasioned
him to enter into tho agreement, from which
he is consequently bound to release him, — •
and from tho latter, because, when the
thing sold was proved to belong to another,
the money obtained in lieu thereof is no
longer formed purchase-,money, and tho
pawnee having received it only as such his
seisin is no longer of effect. If, therefore,
ho take tho value from tho pawner, the
pawnee's seisin of tho price is rendered
valid :— whereas, if he resume the purchase-
money frofcn the pawnee, his seisin being
thereby destroyed, his former righ (namely,
the claim against the pawnee) exists as
before.
But if he was commissioned by the pawner
after the contract, he must recur to him alone
for indemnification.— ALL that is here ad-
vanced proceeds on the supposition of the
agency having been included as an article in
the contract of pawn ; for if the pawner
appoint the trustee his agent for the sale of
the pledge after tho contract, he (the agent)
is in this case- to indemnify himself for
BOOK XLVIIL— CHAP. IV.]
PAWNS.
647
any loss he may sustain, in consequence of
selling the pledge from the pawner, not
from the pawnee, notwithstanding he may
have made over to the pawnee the price he
had received for the pledge, since with this
agency the pawnee has no concern, insomuch
that the pawner may rescind the agency
without consulting him.
A stranger proving his right tn a pledged
slave, who had died with the pawnee, may
seek his compensatiin from either party.--
IF a pledged slave die in the possession of
the pawnee, and it he afterwards discovered
that ho was the property of another, and not
the pawner, it romaina with the proprietor
to demand a compensation from either the
pawner or pawnee ; for both are violators of
his right,— the one in having delivered the
pledge to another, and the other in having
received it. If, therefore, he take a com-
pensation from the pawner, the pawnee,
because of the slave having died in his pos-
session, is held to have received payment of
his debt; for as the pawner has obtained a
property in the slave by indemnifying his
owner, tho payment of his deht is therefore
effected by the slave dying in tho pawnee's
hands. If, on the contrary, ho take a com-
pensation from the pawnee, ho (the pawnee) is
not only entitled to an indemnificatory satis-
faction from the pawnor, but his claim upon
him still exists as before :— ho is entitled to
an indemnification from the pawner, because
of his having deceived him ; and his claim
of debt exists as formerly, because the dis-
charge effected by the pledge having died in
his possession ceases to be of force upon his
making good the value, whence his right
reverts.
OBJECTION (by the Kazee Aboo KnazimJ.
—IT would appear that in *•*& case ™e
pawnee's claim does not exist a8 beforo» bu*
that the death of the slave in h18 hands
establishes a satisfaction for it; because,
upon the pawner compensating for th® slave s
value (by the pawnee recovering sue . v*Iue»
from him aa above), ho becomes, in virtuo °*
auch compensation, proprietor of the slave,
whence it appears that he, in fact, pledged
that which was his own, and that tho case *8
the same as if the proper ietor had taken the
compensation, from the pawner, which ould
exempt him from all further obligation to
the pawnee.
REPLY. — As the pawnee first pays the
compensation, he first becomes proprietor of
the slave from the tipie of possession ; and
when, afterwards, lie retakes that sum from
the pawnor, his property in the slave is
annulled, and the pawner becomes proprietor
of him. The pawiier's property in the slave
therefore, takes place, in this instance, pos-
terior to the contract of pawn (the pawnee
having, as it were, sold the slave to the
pawnor, and received the price for him) ; —
and this debt to the pawnee remains against
him as before, — whence the pawnee is
entitled to take it from him. It is other-
wise in the former alternative (where the
owner takes the compensation from the
pawner) ; for in this case the pawner be-
c^mes proprietor from tho time of the slave
being in hia possession (which was prior to
the contract of pawn), whence it may eb
said that he merely pawned what was his
own; — and upon tho slave dying in tfce
pawnee's hands, he stands acquitted of his
debt, which tho pawnee, therefore, cannot
afterwards claim from him.
CHAPTER IV.
OF THE POWER OVBJB PAWNS ; AND OP
OFTTT3NOES COMMITTED BY OR TTPON THEM.
A pledge cannot be sold without tfie
pawnetfs consent. — IF the pawnor sell the
pledge without the consent of the pawnee,
the sale remains suspended upon his will
because of his right being involved in the
pledge notwithstanding such sale be an act
of the pawner with reapeat to what is his
own property ; in the game manner as where
a person bequeaths the whole of his state,
in which case legacy is Suspended in its
effect, with respect to the excess, above
one-third, upon the consent of his heirs
because of their right being connected there-
with. If, therefore, tho pawnee assent to
the sale, it is vaild ; for it was before BUS.
pended only on account of his right, which
he here consents to forego : and it is also
valid if the pawner discharge his debt ; for
the sale is an act of the proprietor upon his
property, being suspended in its effect only
because of an obstacle,* which obstacle is
here removed.f — In the former case, upon
the pawnee having given his consent, and
the sale having been thereby rendered valid,
the right of the pawnee is transferred from
the pledge to the thing given in exchange,
namely, the price,— which, in the case here
considered, then becomes a substitute for the
original pledge. This is approved ; because
the ri-ght of the pawnee is connected with
the worth of the pledge ; and the return is
in effect the same as the consideration :
this being analogous to where an indebted
slave is sold by the consent of his creditors
in which case their right is transferred from
the slave to the value received for him, as
they are supposed, in assenting to the sale,
to have agreed to the transfer of their right
from the slave to the value, but not to the
total a bolition of it. If the pawner refuse
his assent, and annul the contract of sale, it
is null of course (according to one tradition),
where, if the pawner redeem the pledge,
still the purchaser is not at liberty to take
* Namely, the pawnee's right connected
with t>he pledge.
t By the discharge of the debt, which
of course disengages the pledge frqm anj
claim tho pawnee might otherwise {iav<
upon it,
PAWNS.
[VOL. IV
it ; for as the right of the pawnee is equiva-
lent to his actual property, he therefore
stands the same as the proprietor of the
pledge (whence his power acceeding to,
or annulling the contract of sale). Ac-
cording, however, to a more authentic
trcdition, the pawnee has not the power of
annulling the sale ; for his right can sustain
no detriment, as the sale cannot, at all events,
be carried into exeuction until he assent to
it. The execution of the sale, therefore,
being in this manner suspended, the pur-
chaser has the option of waiting until the
pawner may redeem the pawn, and resign it
to him conformable to the contract, or of
carrying the matter before the Kazoe ; for
the seller has it not in his power to deliver
the goods, and the power of dissolving the
contract rests with the Kazeo alone ; this
being similar to where a slave, having been
sold by his master, elopes before the purchaser
has received possession of him, in which
case the purchaser may cither wait until the
slave return, or he may prefer a complaint
to the Kazee, in order (as tho seller is in-
capable of delivering tho goods) to obtain an
annulment of the contract.
Who, if the pawner sett it more than once,
may ratify either sale.—lv the pawner sell *
the pledge without tho consent of the
pawnee, and again, before the pawnee has
signified his assent, sell it to another person,
in that case whichever of these two contracts
the pawnee may confirm is valid ; for as the
first sale is dependent on the consent of the
nawnee it cannot prevent the second from
being BO likewise. If, therefore, the pawnee
choose, he may ratify the second solo. If,
on the contrary, the pawner, after having
first sold the pawn as above, should let, give,
or pawn it to another person, and the pawnee
give his consent to sueh lease, gift, or pawn,
the sale which preceded either of these
deeds is valid. The difference between
these two cases is, that in tho first (where
one sale is made after another) the pawnee
may derive an advantage from confirming
cither of them (as his right lies in the price
and whichever, therefore, he approves is
valid. In the case of a lease or gift, on the
contrary, no advantage can accrue to the
Dawnec as his right lies in tho return for
the article, not in the usufruct. If, there-
fore the pawnee approve of either of these,
he by consequence implieclly assents to the
abolition of his own right ; and the previous
sale (which was suspended on his consent
only because of his ri«ht) becomes valid of
awn dive may be emancipated by the
nawnfr.—lt " permitted to a pawner to
emancipate the slave whom he has deposited
. pawn • for as he is sano and adult, he
*The sale here mentioned does not signify
an absolute, but a conditional sale, depend-
ing for its ratification, upon the pawnee's
concurrence, as before mentioned.
may of course render free his own property
which the pawn indisputably is. As, more-
over the contract of pawn does not induce
any destruction of the pawner'a property in
the pledge, his act with respect to it is not
rendered void by the pawnee withholding his
assent to it, notwithstanding the pawnee's
right (of detention in regard to the worth) be
thereby defeated : — in the same manner as
where the purchaser of a slave emancipates
him without having taken possession ; in
which case the slave is free, notwithstanding
the seller's right (of detention of the article
in satisfaction for the price) be thereby ren-
dered null.
OBJECTION. — If a person bequeath a slave
to another upon his deathbed, and leave no
other effects except that slave, and the heirs
of the testator afterwards emancipate the
slave, such manumission is not valid, because
of the right of the legatee ; and hence it
would follow that a pawned slave cannot be
emancipated, because of the right of the
pawnee.
REPLY. — The manumission of the slave
by the heirs of the testator is not (in the
opinion of Haneefa) void, but is merely
suspended until such time as he (the slave)
shall have performed emancipatory labour.
The sale, moreover, or gift of a pawn is
null, for this reason, that the pawner is
unable to surrender it to tho purchaser or
donee, — an objection which does not obtain
in the case of manumission, since in that
instance a delivery is not required. The
manumission is therefore valid, and takes
immediate effect, — whence the contract of
pawn is null, as the subject of it no longer
remains.
Who, if he be rich, must substitute the
value in pawn for the slave. — CONSEQUENTLY,
if the pawner be rich and the debt to the
pawnee be then due, he (the pawnee) may
require payment of it immediately ; — or, if
it bo not due until after the expiration of a
term, he may take from the pawner the value
of tho slave, and return it as a substitute
until his debt become payble, when he may
take it in satisfaction of his right, restoring
any surplus which may remain from it to
tho pawner.
But if he be poor, the slave must perform
emancipatory labour to the amount of his
value for the discharge of the pawnee* a claim.
—THIS is supposing the pawner to be rich
for, if he be poor, the slave in (question must
perform emancipatory labour to an amount
adequate to his value ; and with this (which,
if it be of a different species from the debt,
must first bo converted into the same) the
debt of the pawnee is to be discharged ; for
a discharge from the pawner being here
impossible, it is consequently made from
him who enjoys the advantage of the
manumission, namely, the slave. The slave
however, when his emancipator afterwards
becomes rich, is entitled to take from him
the sum he earned ; because he has, in fact
paid his debt, not voluntarily or gratuitously,
BOOK XLVIII— CHAP. IV.]
PAWNS
649
but in conformity with the ordinance of the
LAW in this pa/rtioular.*
Although he should have denied his being
In pawn previous to sf^ch manumits si'on. —
Ir a person make a declaration of having
pawned his slave, by saying to him, "I have
deposited you in pledge with such a person."
and the slave deny it, and the master after-
wards emancipate him, at a time when ho is
poor, it is incumbent upon the slave to per-
form emancipatory labour, according to our
doctors. Ziffer is of a contrary opinion; for
he holds this case to be analogous to where
a master first liberates his slave, and then
declares his having pawned him; in which
case, if the master bo poor, and tho slave
deny it (as above), emancipatory labour is
not incumbent on the slave ; and so here,
likewise. Our doctors, on the other hand,
argue that, in tho case in question, the mas-
ter d&clare tho pawn at a time when he is
undoubtedly competent to it, as he still pos-
sesses a property in the slave, not having
yet emancipated him ; and consequently his
declaration is valid. — It is otherwise where
the declaration of pawn is made subsequently
to the emancipation, as tho master's power
of pawning is then terminated ; — whence
there is no analogy between the cases.
A pawner may create his pawned slave a
Modabbir or Am-Wctlid. — IF a pawner
create the slave whom he has pawned a Mo-
dabbir, it is valid, according to all authori-
ties : — according to our doctors, because, as
the complete emancipation would be lawful,
it follows that this qualifiede macipation is
lawful, a fortiori ; and according to Shafei,
because the granting Tadbeer to a slave
does not (as ho holds) prevent the sale of
him. In a similar manner, it is in the
power of a pawner to constitute his pawned
female slave an Am-Walid; for as a father
has this privilege with respect to tho female
slave of his child, because of the right
which he has in his property, notwithstand-
ing such right be inferior to that of the
.child himself, it follows that thexortion of
the same privilege by a pawner, in virtue
of his right in the pledge, is valid a fortiori
the right of the pawner being superior to
that of any other person, as he is the pro.
prietor.
And if he be rich, he must substitute the
value in pawn; but if he be poor, the slave
murft perform emancipatory labour to the
full amount of the debt.— When, therefore, a
pawned slave is constituted either Modab-
bir or Am-Walid, such slave is excluded
from the contract of pawn, as the intention
is defeated, since a debt cannot be dis-
charged by means of a Modabbir or Am-
* The remainder of this discussion is
omitted by the translator, as being merely
a repetition of what has been already set
forth at large under the head of Mami-
minion. .
Walid ;* — whene.eif the pawner be rich, he
is responsible for the value, after the man-
nftr before shown in the case of pawned
slaves emancipated ;but if, on the contrary,
he be in indigent circumstances, the pawnee
may require from the Modabbir or Am-
Walid emancipatory labour to the amoun*
of tho debt, as the fruit of their labour U
the property of their master, it is othfcf*
wise in the caso of a pledged slave emanci-
pated by an indigent pawner ; for the fruit*
of his labour being his own property, he ia
obliged to labour to the r mount of his value
only, or that of the debt of the pawner, in
case of its being less than his value.
The pawner, on becoming rich, is respon-
sible for the emancipatory labour in the
former instance, but not in the latter. — IT ia
not permitted either to a Modabbir or Am-
Walid to resume from their master when he
becomes rich what they paid on his account
when poor, because they in fact paid this
from his property ; f Dut when a poor pawner
emancipates the slave whom he had pledged,
he [the slave] is entitled to take whatever
ho may have paid on account of his emanci-
pator ; because he has paid it from his own
property, J— and this from necessity, in con-
fortuity' with the precepts of the LAW (as
before observed), whence such payment can-
not be, considered as gratuitous. § Some
have said, that if the debt be not due at the
time, the Modabbir or Am-Walid are co-m-
pellable to earn their value; which, as being
a substitute for the pawn, must be detained
as such in lieu of the original : but that if,
on the contrary, tho debt be then due, it is
in that case necessary to discharge it from
the stock of the pawner ; and as the earn*
ings of the Modabbir or Am-Walid are con-
sidered as the property of the master, they
must therefore labour towards obtaining a
sum adequate to the whole of the debt.
An emancipated Modabbir does not owe
the pawnee labour beyond his value.— IT? a
pawner emancipate the slave whom he had
created a Modabbir, as above, it is not then
incumbent on the freedom to earn, a greater
sum than his value, although he should be
thereunto commanded by the Kazee ; for
after emancipation, the fruits of his labour
are his own property. Still, however, he
cannot recover from his master what ho Ijad
paid on his account prior to his freedom ;
as that was, in fact, the property of the
master.
Destruction of the pledge by the pawntr — —
Ir a pawner destroy the thing he had pledged.
* Because Modabbirs and Am-Walids can-
not be sold . .
tTo earnings of tholr labour bciug his
right.
J The labour and earnings of a freedman
being considered as his own property . .
§ A person is not entitled to recover, who
pays the debts of another in a gratuitous
manner.
650
FAWNS
IV
the same rules hold as aro established in the
case of emancipating the pledgo.
Ry a stranjer. — IP a stranger (that is*, a
person unconcerned in the contract) destroy
the pledge, the pawnee (not the pawnor) is
litigant against him, and may take from
hjm a compensation for the value, which he
must retain in pawn in place of thft original
pledge ; for the pawnee, as being the most
entitled to the substance of the1 pledge, is also
most entitled to its substitute, namely, the
value. It is here to be observed, that the
Stranger must compensate for the pledge
according to the value which it bore at the
ti;me of its being destroyed. If, therefore,
it be valued at five hundred dirms at the
period of its destruction, and at one thou-
sand dirnis on the date of the contract, the
stranger must account for five hundred dirms
to the pawnee, who must retain the same in
pawn ; — -and five hundred dirms are re-
mitted from the debt ; for the deficiency to
the amount is a destruction which has
occurred in the hands of the pawnee,
occasioned (as it wore) by the visitation of
heaven ; and as the property has thus perished
in his hands, a proportionable amount is
therefore deducted from his claim.
Or by the pawnee. — IF the pawnee destroy
the pledge before the expiration of the stipu-
lated term of payment, he is responsible for
the value, because of his having destroyed the
property of another ; — and this value he is to
retain in pawn until the term of payment
arrive ; for as it is a substitute for the sub-
stance of the pledge, it is consequently sub-
ject to the same rule. As soon, therefore, as
the debt becomes due, the pawnee may take
it from the value and if When a balance
remain, it must bo restored to the pawnor, as
being a return for his property, with which
the pawnee has no concern.
A depreciation in the value of the pledge
occaesons a proportionable deduction from
the pawnees claim. — IF a person pawn any
article estimated at one thousand dirms, in
security of a debt of the same amount pay.
able at some future period, and the article,
in consequence of a fall in the price, boar
afterwards a value of five hundred dirms,
and be then destroyedin the pawnee's hands,
he [the pawnee] is responsible for five
hundred dirms, and five hundred are also
remitted from his debt ; for the deficiency
of five hundred dirms arising from the fall
in the price being (as it were) a decay of
part of the pawn whilst in the hands of the
pawnee, an adequate sum is therefore re-
trenched from his claim; and the remaining
five hundred dirms are likewise due from
him in consequence of the decay, and remain
with him in pawn, as before stated.
The pawnee lending the, pledge to the
pawner, is freed from responsibility during
the loan. — IN a person, having received
slave in pawn, lend him to the pawner, in
order that he may enjoy the use of his ser-
vice, or for any other purpose, and the
fawner take possession, the slave is no longer
a subject of responsibility with the pawnee
(in other words, if he be killed or lost in the
hands of the pawner, the pawnee is not
thence held to have received payment of his
debt) ; because he has passed out of the pos-
session of the pawnee ; and the seisin of the
pawner in virtue of a loan does not stand as
the seisin of the pawnee, as . the tenure of
loan is repugnant to that of a pawn, since
the latter induces responsibility, whereas the
former does not.
But he may resume it at pleasure , and
then his responsibility retitrts.^ The pawnee,
however, is at liberty at any ti me to resume
the pledge from tho pawner ; because he holds
it by the tenure of a loan which is not bind-
ing ; and also, because the contract of pawn
still subsists ; — -whence it is that if the
pawnor were to die without having returned
the pledge, the pawnee would in that ease
have a claim upon it in preference to the
other creditors (that is to say, he would be
entitled first to take a satisfaction for his
claim from the pledge ; which done, if any
part should remain it would bo distributed
among the other creditors).
OBJECTION. — If a pawnee be not held liable
for a pledged slave after he is lent, how is
the con tract of pawn supposed then to exist,
REPLY-- Responsibility is not, in every
instance, one of the requisites of a contract
of pawn ;— whence it is that the effect of
the contract reaches to the child of a pawned
female slave, although such child be not a
subject of responsibility from loss or destruc-
tion.
As, therefore, the contract still subsists,
the pawnee resume the pledgo from the
pawner, he again become liable for it, in
the same manner as formerly, having again
taken possession of it in virtue of the con-
tract of pawn.
The pledge being lent to a straanger by either
party , is no longer a subject of responsibility.
-—IF either of the parties to a contract of
pawn lend the pledge with the concurrence
of the other to a stranger, it is not in this
case a subjoctof responsibility to the pawnee,
any more than in the for mer instance of but
the contract of pawn still continues in force,
and either party is entitled to resume the
pledge from the borrower, and to place it in
pawn as before, from the interest each has
in it.
The pledge, on being disposed of by either
party, with the consent of the other, is ex-
cluded from the contract. — IF either party,
with the consent of the other, let, sell, or
bestow the pawn in gift to stranger, it is
excluded from the contract, and cannot again
bo subject to it, unless the parties conclude
a fresh agreement. It is to be observed that
if, in any of these oases, the pawner die be-
fore a restitution of the pledge be made to
tho pawnee, he (the pawnee) is upon the
same footing with the other creditors; ; be-
cause as, in consequence oj these acts, a
binding right of others is connected with the
pledge, the effect of the eontreato no longer
Boos XLVm— CHI*. IV. J
PAWNS.
aai
remains :— whereas no binding right is con-
nected with a pledge in consequence of the
loan of it :— for which reason there is an
essential difference between the cases here
considered and that of loan.
IF the pawnee borrow the pledge from the
pawner for any particular purpose, and it be
destroyed previous to his having applied it
to that purpose, he is responsible for it, —
that is to say, a sum proportionate to itsvalue
is retrenched from his claim ; for until he
apply it to that use for which he has bor-
rowed it, the seisin which he had made in
virtue of the contract of pawn still subsists.
The law is similar where the pawn is des-
troyed after the pawnee has accomplished
the service for which ho had borrowed it ; for
then his seisin of loan exists no longer. If,
on the contrary, it be destroyed during the
period in which he enjoys the use of it, ho is
not responsible, as at that time he holds it in
loan, not in pawn. (The same rule also holds
where tho pawnor consents to the pawnee's
making use of the pledge.)*
A person borrowing an article, with intent
to pawn it is restricted in the pawn accord-
ing as he specifies the particulars of the debt,
<kc.t or otherwise.— IF a person borrow a robe
from another, with an intent generally de-
clared "to pawn it,*' he may accordingly
pawn it in security for any debt whether
great or small ; — whereas, if the lender par-
ticularly specify tho sum ; in security for
which the borrower may pawn tho robe, ho
is not, in that case, permitted to pawn it for
a sum either large or smaller than what is
BO specified ;— not for a larger sum, because
the intention of the lender is, that tho robe
shall be pawned for a debt which may be
easily discharged, an intention which is
obviously defeated in the caso of pawning it
for a large sum :— nor for a smaller sum,
because the view of the lender here is, in
case of its loss, the obtaining from the pawner
that sum which ho would receive from the
pawnee in consideration of the extra value
of the pledge. The same rule also holds
where the lender specifies either the particu-
lar species of debt, the person who is to re-
ceive the pawn, or tho city in which the
contract is to be concluded ;— such restric-
tions being severally attended with particular
advantage ; for the payment of some debts
is more easily effected than of others,— and
it is also more convenient to make payment
in some cities than in others, and so likewise
it is of advantage to particularize the persons,
as some men are just and careful, whilst
others are not so.
* That is, — where the pawnee, being al-
ready possessed of the pledge, obtains the
owner's consent to make use of it. — Vnrtho
elucidation of what is 1 ere advanced it is
proper to remark, that a pledge- may either be
delivered to the pawnee, given in trust to an
Adil, or retained in the hands of the owner
[the pawner] under a responsibility to ac-
punt for it if necessary,
And if he transgress), is responsible for the
ne in ease of loss.—lv, therefore, in any
of these cases, the borrower act contrary to
the directions of the lender, he becomes re-
sponsible for the value of the article in ease
of 1 oss ; — and when this happens, the lender
has it in his option either to take a compen-
sation from the borrower (in which case the
contract of pawn subsists entirely between
the borrower and the pawnee, since the
former, by paying a compensation for the
pledge, becomes sole proprietor of it), or from
the pawnee, who will take an indemnification
from the pawner, and likewise receive pay-
ment of his debt, as has been before explained
in the cases of claims laid to pledges. If,
on the contrary, the borrower conform to
tho directions of the lender, by pawning the
robe for the exact sum to which he was
restricted and tho value of tho robe be equal
to, or greater than tho amount of the debt,
the pawnee is held, in case of its loss, to
have received payment of his debt, and the
proprietor of tho robe receives from the
pawner the amount of the debt, being the
sum which the borrower had cleared by
means of his property (and it ia on this
account that the borrower must pay the
amount of the debt,— not because he was
seised of the robe, as that was in virtue of a
free loan from the proprietor).— In the same
manner if, when tho pawner had conformed
to tho direction of the lender, tho robe be in
any degree depreciated, the pawnee forfeits
a proportionate part of his olaim, and a like
sum is due from the borrower to the lender,
because of so much having been retrenched
from his debt. If the value of tho robe be
short of tho amount of tho debt, and it be
lost in pawn, a sum equivalent to its value is
retrenched from the claim, and the remainder
of the debt ia due from the pawnor, as no dis-
charge of debt is effected beyond the amount
of the value of the robe ; and the pawner is,
moreover, indebted to the lender for tho
value of the robe, having by means of it
made payment of as much of hia debt. — If,
also, the value of tho robe be adequate to the
amount of the debt and the proprietor bo de-
sirous of redeeming his property, on the part
of the pawner, by paying tho amount, tho
pawnee is not in that case allowed to object
to the restoring of it ; because the robe being
the property of tho lender, he does not, con-
sequently, by redeeming it, officiously inter-
meddle in an affair which docs not concern
him (whence he is entitled to take from the
pawner (the borrower) tho sum which ho
pays towards the redemption of the pawn);
and the Kazee must therefore compel the
pawnee to surrender the robe. It is other-
wise where an unconcerned person pays the
debt of the pawnor ; for as, by endeavouring
to redeem a thing which is not his own pro-
perty, ho interferes in a business which does
not relate to him, tho pawnee is not there-
fore compellable to surrender tho pledge to
him.
Bill wl '/ # *« M W*
PAWNS.
redemption.— IT the borrowed article be lost
in the hands of the borrower, either prior tp
his having pawned it, or posterior to his
haying redeemed it, he is not responsible ;
for here he has not accomplished any dis-
charge by means of the value, which (as we
have shown in the above case) is the sole
cause of responsibility.
On disputes concerning the loss of the
pledge, the deposition of the borrower is
credited with respect to the person in whose
hands it was lost, and that of the lender with
respect to the restrictions of the loan.— lv a
dispute arise between the lender and borrower
after the loss of the pledge, the lender assert-
ing that it had been lost whilst in the hands
of the pawnee, and the borrower on the other
hand maintaing that it was lost in his own
possession, either before he had pawned it or
after he had redeemed it, the declaration of
the borrower, upon oath, must bo credited,
because he is, in this case, the defendant, as
he denies having paid the debt by means of the
other's property.— Tf, on the contrary, they
disagree concerning the amount of the debt
to which the lender had restricted the pawn.
ing of the robe, the declaration of the lender
is credited ; for as his deposition would be
credited if he wese to deny the loan itself, it
follows that where he merely denies a
quality of the loan it is credited a fortiori.
A person receiving a borrowed article in
pledge on the faith of a promise, must pay
the sum promised to the pawner, who again
pays the same to the lender.— IF the borrower
of the robe pawn it on the faith of a promise,
— that is, on a person promising to lend him
a certain sum of money, and that promise
accept the pledge, and make the promise
accordingly, and the pledge (which is sup-
posed to be equal to the amount of the debt)
be lost before the pawnee had fulfilled his
engagement, he [the pawnee] is in that case
responsible for the sum so promised, as a
promise is held to be the same as a real debt ;
— and the lender is entitled to receive from
the pawner the sum which ho takes from the
pawnee.
The lender of a slave to pawn may eman-
cipate him, lodging the value with the pawnee,
in substitute for the pledge.— IF a person
lend his slave to another, that he may pawn
him, and the borrower pawn him accord-
ingly, and the lender afterwards emancipate
him, he is accordingly free ; for the owner's
property in him is not destroyed by the
circumstance of his being pawned. And in
this case the pawnee may either receive
payment of his debt from the pawner (who
is still indebted to him), or he may tako
from the lender the value of the slave by
way of compensation, as the right which he
had in the worth of the slave was destroyed
by the lender emancipating him ;— and
having thus received the value, ho may
retain it in pawn until such time as he
obtain payment of his debt, upon which ho
tjf'iigt restore the said value to the owner.
Tht borrower transgressing upon the article
(before pawn or after redemption) and then
ceasing from such transgression is not re-
sponsible in case of loss.— TF a person borrow
a slave or a camel with intent to pawn it,
and having first employed the slave in
service, or rode upon the camel, he then
pawn it in security of a debt adequate to its
value, and having afterwards discharged the
debt, the pledge be completely destroyed in
the hands of the pawnee before restoration,
in that case the pawner is not responsible ;
for when he concluded the pawn he became
exempt from responsibility, notwithstanding
he had previously enjoyed the usufruct ;
since although he at first transgressed, yet
he afterwards retracted, and acted in eon.
formity with the intention of the lender.
In the same manner, if the pawner, after
having redeemed the pledge, employ it in
service, without occasioning any detriment
to it, and it be afterwards destroyed by some
unforeseen contingency, he is not responsible ;
because the term of the loan having expired
upon the redemption of the pawn, he is no
longer a borrower, but becomes from that
period a trustee ; and although, in taking
the service of the pawn, he was guilty of a
transgression, yet as he afterwards retracted,
and conformed to the intention of the lender
he becomes thenceforth free from all respon-
sibility. It is otherwise in the case of a
person who has borrowed any thing not with
an intent to pawn it ; for his seisin, being
derived merely from the loan, is not therefore
the same as that of the proprietor, to whom
he is consequently bound to restore the thing
which he borrowed. In the case, on the
contrary, of a loan with intent to pawn,
when the thing is pawned the object of the
lender is obtained ; for his views is to have
recourse to the borrower ; that is to say, that
when the pawn is destroyed in the possession
of the pawnee, and a discharge of debt
thereby proved, he may tako from the
borrower a sum adequate to what he is held
to have discharged by the loss of the pawn :
wherefore if it be destroyed in the hands
of the borrower, without a transgression on
his part, he is not responsible.
A pawner destroying the pledge, is respon-
sible to the pawnee for the value.— IP the,
pawner kill the slave whom he had pledged
he is responsible for the value ; because by
the murder of the slave he destroys the ricfht
of the pawnee, which is sacred and invio-
lable ; arid a right of this nature, attaching
to the property of any person, renders him
[the proprietor] the same as a stranger with
respect to responsibility ; like the connonxion
of the right of the heirs with the property
of a dying person, which prevents the effect
of his gratuitous acts in any thing beyond
the third of his estate ; or like the connexion
of the right of a legatee with the legacy be-
queathed to him, which, if the testator's* heirs
should destroy the article (bequeathed to him
in legacy), renders them responsible for the
value as a substitute.
And so in proportion for any injury fie
XLVni.— CHAP. IV.]
PAWNS.
653
may do to it* — If the pawnee commit any
offence upon the pledge,* a sum is remitted
from his debt equivalent to the atonement
for such offence ; because the substance of
the pledge belongs to the proprietor (the
pawner): and as the pawnee has trans-
gressed upon it in this instance, he is con-
sequently responsible to the proprietor for
having so done.
Any finable offence committed by a pledged
tfave upon either the person or property of
his pawner is of no account. — IF a pledged
slave be guilty of an offence against the
pawner, either in person or property, such
offence is of no account, — that is to say, is
not attended with any effect ; — and in this
our doctors have been unanimous for as the
offence is here committed by the property on
the proprietor, the cognizance of it would
t«nd to no advantage. (By the offences here
alluded to it is to bo understood merely such
as induce fine, not such as occasion retalia-
tion.)
Nor such offence committed by him upon
the person of the patent R. — IP a pledged
lave be pnilty of an offence ngt.inst the
person of the pawnee, this Ukcwi.rj (in the
opinion of Ifaroefd) is of no account — The
two disciples have judged otherwise. — The
argument adduced by them is that as. in
this case, the offence does not affect the pro-
prietor, an advantage may be derived from n
cognizance of it, since the slave may bo made
over [to the pawnee] in reparation of the
injury.-— The offence is therefore of account
in this instance; and such (according to them)
being the case, it follows that if the pawner
and pawnee concur in dissolving the contract
of pawn, and the pawner either deliver the
slave, or pay a sum to the pawnee iu atone-
ment for the offence, tho obligation of debt
iu void : t~ but if the pawnee should signify
that "he does not desire any compensation
for the offence," the slave remains in pawn
as before. The argument of Haneefa is,
that no advantage can possibly result from
taking cognizance of the offence in question;
for if cognizance of it bo taken on account
of the pawnee, it is then incumbent on him
to extricate the slave from the guilt in which
he is involved ; t wherefore he must first
pay the expiatory cum, and then again re-
ceive it which there is evidently no ad-
vantage.
Nor upon his property, provided his value
do not exceed the debt for which by stands
pledged. — IP a pledged slave commit an
offence upon the property of the pawnee,
such offence is of no account, according to
all our doctors, provided tho value of the
alave be adequate to tho amount of tho debt:
* Such as by maiming, or otherwise.
t Because the slave hero appears to have
been " lost in the hands of the pawnee," a
circumstance which liquidates his debt.
J Because ho is possessed of the slave in a
wav whick induces responsibility.
for here no advantage can result from taking
cognizance of the offence ; as the remedy
applicable in this ease is an appropriation of
the alave to the pawnee, in compensation for
the injury he had sustained,— a remedy
which cannot here be effected, as the slave Jis
not made over in atonement for the offence*
but is sold, and a compensation for the injury
he has done to the property of the pawnee
discharged from the purchase money •— and
as the sum appropriated to the discharge of
the compensation is deducted from the debt,
there is finally no advantage in taking account
of the offence in this instance. If, on the
contrary, the value of the slave exceed the
amount of the debt, there are two opinions
recorded from Haneefa upon tho case.— ^One
is, that [the offeneo may be redressed in
the proportion in which the value [of the
slave] exceeds the debt, a pledge being a
trust with respect to any excess, and the in-
jury in this case being similar to that com-
mitted by a slave in deposit on the property
of the trustee. The other is, that the offence
cannot be redressed at all ; for as the effect
of the contract of pawn (namely, the detcn.
tion of the slave on account of debt) applies
to the excess as well as to any other part of
the pledge, it may therefore be said that he
is a subject of responsibility in toto.
But his offence against the son of the
pawnee is cognizable. — IF an offence be com-
mitted by a pledged slave on the son of the
pawner or pawnee, it is cognizable ; for, as
the right of property of a father is, in reality,
distinct and separate from that of his eon,
the crime is therefore the same as if com-
mitted upon a stranger.
// the pledge be destroyed after deprecia-
tion, the pawnee mast remain satisfied with
the compensation he recovers from the de-
stroyer- ^!F a person pawn a slave estimated
at one thousand dirms, in security for a debt
of tho same amount, payable at some future
period, and the value of the slave be after-
wards lowered to one hundred dirms from a
fall in the price,* and a person then kill the
slave, and pay a compensation of one hun-
dred dirms (being the value he at that time
bears), and the time of payment arrive, the
pawnee must in this ease keep possession of
the hundred dirms aforesaid in lien of his
debt and has no further claim whatever
upon the pawner. — This is founded upon an
established rule, that no regard is paid to
any depreciation of a pledge from a fall in
the price, regard being had solely to the
value it bore at the time of the contract of
pawn ;— whence it is that (as is here men-
tioned) diminution of the value of a pledge
from a tail in the price does not occasion a
remission of the debt, according to our doc-
tors : — contrary to the opinion of Ziffer, who
contends that, upon the pledge sustaining
any loss with respect to its worth, it may be
* That is, from a fall (for instance) in
current or market price of
684
PAWNS.
(Vox*
said to sustain a loss with respect to the
substance also. The argumet of our doc-
tors is that a fall in the price arises merely
from a decrease of desire in men towards
the article,— a circumstance to which no re-
gard is paid in the case of sale (whence the
purchaser has on option in consequence of
any casual fall in the market, but owes the
whole price agreed for), nor in the case
of usurpation (whence an usurper, upon
restoring the article he has usurped, is not
responsible for any depreciation it may have
sustained in the interim of usurpation from
a full in the price). As, therefore, no art of
the debt is remitted in consequence of a fail
in the price, the slave continues in pledge
opposed to the whole of the debt;— and upon
any person killing him, he pays the value
which he [the slavej then bears, namely, ono
hundred dirma (for, in exacting compensation,
regard must be paid to the value at the time
of the destruction taking place);— and the
pawnee takes the hundred dirms, as being a
compensation for the worth of the pledge
with respect to the owner of it. But, after
this, the pawnee has no further claim on the
pawner ; because the seisin of the pawnee
stands as a seisin of payment from the time
of his obtaining possession of the pledge-
which payment is confirmed in the event of
the loss of the pledge whilst in his posses-
sion. The value of the slave, moreover , at
the beginning was (one thousand dinns, and
upon his being destroyed in the hands of tho
pawnee, he [the pawnee] is accounted to
have received payment of his whole debt in
virtue of his original seisin. But since, in
consequence of his having received one hun-
dred dirms, it is impossible that the can also
be thus accounted to obtain payment of one
thousand dirms (the original valuo of the
slave) without inducing usury, tho matter
is therefore settled thus,— that ho received
these hundred dirms as part payment of his
debts of ono thousand dirms, and that there
still remain nine hundred dirms annexed to
the substance of tho pledgejand that, upon
the pledge being destroyed in his possession,
he is in consequence of such destruction
accounted to receive payment of nine hun-
dred dirms. It is otherwise where tho slave
dies a natural death in the hands of the
pawnee ; for as, in that case, there can be
no imputation of usury, he is therefore held
to have received payment of the whole of
the debt in that instance.
But if (after such depreciaiton) he sell it
by desire of the pawnee for payment of his
claim, he is still entitled to any deficiency.—
IF a person pawn a slave estimated at ono
thousand dirms in security of a debt of tho
same amount, and tho valuo of the slave bo
afterwards lowered to one hundred dirms by
a fall in the price, and the pawnee be autho-
rized by the pawner to sell tho slave, and
accordingly sell him for ono hundred dirms,
and take possession of the price towards the
discharge of his debt, — he is still entitled to
receive from the pawnee ttye remaining njne
hundred dirms : for as the pawnee sold the
pledge at the instance of» the pawner, it is
effect the same as if the pawner had taken
it back and sold it himself- in which case
the agreement would be dissolved and the
debt would continue in force, except in re-
gard to tha sum which the pawnee had
received — and so here likewise.
The pawner must redeem a slave of leas
value received by the pawnee in compensa-
tion for having slain the slave in pledge) by
payment of his whole debt - IF a person
pawn a slave valued at one thousand dirm
against a debt of the same amount, and
afterwards a slave valued at ono hundred
dirms kill the slave in pawn, and having
been given in compensation for his blood, be
detained in pawn in lieu of him, tho pawner
is in that case compellable to redeem him
by the payment of tho whole of the debt,
namely, one thousand dirms. This is the
opinion of Haneefa and Aboo Yoosaf. Mo-
hammed maintains that the pawner is in
this case at liberty either to redeem tho
pledge by discharging the whole of the debt
or to transfer the property of it to the
pawnee as a commutation. Zilfor, on the
other hand, contends that tho slave who
perpetrated the murder is to remain in pawn
in security of ono hundred dirms ; and that
the remaining sum of nine hundro d dirms
is accounted to be discharged ; because (as
he argues) the seisin of tho pawnee in virtue
of the contract is a seisin of payment, which
is fulfilled in this cas by tho destruction of
tho pledge ; but as the pledge has left behind
it a return or consideration, equivalent to
tho tenth part of tho debt, such part is
therefore still duo and tho slave is de tamed
in pawn in security thereof. Tho argument
of our doctors is, that in his caso no part of
the debt is remitted ; because tho second
slave is a substitute for tho first, in regard
merely to flesh and blood (that is, in regard
to appearance) ; and as, in caso of tho exist,
once of tho first slave, if the value wore
be diminished by a fall in the price, still no
part of the debt (as we have before shown,
would be on that account annulled,- so
neither is any part a annulled when another
slave is substituted for the one originally
pledged. Mohammad has indeed said that
the pawner may nevertheless refuse to re-
deem tho pledge ; for when a change and
diminution of value took place in the pawn
whilst in the possession of the pawnee (which
is a cause of responsibility), the pawner be-
came empowered to object to the redemption
of it ; — in the same manner as where a slave
kills a purchased slave antecedent to the
delivery of him, — *in which case the pur-
chaser has it at his option either to accept
tho slave who committed the murder in lion
of tho ono ho purchased, or to annual the
contract [of sale]. To this, however, the
two Elders reply, that upon the second salvo
being, with regard to appearance, substi-
tuted for the first, it may be said that in
change takes place in tho identity of ttye
BOOK XLVIIL— CHAP. IV.]
PAWNS.
655
slave ; and as the substance of a pawn is a
trust in the hands of the pawnee, it follows
that the pawner cannot render it the pro-
perty of the pawnee unless he should con-
sent there unto. — Moreover, the transfer of a
pledge in commutation of the debt to which
it stood opposed was a common practice in
times of ignorance, but has since boon pro-
scribed by the LAW. It is otherwise with
respect to the case of sale adduced as a
parallel by Mohammod ; for thoro the buyer
has the option of annulling the contract of
sate ; and the annulment of sale is permitted
by this LAW.
T'he fines incurred by a pledged slave must
be defrayed by the pawnee. — IF a pledged
slave slay a person by misadventure, the
fine of blood is in that case chargeable to
the pawnee, who must defray it accordingly
— nor is ho at liberty to commute the slave
for it, as ho has not the power of transfer-
ring the property of him to any persu.i. If,
therefore, the pawnee dischango the whole
fine, the slave is thereby rendered pure ;
and the stains of guilt being thus effaced, his
[the pawnee's] claim of debt subsists as be-
fore : but he is not entitled to make any
demand on the pawner on account of the
sum which ho paid in expiation of the crime
of the slave ; for as it was committed whilst
in his possession a circumstance which occa-
sions responsibility),* the atonement for it
therefore rests upon him.
But if he refuse, they are defrayed by the
pawner , who charges the pawnee accordingly,
in liquidation of his debt. — Ijr, however, the
pawnee object to tho payment of the penalty,
the pawner must in that case be ordered
either to pay the fine, or to make over tho
slave in lieu of it ; for the pawner is tho
proprietor of tho slave ; and the fine was
chargable to the pawnee merely for this
reason, that his right is connected with the
slave [in virtue of pawn], and not because of
his being in any respect the proprietor.
Upon his refusal, therefore, the claim of
atonemet for the offence lies against tho
pawnor, as being proprietor of the salve ;
and the atonement, in the present instance,
is either paying the fine of blood, or making
over the slave in lieu of it. If the pawner
adopt the latter alternative, his debt to the
pawnee is held to be completely discharged ;
for the transfer having been incurred by an
offence committed by the slave whilst 111
tho pawnee's possession, he therefore, as
it were, perishes in his hands. If, also,
he adopt the former alternative (that of
paying the fine), his debt is extinguished ;
for as tho slave was (as it were) lost by
the offence, the recovery of him was in-
cumbent on the pawnee, by tho payment
of the atonement. Upon the pawner, there-
fore, discharging such atonement, he, as
it were, retrieves tho slave, and is conse-
* The immediate possessor of a slave is in
a certain degree responsible for his conduct.
?uently entitled to payment from tho pawnee;
or which reason the debt is held to be an-
nulled. It is otherwise where a person
pawns a slave girl who bears a child whilst
in the possession of the pawnee ; for if that
child should either kill a man, or trespass
upon any person's property, it s incumbent
on the pawner in the first instance to make
over tho child in expiation for the murder,
or in compensation for the damage he may
have occasioned ; as the child is not a sub-
ject of responsibility with the pawnee. If,
therefore, the child be given in lieu of the
blood or property, it is excluded from the
contract of pawn, but is not deducted from
the pawnee's debt, — in the same manner as
where it dies a natural death : — or, if, on
the other hand, he pay tho atonement, the
child in that case remains in pawn with its
mother as before.
Rule with respect to the debts increased by
a pledged slave destroying the property <~f
a stranger. — IF a pledged sla-ve destroy the
property of any person to an equal or greater
amount than his value, and the pawnee dis-
charge tho debt thus incurred by the slave,
hia claim upon tho pawner holds good as
before, in tho same manner as whore he pays
a pecuniary atonement for any offence com-
mitted by the slave. In case, however, of
his objecting to such payment, the pawner
is then required either to sell the slave to-
wards discharging of the debt, or to pay it
himself. If he adept the latter alternative,
the claim of the pawnee is cancelled, in the
same manner as explained in the example of
atonements. If, on the contrary, he prefer
tho former alternative and (declining to pay
the debt himself) sell the slave towards the
discharge of it, in that case the person who
sustained the injury must first take what is
due to him from the price (his claim having
preference to that of the pawnee), and then,
if anything remain, in inquiry must be made
whether the claim of the proprietor of the
goods was greater equal to, or less than that
of tho pawncee T — If it be either equal to, or
greater than the claim of the pawnee, the
residue of the price is appropriated to the
pawner, and the debt of tho pawnee is held
to bo annulled ; for upon the slave being
sold towards tho discharge of a debt attach-
ing to him in consequence of an offence com-
mitted whilst in the possession of the pawner,
the case becomes in effect the same as if he
had been destroyed in tho pawnee's posses-
sion. If, on the contrary, the claim of the
proprietor bo less than that of the pawnee —
the claim of the pawnee is in that case an-
nulled only in proportion to the sum dis-
bursed to the proprietor and the remainder
is detained in pawn in lieu of the slave : —
wherefore, if tho pawnee's debt be at that
time due, he may then take this sum as a
satisfaction for it but if the term of pay
ment should not have arrived, he must re-
tain it in his hands until his debt become
payable. If, on the other hand, it should so
happen that the price of the slave doet no)
PAWNS.
[VOL. IV
altogether suffice towards tho discharge of
the proprietor's debt, he [the proprietor]
may in that case take the whole of the price,
but without making a demand on any person
for the remainder, until such time as the
slave may have become free ; for his right
relates to the slave ; and as th« slave has
been sold towards miking snti.s faction for it,
his claim therefore to whatever part of the
right may not have been thu* discharged, is
suspended until the slave obtain hia freedom,
when it may bo again urged ;— and if the
slave, after obtaining his freedom, should
thus discharge the remainder, he is not then
entitled to claim a reimbursement from any
person, as the money be disbusred was due
from him on account of his own act.
// the value *f the slave be twice the
amount of the debt, the fines incurred by
him are defrayed equally by both parties.
--IF a person pawn a slave valued at two
thousand dirms in security of a debt of one,
thousand, and the slave commit an offence
in that case the pawner and pawnee must
both be ordered to pay the atonement; tor
a moiety only of the slave is insured with
the pawnee, the other moiety being with
him as a trust ; and accordingly the atone-
ment, for the insured moiety is chargablo to
him, and that of the other moiety to the
pawnee. If, therefore, the pawner incline
to give the slave as a composition for the
offence, and the pawnee assent thereto, his
[the pawnee's] debt is extingusihed. If, on
the contrary, the parties disagree (one of
them inclining to give the slave in composi-
tion, and the other wishing to discharge the
atonement), the declaration is in that case
accepted of the party who perferd paying
the atonement, whether it be the pawner or
pawnee ; for if the pawnee pay the atone-
ment, still the right of the pawner is not
annulled ; whereas the pawner, in commut-
ing the slave for the penalty, would destroy
the right of the pawnee. Jf the pawnee
pay the atonement, a part of the payment,
in proportion to tho part [of the slave] he
held in trust, is considered as gratuitous
(for this reason, that if he had not chosen
to pay it, the matter would have rested
upon the pawner), and such being the case,
he has no claim upon the pawner for an
indemnification. — If, on the contrary, the
pawnee refuse to pay the atonement, and
the pawner discharge the whole, a moiety
of it is in that ease placed to the account of
the pawnee (that is to say, is deducted from
his claim) ; for as, in all cases where pledged
slaves commit a crime, the debt of the
pawnee is held to be extinguished upon the
pawner either making over the slave, or
paying the atonement, it follows that the
pawner, in paying the atonement, does not
* This does not mean that each is to pay
the atonement [for that would be to pay it
twice], but that the obligation of atoning of
the 'offence rests upon the one as well as upon
toe otter.
act gratuitously. As, therefore, a moiety of
the atonement is due from the pawnee, if
such moiety be equal to, or greater than his
claim, the whole of his debt is extinguished;
or, if it be less, a proportionate part ; whilst
the slave is detained in pawn in security of
the part remaining due.
The executor of a dtcmsed pawner may
sell the pledge, and discharge the debt, with
the pawnees consent.— IP a pawner die, his
executor is empowered to sell the pledge,
and discharge tho debt, provided he obtain
the consent of the pawnee ; for as the exe-
cutor represents the pawner, he has conse-
quently the same power and privilege as
had appertained to him during hia lifetime.
But if a pawner die without leaving an
executor, it then belongs to the Kazoe to
appoint a person to act in that capacity ; as
it is his duty to conserve the rights of those
who are themselves incapable of maintain,
ing them ; which purpose is fulfilled in the
appointment of an executor, who may dis-
charge the debts of the deceased, and receive
payment of his claims \ipon others.
An executor cannot pawn effects of the.
defunct to any particular creditor.- IP an
executor pawn part of the effects of the
defunct to one of his creditors, it is illegal,
and the other creditors may co,mpel him to
revoke the pawn ;— for an executor, not
having the power of paying same of the
creditors, and of excepting others, cannot
therefore give pledges to some and not to
others ; as a pledge is held to bo the same,
in effect, with an actual payment. If, there-
fore, the executor should, in tho meantime,
discharge the claims of the other creditors,
the pawn which he before made is valid,
since in satisfying them he removes tho bar
to its legality.
Unless there be only one.— But if tho de-
funct should leave only one debt against
him, in that case the executor is justified in
pawning part of the effects in security of it;
for, since he has a power of giving part of
the effects, in payment of the debts of the
deceased, he may consequently deposit part
of them in pledge ; and if, afterwards, he
sell the pledge as a moans of discharging
the debt, it is lawful, because the sale of the
effects of the defunct with a purpose to pay
off his debts being lawful when they are not
pawned, it is consequently so likewise when
they are pawned.
He may receive pledges in security for
debts owing to the defunct.— IP an executor
take a pawn in security of a debt due to the
defunct, it is lawful ; because the seisin of a
pawn is the same as a receipt of payment ;
and it is the duty of an executor to receive
payment of the debts of the deceased. (A
more particluar explanation of the powers
of an executor, with respect to pawns, shall
be given in treating of Executorships.)
Section.
Qrape-juice still remains in pawn after
having become wine and then vinegar. -1* a
BOOK AJLVIII.— CHAP. IV]
PAWNS.
661
person pawn, in security of a debt often
dirms, a quantity of tho juice of grapes
the same value, which afterwards becomes
wine,* and then vinegar, and tho value oj
the vinegar be also ten dirms, it in that case
remains in pawn for the debt of ten dinus
because whatever is fit to be sold is likewise
fit to be pawned, since worth is requisite to
the fitness in tho one instance as well as in
the other ; and wine, although not at first
qualified for sale, does yet possess that fit
ness ultimately;— whence it is that if a per
son purchase the juice of grapes, and ii
become wine prior to his taking possession
still the compact of the sale is not dissolved
but tho purchaser has, in such case, tho
option of either adhering to, or receding
from the bargain ; as the goods which he
purchased, having been changed, are thereby
as it were damaged.
A pledge destroyed in part is still retained
in pawn with respect to the remaineder. — IF
a goat, estimated at ten dirms, having been
pawned for a debt of the samo amount, should
afterwards die, and its skin be preserved so
as to bear a value of one dirm, it is detained
in pawn in security of a like part of tho debt ;
for as a contract of pawn is completed and
perfected by tho destruction of tho pledge
(since tho object of it namely, a payment of
debt, is then obtained), it follows that where
a part of tho pawn remains, tho contract
continues in force in proportion to that part.
It is otherwise where a goat, having been
sold, dies before tho purchaser takes posses-
sion, and tho skin is preserved ; for in that
case the contract is completely void (that is
to say, it docs not subsist even in regard to
the skin) ;— because sale is rendered void,
and entirely done away, be a destruction of
the goods before the delivery of them to the
purchaser ; and such being tho case, it can.
not (in this instance) revert with respect to
the skin.
Any increase accruing from the pledge is
deatined in pawn along with it.-— EVKRY
species of increase according from a pledge
after the execution of tho contract (such as
milk, fruits, wool, or progeny), belong to tho
pawner, as being the offering of his pro-
perty :— but they are, nevertheless, detained
with the original in pawn; for branches are
dependent on the stock; and the contract of
pawn, being of a binding nature, extends
over all its branches. If, however, this off
spring be destroyed in tho pawnee's hands,
he is not responsible for it ; because no part
of the sum opposed to the original is opposed
to the offspring, as that was not originally
included in tho contract, since tho proposal
and acceptance which form the contract did
not relate to, or comprehend it. If, on the
contrary, tho original be destroyed, and the
offspring remain whole, it is incumbent on
bho pawnor to redeem the same, by paying
* By fermentation. (For an explanation
of this, see Prohibited Liquors.)
its proportionate value ; that is to say, the
debt must be divided proportionately to the
vaiuo which the original bore at the time oi
concluding the bargain, and that which the
offspring bears at the time of redeeming it j
and tho proportion given to the original is,
upon tho loss of it, held to be annulled ; bu6
that of the offspring remains due, and must
be paid by the pawnee towards the redemp-
tion of it.* (A variety of cases are deter-
mined by this rules, several of which are se1
forth in the Kafayat-al-Moontihee ; and the
whole are enumerated in tho Jama Sagheei
and Zeeadat.)
The pawnee, using the product from, the
pledge by permission of the pawner, is not
liable for any thing on that account. — IF a
person, having pawned a goat, desire the
pawnee to milk it, giving him, at tho same
time, permission to enjoy whatever quantity
he might milk, and the pawnee act coord-
ingly, he is not liable to compensate for tho
milk he may have thus consumed, nor is his
claim, un that account, in any measure dimi-
nished, since he used the milk at the instance
of the pawner. If, therefore, the goat die
unredeemed in the hands of the pawnee, the
debt owing to him must be divided into two
parts, proportionate to tho value of the goat
and of the milk ; and that part opposed to
the goat is cancelled ; whilst the other part,
opposed to tho milk, remains due from the
pawner ; because, although the milk be the
property of tho pawner, yet as tho pawnee
consumed it by his desire, tho case is the
samo as if the pawner had himself taken
and destroyed it. The pawnee, therefore,
is not answerable for the milk : but (if the
goat die) his claim still exists with respect
to that proportion which corresponds with
it. The same rule also obtains with regard
to the offspring of a goat, which a pawnee
eats at the desire of the pawner ; and, in
*As this is somewhat obscure, it may be
proper to render it more clear, by a stat*'
inent of the case according to the rules of
proportion. Suppose, therefore, the debt to
bo one hundred dirms, the original pledge
valued at ono hundred, and its offspring at
fifty,— in that case the original and offspring,
amounting to one hundred and fifty dirms,
are pawned in security of one hundred dirms.
—Now, in order to know the proportions of
pawn which tho original and the offspring
respectively bear to the whole debt, the
atter must first be multiplied by the ori-
ginal ; and tho multiple divided by the
whole value of both (original and offspring),
and tho product gives tho proportion of the
original ; after which the same process must
>e observed with respect to the offspring ;—
whon tho calculation \\ill stand thus.
150 : 100 : : 100— 66 1 the proportion of
the original pledge.
150 : 100 : : 50—33} the proportion of
the offspring.
PAWNS.
[VOL. IV
fine, with respect to every increase accruing
from pledges posterior to the contract.
The pledge may be augmented, but not the
debt. — -THE augmentation of a pledge is
lawful, in the opinion of all our doctors ;—
as where, for instance, a person, having
pawned a slave for a debt of one thousand
dirms, afterwards gives the slave a garment
to be detained likewise in pawn in security
of the same debt ; — in which case the
addition so made to the original pledge is
lawful, and the garment is included in the
agreement ; the case being , in short, the
same as if the slave and garment had been
originally pawned together. On the other
hand, the increase of a debt in security or
which a pawn has boon taken is not lawful
(According to Haneefa, and Mohammed) ;
that is to say, the pledge opposed to a par-
ticular debt does not also stand opposed to
any increase upon it. Aboo Yoosaf holds
that both debts arc liquidated.— The addition
to a pledge, as here stated, is termed Zceadit
Koosdee, or intentional increase ;* and the
debt is to be between the value tho original
pledge bore at the time of pawning it, and
that which the addition bears on the day of
its delivery. — Hence if tho value of the
latter was then five hundred dirms, and that
of the original pledge at the time of conclud-
ing the agreement one thousand, and the
amount of the debt likewise one thousand,
the debt is in that case divided into three
shares, two of which are opposed to tho
original pledge, and tho remaining one to
the increase ; and according to this propor-
tion they are respectively charged for, if lost
or destroyed in the hands of tho pawnee.
Case of increase to a pledged female, slave.
— -IP a person, in security of a debt of one
thousand dirms, pawn a female slave of the
same value, who afterwards brings forth a
child likewise estimated at one thousand
dirms, and the pawner then increase the
pledge by the addition of a slave also valued
at one thousand dirms (saying to the pawnee,
"I have added this slave to the child of the
pledge"), the slave is in that case pawned
with the child only. If, therefore, the child
afterwards die, the slave is no longer in
pawn, insomuch that the pawner may
resume him from the pawnee without
making him any return. If, also,the slave
should die, or be lost, nothing is chargable
on that account to the pawnee, — -If, on tho
other hand, the mother should die, the debt
must in that case bo divided between the
value she bore at tho time of concluding the
contract, and that which the child boars on
the day of redemption ; — -nnd since the slave
was attached solely to the child, the share of
the child must therefore be proportionably
divided between it and the slave, agreeably
to their respective values, in order that if
cither of them should die he may be charged
for accordingly. If, on the contrary, the
* To distinguish it from accidental in
crease by breeding, vegetation, &c.
pawner attach tho slave to the mother (say-
ing to the pawnee. "I have placed him with
her in addition to tho pledge"), the debt
must in that case bo proportionably opposed
to the mother and the slave, according to the
value which they severally bore at tho time
of seisin ; and from the sum opposed to the
mother a proportionate part must bo allotted
to the child ; for the pawner, in having
placed tho slave with the mother, joined
him (as it were) to the original matter of the
agreement-— ; whence the child is included in
the proportion of the mother only.
Case of a pawner committing one slave in
pawn for another.— IF a person pawn a slave
valued ut one thousand dirms in security of
a debt of the name amount and afterwards
give the pawnee another slave, likewise of
the same value, to be detained in place of
the former, in that case tho first slave is
considered as being in pawn until such time
as tho pawnee restore him to tho pawner in
the way of annulment, tho second slave
being merely a deposit in his hands until ho
bo regularly rendered a substitute for the
other ; for tho first slave was included in tho
responsibility of the pawnee only because of
his being possessed in security of debt ; and
as both the seisin and tho debt still exist,
the slave therefore continues a subject of
responsibility until the soisin bo formally
voided ; and such being the case, tho pawnee
is not liable for tho scond slave, as tho
parties intend one of them only to bo in-
cluded in tho pawnee's responsibility : — -but
upon tho pawnco restoring tho first slave to
tho pawner, ho becomes responsible for the
second.
The pawnee is not responsible for the pledge
after having acquitted the pawner of his debt.
— -IF tho pawnoo acquit the pawnor of tho
debt, or bestow it on him in gift, and tho
pledge, bo afterwards destroyed in his (the
pawnee's) possession, ho is not responsible
for it, according to our doctors, proceeding
upon a favourable construction of tho LAW :
— -contrary to tho opinion of Ziffcr. The
reasons for a favourable construction of the
LAW in this particular are twofold.— FIRST,
a pledge is insured on two conditions ; — one,
that it bo actually possessed by the pawnee ;
and another, that it bo opposed to a debt
cither due or promised. Now, compensation
for a pledge in tho case of a debt then duo,
is made in this manner,— that if the pawn
bo lost in tho hands of the pawnee, his debt
is extinguished, provided tho value of the
pledge bo adequate to tho amount of the
debt ; whereas compensation in tho case of a
promised debt is made by constraining the
pawnee, in case of the decay of the peldgo
in his hands, to make good to the pawner
the sum he had promised ; — -and in a case
where tho pawnoo acquits the pawnor of
tho debt, or bestows it on him in gift, tho
second condition is wanting, as no debt exists
in that instance either duo or promised.
SECONDLY, one object of a pawner in deli-
vering the pledge to the pawnee is that, in
BOOK XLIX.]
OFFENCES AGAINST THE PERSON.
669
case of its loss, he may be absolved from
any further obligation; but where the
pawnee acquits the pawner of the debt, and
the pawn is afterwards lost in his hands, the
desire of the pawner being accomplished, the
pawnee is not therefore liable for it (unless
however, the pawnee, having remitted the
debt, refuse to restore the pawn, and prevent
the pawner from resuming it ; for, in that
case, if the pledge bo lost, he is responsible
for the value, since by such obstruction ho
becomes an usurper, as he no longer possesses
a power of obstruction).— In the same man-
ner, if a woman take a pledge from her hus-
band in security of her stipulated dower,
and afterwards exempt him from the pay-
ment of it, or apostatize from the faith befor
consummation, and the pledge be then de-
stroyed in her hands, she is not responsible for
it, as the dower (like the debt) was remitted.
1} the pledge be destroyed trith him after
he has received payment of his debt, he must
return what he has received, and the debt
stands liquidated. • IF a pawnee receive pay-
met of his debt, either from the pawner or
from an unconcerned person, in a gratuitous
manner, and the pledge be afterwards de-
stroyed in his possession, his debt is in con-
sequence, extinguished, and it is incumbent
on him to restore what he had received to
the person from whom ho received it, whe-
ther the pawner or any other ; for the seisin
of he pawnee is equivalent to a receipt of
payment in case of tho loss of the pledge ;
and in the present instance, upon the pledge
being destroyed, the pawneo is accounted to
to have received pay/ment from tho time ho
was first seised of it ; and as he is not on-
titled, after that, to a second discharge, and
the payment he had received as above then
becomes such in effect, it must therefore be
refunded. - Jn short, the discharge of tho
pawnee's claim, whilst ho remains seised of
the pawn, does not take place., but continues
suspended until he deliver it to the pawner ;
and such being the caso, the pawner is riot
therefore, during that time, held to bo ac-
quitted of the debt ;— and upon the pledge
being afterwards destroyed in tho hands of
tho pawneo, his possession of it under such
a circumstance is, in effect, a receipt of pay-
ment, and the other payment received whilst
ho was in possession of tho pledge is an-
nulled and done away, for otherwise a
repetition of discharge would bo induced;—
for which reason he must refund the money
he received in payment,- and also for this
reason that if ho were not to refund it the
intent of the pawner would bo defeated.
And so likewise, if he compound the debt,
— IF a pawnee purchase some specific article
from the pawner in lieu of his debt, or com-
pound the debt with him for somo specific
article ; and the pawn be afterwards lost in
his possession, ho is still responsible, and
may therefore bo compelled to restore tho
article which he had either received in pur-
chase or composition ; for tho seisin of that
article, in either caso, is equivalent to an
acceptance of payment ; and consequently,
if ^he do not refund it, a double receipt of
payment is induced, as mentioned in tho
preceding example.
Or if the pawner (with his concurrence)
transfer the debt upon another person.— 1?
a pawner transfer the debt which he owes
the pawneo upon another person (such as
Zeyd, for instance), who agrees to pay the
same, and tho pawnee, having assented to
such transfer, acquit the pawner of the debt
and tho pledge be afterwards destroyed in
tho pawnco'w hands, the transfer is thereby
rendered ineffectual, and the claim of the
pawnee is annihilated ; for although, in eon-
sequence of tho transfer, the transferred [the
pawner] bo acquitted of any further concern
in tho mater, yet this acquittance is the
same as an actual payment, inasmuch as the
sum, tho payment of which he had trans-
ferred upon tho other person, is ultimately
disbursed by him, he having so transferred
it in consequence of his having a claim upon
tho transferee for a like sum, whence the
payment it made from hijn in effect ;- or, if
that person was not indebted to him, still
tho pawner must afterwards repay whatever
sum he m.iy havo disbursed in consequence
of the transfer, as in that case he acted in
tho capacity of an agent on his behalf.
// the pledge be lost after the parties
agreeing that no debt had existed, it stands
as a discharge of the supposed debt.— IP a
person pawn any thing into the hands of
another, and both parties afterwards concur
in saying that no debt had over subsisted
between them, and tho pledge be then de-
stroyed in the hands of the pawnee, it is
answered by the debt; in other words, the
dobt in security of which the thing had been
pawned is extinguished ;— for there ia still
a probability of tho debt being established
by tho parties at some future period concur-
ring and agreeing that it did exist; whence
it is possible that the debt may be claimed, —
a circumstance which cannot happen in a
case of acquittal of debt.
BOOK XLIX.
OF JANAYAT, Oil OFFENCES AGAINST
THE PERSON.
Definition of Janayat.— JANAYAT, in the
language of the LAW, is a turn expressive
of any prohibited act committed either upon
tho person or property :-— in tho practice of
lawyers it signifies that prohibited act com-
mitted upon tho person,* which is called
* Arab, Zat, signifying the body connected
with tho soul ; in opposition to Badn, which
means simply tho material body. The trans-
lator renders it person or life, as beat aifitg
the context,
tao
FINES
[VOL, 17
murder, or upon a part of the body, which
is termed wounding or maiming.
Chap. I. — Introductory.
Chap. II.— Of what occasions Retalia-
tion.
Chap. III. — Of Retaliation in Matters
short of Life.
Chap. IV. — Of Evidence in cases of
Murder.
Chap. V. — -Of the Circumstances under
which Murdor takes place.
(This subject, coming unJir the Ptnal Code,
is omitted IMC.)
BOOK L.
OF DBENYAT OR FINES.
Definition of Deenyat, — DEENYAT is the
plural for Deyit, which signifies the fine
exacted for any offence upon the person..
Chap. I.— introductory.
Chap. II. — Of Nuisances placed in the
Highway.
Chap. 111. — Of Offences committed by or
upon Animals.
Chap. IV.— Of Offences committed by or
upon Slaves.
Chap. V.— Of Offences committed by
usurped Slaves, or Infants, during
the-TJsurpatjon.
Chap. VI. — OfKissamit, or the admini-
stration of Oaths.
CHAPTER I.
(This subject has been omitted in consequence
of its forming part of the Penal Code.)
CHAPTER II.
OF NUISANCES PLACED IN THE HIGHWAY.
Buildings or timbers placed in or projecting
over the highway may be removed by any
person whatever.— Iv any person construct
a bath, or set out a water-spout, or erect a
wall, or set out timbers from his wall to
build upon, or set up a shop or both. — in
the public road, every other person is at
liberty, however mean and humble his con-
dition, to pull down the same, and remove
it ; because all people are entitled to a free
passage along such a road fur themselves
and their cattle ; and the case is therefore
the same as where a stranger erects a build-
ing upon a partnership property ; in which
instance any one of the partners is at liberty
to remove such building ; and so hero like-
wise the removal is lawful to a]], as all are
alike partners in the rights of the road. It
18 lawful, however, for the person in question
in all the above oases, to make use of the
bath, fountain, or so forth, where they are
no way injurious to the community; for as
he has the right (in common with others)
of passing and repassing, it follows that,
provided there be no inj ury sustained, the
obstructing him in the enjoyment would be
vexatious. But if they be injurious to the
community, the use of them is abominable.
They cannot be erected or set up in a
closed lane without she conset of the inhabi-
tants.— IT is not lawful for an inhabitant of
a lane shut up at one end to construct in it
a bath, set out a spout, on so forth, without
the consent of the other inhabitants, whether
it be injurious to them or otherwise ; for as
the lane is, in fact, their property (whence it
is that the right of Shnffa with respect to
the houses in it appertains equally to them
all), their acquiescence is therefore indis-
pensable. In a public road, moreover, tbo
conversion to particular use is lawful to
all men indiserminately, excepting only in
instances where it may prove detrimental ;
for as it is impossible to obtain the acquies-
cence of every individual of the community,
each is therefore accounted a proprietor, lest
his right of use should bo altogether de-
feated : — -but it is not so in a closed lane ;
for as it practicable to obatiri the acquiescence
of all the inhobitants of the lane, the pri-
vileges of partnership therefore hold good
both actually and virtually, with respect to
each individual of them.
A person erecting a building, &c.t in the
highway incurs a fine for any person.-^lv a
person erect a building in the public high-
way, as before mentioned ,and it happen to
fall upon and destroy any one, a fine is due
from the Ak ilas of the person in question;
because ho as the occasion of the destruc-
tion, and was guilty of a transgression in
having erected a, building such a situation
and a person who occasions a destruction is
responsible where ho has in any respect trans-
gressed, as in the case of digging a well in
the highroad. The same rule also obtains
where the building fails upon and thus de-
stroys a man or an animal.
(Or number of persons) it may occasion
the destruction of. — -lv a man stumble over
the ruins of such building, and fall upon
another man, and they both die, the person
who erected it is responsible for both, and
nothing is duo from him who fell upon tho
other ; for as tho builder was tho primary
cause of the accident, the case is therefore
the same as if he had struck the person who
fell, and so caused him to fall upon the
other, and they had both died inconse-
quence.
Case of death occasioned by the fall of a
spout. — IF a water-spout, set out from a
house over the public road, fall upon any
person, and kill him, an examination must
be made to discover which part of the spout
it was that hit the person ; and if it appear
that he was struck by the end next the
house from which it had projected, no atone-
ment is due from the person who set it up,
BOOK L.— CHAP. XL]
PINES.
661
because with respect to that part he is not a
transgressor, since he had placed that in his
own property ; but if it appear that the
deceased was struck by the projecting end,
the person who set it up is responsible, be-
cause with respect to that part he is a trans-
gressor, as having caused the spout to project
over the road without any necessity, since
he might to as good purpose have fixed it up
so as not to project over the road at all.—
(It is to be observed that in this instance
expiation is not incumbent on the fixed up
of the spout ; — nor is he excluded fro<m in-
heritance ; for he is not actual perpetrator,
but stands merely guilty of homicide by an
intermediate cause.) — If, on tho other hand,
it appear that the deceased was struck by
both ends of the spout, tlte fixer- up is re-
sponsible for an half of the fine, and the
other half drops ; in the sumo manner as
where a person is wounded by another, and
also by a lion or tiger, and dies,— in which
case an half only of the fine is due from the
wounder. If it cannot be discovered which
part of the spout struck the deceased, in
this case also an half of the fine is duo ; for
the accident may have happened in either of
two ways, in one of which the complete fine
is due, and in the other nothing whatever ;
and therefore, in contemplation of both cir-
cumstances, an half is imposed.
A person having Jived tip a nuisance upon
his house, is responsible for any damage it
may occasion even after he has sold the house.
— IF a person construct a balcony, projecting
from his house, and then sell the house, and
the balcony afterwards fall upon any person
and destroy him, — or, if a peison set up a
piece of timber in the middle of the high-
way, and afterwards s^ll it, and deliveiy it to
the purchaser, and he (the purchaser] declare
him acquitted of all accidents which may
happen from it, and leave it there until it
fall and kill some person,-— the seller is re-
sponsible in both instances, and nothing
whatever falls upon the purchaser ; because
the act of tho seller (in constructing the
balcony, or setting up the timber) is not
done away by the extinction of his property ;
and as such act occasions responsibility, he
is responsible accordingly and not the pur-
chaser, who has not done any act to occasion
responsibility.
A person laying fire, in the highway is
responsible for anything which maybe burnt
in consequence. — -!F a person, lay fire in the
highway, and any thing be burnt in conse-
quence, he as having transgressed, is respon-
sible for the damage. If, however, after the
fire being thus laid in the highway, the wind
should blow it to another place, and any thing
be burnt in consequence, he is not respon-
sible, as by the wind carrying off tho fire
his act is done away. Some, indeed, say
that if tho fire was laid in the highway at a
time when the wind was high, he is respon-
sible ; because he laid the fire there, not-
withstanding his knowledge of the probable
consequence f and therefore the act of the
wind, in carrying it off, is in effect the same
a*f if he had himself carried it to the place
which was burnt.
Workmen constructing a nuisance are re-
sponsible for any accident it may occasion
before their work be finished.— If a person
hire workmen for the purpose of constructing
a balcony, or a penthouse, and such bal-
cony or penthouse fall upon and kill a
man before the workmen had finished it, the
responsibility falls entirely upon the work-
men ; for the deceased was destroyed in con-
sequence of their act ; and so long as they
continue engaged in tho work, the balcony
or penthouse is not held to bo delivered to
their employer. Their act is therefore con-
strued into homicide, insomuch that they
must perform an expiation for it. Besides,
as their employer did not hire them to kill
any person, but to construct an erection, the
accident has therefore no relation to the con-
tract of hire, but attaches to the workmen
alone, whence the damage also attaches solely
to them, as being a consequence of their act.
If, on the contrary, the balcony or penthouse
in question fall after the work is finished,
the owner of the house is responsible, on a
favourable construction ; for in this case the
contract of hire has been completely fulfilled,
insomuch that the workmen have become
entitled to their wages. Their act has there-
fore devolved upon their employer, who con-
sequently stands in the same predicament as
if he had himself performed the work ; and
he is responsible accordingly.
A person is responsible for any accident
occasioned by his throwing water in the
highway. — -!F a person spill water on the
highway, either purposely, or by performing
his ablutions there, and a man or animal
perish in consequence, a fine for the man is
duo from the person's Akilas, or a com-
pensation for the animal from the person
himself; because he has been guilty of a
transgression, injurious in its consequences
to tho passengers iipon the road. It is
otherwise hero water is spilled in a closed
lane by one of the inhabitants, and a man
or animal perishes in consequence ; or, where
an inhabitant of such a lano sets down any
thing in the middle of it, and a man or
animal falls over the same, and so perishes ;
for in none of these cases does responsibility
attach to him, as any inhabitant of a closed
lane is entitled, in virtue of his residence,
to perform these acts in such lane, in the
same manner as in a partnership house.
Lawyers remark that what is here advanced
applies only to a case where water is spilled
upon tho road in large quantities, such as
commonly renders the footing insecure ;—
but that *if the water be only in a small
quantity, and not in a degree to endanger
the passenger, there is no responsibility.
Unless the person who sustained the damage
had wilfully passed over such water. — IP a
person knowingly and wilfully pass over a1
road in which water has been spilled, ag
above, and perish jn ponsequence of
662
FINES.
[VOL. IV
in it, nothing whatever ia incurred by tho
person who spilt the water, since hero tho
deceased has perished from his own wilful-
ness or obstinacy. Some, however, remark
that this rule obtains only where the water
iSr spilled over a part of the road, for in that
case a part remains unaffected by it;—
whereas, if it extend over the whole road,
the passengers have no option ; and (as they
further observe) tho same distinction holds
with respect to timbers, or other nuisances,
act up in the highway.
The person who directs water to be
sprinkled in the road ia responsible for
accidents. — -]F a shopkeeper desire a person
to sprinkle water in the front of his shop,
and another person fall there, and dio in
consequence, the responsibility rests upon
him who gave the order (the shopkeeper),
on a favourable construction (and so like-
wise, if a shopkeeper hire a workman to
erect a stall or other edifice in the front of
his shop, arid after it is finished a person full
over it and die); — because tho order given
by the shopkeeper is of a lawful nature, MM
right to the precinct* in front of hid shop
being superior to that of any other person ;
and therefore the act of the person whom he
directed must be referred to himself. --It is
otherwise where a person orders another to
throw water, or erect an edifice on the
middle of the highway; for in ihis ease the
responsibility rests upon him who obeyed
the order, as an order to this effort is unlaw
ful, the man who gave tho order possessin
no superior right in the highway.
Case of a person digging a wdl or Cat/ing
a stone, in the highway, — fF a person dig a
well, or lay a stone, in tho middle of the
highway, and a man perish in consequence,
a fine U due from tho Akilax of the person
who placed such nuisance there. If, on he
contrary, an animal were thus to porish, tlio
compensation for tho same would bo due
from the property of the person in question ;
because, as he has been guilty of a trans-
gression, ho is therefore responsible for any
accidents it may occasion; and as the Akilis
are not implicated except in offence* aguirmt
the person, it follows that, in cases of pro-
perty merely, the responsibility rests solely
upon the offender himself.
The throwing dirt9 or digging a hole, in the
highway ia the samp as placing a stone there.
— THE throwing of dirt or earth in the high-
way, or the carrying away of earth thenco,
so as to occasion an hollow, is tho same as
placing there a stone or log of wood, for the
reasons already explained. It is otherwise
where a person merely sweeps the road, ; for
in this case he is no way liable to respon-
sibility, as his act of sweeping docs not
occasion any nuisance, but rather tho con-
trary. If, however, this person leave an
heap of the sweepings in the road, so as to
occasion accidents, ho is responsible, since in
acting thus he is guilty of a transgression.
The remover of a nuisance to another spot
incur* responsibility for any accident it may
afterwards occasion.— I a person lay a stone
in tho highway, and a second 'person remove
the stone to another part of the road, and a
man bo thereby destroyed, the responsibility
rests upon the romover of tho stone ; because
tho act of tho original depositor is abrogated
in its effect, by the placo which he had
occupied with tho stone being cleared, and
another placo being occupied with it by the
act of tho remover,— who is therefore re-
sponsible for the consequence.
There is no responsibility for accidents
occasioned by a sewer constructed in the
highway by public authority.— IT is re-
lated in tho Jama Saghucr, that if a
person construct a common sewer in tho
public highways, by tho order or compulsion
of tho JSultaii, ho is not responsible for
consequences ; because, in constructing the
sewer, he has not committed any trans-
gression, for in so doing he acted by order
of the Sultan, who possesses a paramount
authority with respect to all public rights.
It is otherwise where a person does so
without such an order ; for in that case he
is responsible, as having transgressed, in
presuming to one-roach upon the 'public
rights without a Hiiilieient authority : — be
sides, acts with respect to tho highway are
permitted under a condition of safoty, — -that
is, under tho condition that thoy bo not
injurious. It is to bo observed that this
distinction holds in all case.* of acts with
respect to tho highway, as tho same* reasoning
equally applies to every other instance.
A person digging a wdl in his own land is
not responsible for any death it miy occasion.
— IP a person dig a well in his own land,
and another bo killed by falling into it, tho
digger of tho well, is not responsible, as he
has not transgressed; and tho same rule also
hold where a person digs a well within tho
precinct * of his house, a man boing entitled
so to do , for tho purposes of domestic
convenience. Some say that this rule with
res poo t to a well dug in tho precincts of a
house holds only in cases whero tho house,
holder has either a property in such pro-
rinofcs, or possesses a right, by immunity,
of digging therein ;— but that where the
precinct is public, or held in partnership
(as in the case of a court or closed lane), the
digger in responsible, since in digging the
well under such circumstances ho is guilty
of a transgression. — This is approved,
A person falling into a well and there
dying of hunger, does not occasion responsi-
bility.— IF a person dig a well or pit in the
highway, and another happen to fall in, and
there porsih of hunger, tho digger ia not
rospon^iblo, according to Hanoofa, because
tho deceased has hero died of hunger, and
not in consequence of tho excavation, as he
death cannot be attributed to tho latter
unless ho bo killed by the fall, which is njt
tho case in this instance.
Workmen employed to dig a well in
another's land are not responsible for acci-
dents unless they be aware of the tresapas+-?
BdbK I.— CHAP. II.]
FINES.
663
IF a person hire workmen to dig a well
the precincts of his neighbour's habitation
and they dig it accordingly, and a man be
killed by falling into it, the responsibility
rests upon the employer, not upon the work-
men, provided they dug the well under the
idea of the place being within the precincts
of their employer ; because, as a contract to
hire, ignorantiy engaged in, is lawful and
valid in appearance, their act is therefore
referred to the hirer, they themselves having
proceeded under a deception : — the case
being, in fact, the same as where a person
desires another to slay "such a goat," and
he does so accordingly, and it afterwards
appears that the goat was the property of
another, — -in which case the compensation is
paid by the person who gave the order. It
is otherwise where the workmen dig the
well, knowing, at the same time, that the
place is riot within the precincts of the
employer ; for in this case they are re-
sponsible ; because the contract is not here
valid in appearance, as they have not been
deceived.
The builder of a private bridge, <fcc., is not
responsible for any life which may be lost in
passing over it.— IF a person construct a
bridge, or lay a plank, in the highway [over
a stream] without authority, and another,
wilfully passing over such bridge or plank,
fall off and perish, still the person in ques-
tion is not responsible ; because although he
bo the creator of the cause, arid therefore a
transgressor, yet as the dccesaed was a wil-
ful agent* and transgressed in his own
actt his destruction is therefore referred to
himself; and also, because where tho act of
one who has an option intervenes, it precludes
the reference of tho destruction to tho first
agent ; as where (for instance) a person digs
a well in tho highway, and another gives a
man a push, and thereby causes ium to fall
into the well, so that he dies,— in which c.iso
the responsibility rests upon tho person who
gave the push, vsinco his act, being tho act of
a wilful agent, precludes a reference of tho
destruction to tho digger of tho well.
A porter is responsible for accidents occa-
sioned by his load.—le a person bo carrying a
load upon tho highway, and tho load fall
upon any person so as to kill him, or fall in
the road so as to cause a preson to stumble
and thereby occasion his death, tho respon-
sibility rests upon tho carrier ;— whereas, if
a person be wearing a cloak upon tho high-
way, and it fall upon any person, or upon the
road so as to occasion death, tho carrier of
the cloak is not responsible. Tho difference
between these two cases is, that as tho busi-
ness of the carrier is to take care of his parcel
or load, the circumstance of restricting his
* Arab. Mohashir ; — literally a perpetra-
tor.
t (Probably) as having passed over tho
bridge, &c., without leave from the builder
of it.
liberty of carrying it to the condition of safety
does not operate as a hardship upon him ;-—
w/iereas, tno business of tlio wearer is not
merely the taking care of his garment, but
ttic wearing of it ; and therefore, as tho re-
stricting his liberty of use to tho condition of
safety would operate as a hardship, iiis use
of it is not restricted to any particular con-
ditions, but is allowed to him generally.
A stranger lianging up a lamp, or strewing
gravel, <kc., in a mosque, is responsible Jor any
accidents which may arise t/ierefrom.—Lv *
person hang up a lamp, or spread a carpet,
or strew gravel in a mosque appropriated to
any particular tribe or people, and any per-
son perish in consequence, nothings is incurred,
provided the person who hung up the lamp,
or so forth, bo one of that peol>lu ;— wnoroas,
if a stranger do any of these acts, he is re-
sponsible, in the satne manner, if one of
tnc people of a mosque sit in that mosque,
and any person perish in consequence, ho is
not responsible, provided he be, at tno time
engaged in prayer : but if ho be engaged in
reading the KOKAN, or teaching, or DO wait-
ing for the time of prayer, or sleeping (eitflr
during prayer or at any other time), or con-
versing, ho is responsible. The reason tor
tho law in the former instance is, that as ail
the regulations of a mosque, such as the ap-
pointment of a priest or a supervisor, tuo
opening and shutting of tho doors, and so
iurth, appertain solely to tho people to whom
tho mosque belongs, and not to any others,
their acts are therefore of a natural nature,
and are not restricted to the condition of
safety; whereas tho acts of all others with
respect to it are either transgressivo, or per-
mitted under the condition of safety; and a
pious intention does not prevent responsi-
bility where the person errs in the manner
of his piety. The reason for tho law in the
second instance is, that a mosque is con-
structed particularly for the purpose of prayer,
to which reading the KORAN, teaching, or so
forth, are only (as it were) appendages ; and
as it ii indispensable that a distinction be
made between tho original and tho branch,
or dependent, tho act of prayer (which is the
original) is therefore permitted generally,
without any restriction to tho condition of
safety, whereas all other acts or employments
are so restricted.
But he is not responsible for accident*
occasioned by his own person. — IF a stranger
to tho people of the mosque be at prayers in
it, and a porson fall over him, and die in
consequence, tho stranger is no way respon-
sible ; because (as has been already observed)
a mosque is constructed for the purpose of
prayer ; and although the right of public
prayer appertain solely to the people of that
mosque, yet any person is entitled to pray
there alone.
Section.
Of buildings which are in danger of fatting
The owner of a ruinous wall is responsible
for any accident occasioned by, it after having
66*
FINES.
[VOL. IV
received due warning, and requisition A
pull it down. — IF a wall belonging to any
person lean towards the public highway anc
a person require the owner to pull it down
and call people to witness his requisition
and the owner neglect taking it down unti
ftv length it fall and destroy either man 01
property, the owner is responsible for the
damage so occasioned, on a favourable con
struction. Analogy would suggest that ho
is not responsible (and such is the doctrine
of Shafoi) ; for he has neither perpetrated
the destruction himself, nor done any thing
transgressi vely to occasion it, as he built the
wall in his own right, and its tottering, or
the wind shaking it, were not his acts,
whence the case is the same in effect as if the
wall had fallen previous to the requisition
and calling of witnesses, as aforesaid. The
reasons, however, for a more favourable con-
struction of the LAW in this particular arc
twofold. — FIRST, upon a wall leaning over
towards the highway, the public communica-
tion becomes interrupted, and the way*
occupied by the property of the owner of
that wall. When, therefore, any person
makes application to him, and requires him
to clear the way, it is incumbent on him so
to do ; and he is consequently guilty of a
transgression in neglecting it, and therefore
remains responsible for any damage it may
occasion;— in the same manner as where a
man finds his garment upon another, and
demands it of him ; in which case, if that
other refuse to deliver it, he is guilty of a
transgression, and is consequently responsible
for the garment if it should be lost whilst in
his possession.— SECONDLY, if the owner of
the wall were not made responsible for any
damage its falling might occasion, he would
neglect to remove the nuisance, and con-
sequently passengers would sustain an injury,
as they would be deterred frnm going by the
place, for fear of the wail falling on them.
The removal, moreover, of any thing inju-
rious to the community is a duty incumbent
upon the person to whom it belongs ; and as
the owner of the wall is the person immedi-
ately concerned in the present instance, it is
therefore incumbent on him to take it
down, notwithstanding his so doing may bo
prejudicial to himself, since private interest
must yield to public benefit. It is requisite,
however, that such a time be allowed as may
admit of the owner taking down his wall,
this being indispensable to the establishment
of offence from neglect or delay. If (after
the requisition for pulling it down), any per-
son be destroyed by the wall falling, a fine is
due from the Akilas of the owner, not from
the owner himself; for as the offence, in
this instance, is still short of homicide by
misadventure, an alleviaton is admitted a
* Arab. Hawa ; literally, the air, or atmo-
sphere ; a phrase generally used where the
nuisance or obstruction is not immediately
upon the ground.
fortiorii lest the owner should suffer too
severely :— but if, on the contrary, property
(such as an animal, or household goods) be
destroyed, the compensation for it must bo
paid by the owner of the wall, as the Akilas
are not implicated in the responsibility for
property. It is to bo observed that the ap-
plication (that is, the requisition for pulling
clown the wall) is a condition of responsibility,
but not the taking to witness ; for the latter
is called in aid merely with a view to establish
the former, in case of the owner of the wall
denying it, and is therefore used only out of
caution. The application is made by the
claim at saying to the owner of the wall,
"Your wall has become dangerous ;— you
must therefore take it down lest it prove
destructive ;" and the taking to witness is
effected by his saying to the bystanders, "bo
ye witness that I have required this person
to take down his wall." — It is proper, how-
over, to re-mark that the taking to witness
before a wall has boco«xe ruinous or crooked
is not valid, as transgression cannot estab-
lished previous thereto.
A person building a crooked wall is re-
sponsible for the damage occaioned by its
falling.— \v a person build a wall in tho
highway, leaning over from the first, law-
yers remark that he is responsible for any
thing which may be destroyed by its falling,
independent of the requisition before men-
tioned, as having boon guilty of a transgres-
sion in the building of it, in the same manner
as a person who constructs a balcony or
gallery projecting over tho highway.
The, requisition is established upon the
evidence of one man and two women. — THE
evidence of one man and two women suffices
to establish tho application above described
for it is not here requisite, as in cases of
murder, that both tho witnesses be males,
the death occasioned by tho falling of a wall
not amounting to murder.
A Zimmee, may make it, as well as a Mus-
sulman.— A MUSSULMAN and a Zimmee are
upon an equal footing with respect to the
requisition for pulling down the wall, as all
mankind are partners in the right of passing
along. The application is therefore valid,
by whomsoever it be made,— whether a man,
a woman, a free man, a Mokatib, a slave
[provided his master give him permission
io litigate tho point), or an infant (with
permission to litigate from his guardian). — •
[t is also valid whether made by the Sultan
[)T any other ; for as tho application affects a
matter of right in which all are equally
concerned, all are therefore equally entitled
;o make it.
Or the inhabitants of a neighbouring house.
—IF a wall lean over towards a neighbouring
louse, the owner of the house is entitled to
require it to be pulled down,— or the tenants
whether they be hirers or borrowers, — for to
such persons in particular the right apper-
;ains in this instance.
And if those last grant a term of delay, it
is vaHd.—IV tho owner or tenants of the
BOOK L.— CHAP. III.]
FINES.
665
house grant the owner of the wall a term of
delay, or exempt him from responsibility for
any damage which may be occasioned by it,
it is lawful, and the owner of the wall in not
responsible in caso of any thing being des-
troyed by its fall, because the right of the
owner or tenant alone is concerned. It is
otherwise where a wall leans over a road,
and -the magistrate, or the person who made
the requisition for pulling it down, grants a
term of delay, or an exemption ; for this is
not valid; and the owner of the wall conse-
quently still remains responsible in case of
its falling and destroying any thing: because
hero the right of every one is concerned : and
the magistrate, or the person who made the
requisition, is not at liberty to annul a right
of the public.
A person selling a ruinous house, after
requisition, is not responsible for any
accidents it miy occasion. — TF, after appli-
cation, a person sell a house, the wall of
which leans over, and the purchaser take
possession of it, and any thing be then de-
stroyed by its falling, there is no responsibility
whatever upon either party. — The seller is
not responsible, as offence cannot bo estab-
lished in him unless it apearcd that he
neglected to take down the wall, having
at the same time ability so to do ; and here
his ability has terminated with the sale : — •
neither is the purchaser responsible, because
no application has been made to him. But
if application be made to the purchaser after
the sale, he then becomes responsible, as in
that ease he possesses the ability of comply-
ing with the requisition.
The requisition ( to be valid) must be made
to a person capable of complying uith it.—
THE application and requisition for pulling
down a ruinous wall are valid when made to
any one who possesses the power of pulling
it down ;— but not when made to one who is
not possessed of his power, such as a pawnee,
a trustee, a borrower, or a renter. The
application and requisition in question are
therefore valid when made to the pawner of
a house, as he has it in his power to pull
down the wall by redeeming his house.
They are also valid with respect to a wall
belonging to an infant when made to the
infant's parents or guardians ; and if, after
the requisition, they neglect to pull down
the wall, and any thing be destroyed by the
fall of it, the compensation falls upon the
infant's property, because their act is in
effect the act of the infant. They are like-
wise valid with respect to a Mokatib, as ho
may be authorized to pull down a wall ; and
also, with respect to a trading slave, whether
indebted or otherwise, for the same reason ;
—and if, in this last instance, the slave
neglect to p\ill down the wall, and any
property be destroyed by the wall fall-
ing, the compensation for it rests upon
the slave's person ;*— or, if a man be de-
*That is, he must either be made over or
d, as in other cases of offence
stroyed, the fine is due from the master's
Akilas.
The requisition, wade to one of several
coparceners, affects that coparcener in par-
ticular.— IF a ruinous wall be held in oo-
parcenery by several heirs, and a person
apply to one of the heirs, requiring him to
pull down the wall, the application affeota
that heir in particular ; and accordingly, if
any thing be afterwards destroyed by the
falling of the wall, the heir who was applied
to is responsible in proportion to his share of
inheritance ; for it was in his power to have
remedied the nuisance by referring the mat-
ter to the Kazoo, and representing the cir-
cumstance to him, requiring his order to his
coparceners (if present) to pull down the
wall,— or (if absent) his authority to do so
himself.
After a wall falls, it is the duty of the
owner to remove the ruins, and failing of
this, he is responsible for subsequent accidents.
— IF a ruinous wall fall upon a man, after
application, and destroy him, and another
person fall over the corpse, and so perish,
the proprietor of the wall incurs nothing for
this second person, because the removal of
tho corpse was incumbent upon the heirs,
not upon him. If, on the contrary, another
person, after the wall falling, be destroyed
by stumbling over a fragment of the ruins,
tho owner of the wall is responsible, as it is
his business to clear the road of all such
fragments, since those are his property,and
an application with respect to the wail itself
is (as it were) an application with respect to
the fragments, the intention of it being to
clear the highway.
The owner of a ruinous wall is not respon-
sible for accidents occasioned by the fall of
any article from it, unless such article belong
to him.— IF a person make application con-
cerning a wall which leans over towards the
highway, and it afterwards fall, throwing
down a vase or urn, which had stood upon
it, and a man be thereby destroyed, the
owner of the wall is responsible, provided
the vase or urn was his property, as the
f reeding the road from it rested upon him.
If, on the contrary, the vase or urn be the
property of some other, the owner of the wall
is not responsible, since the freeing the road
from the vase or urn rests upon him to whom
it belongs.
CHAPTER III.
OP OFFENCES COMMITTED BY OB UPON
ANIMALS.
The rider of an animal is responsible for
any damage occasioned by it, which it was in
his power to prevent. — THE rider of an
animal is answerable for any thing which
the animal may destroy by treading it
down, or by striking it with his head, hii%
fore feet, or his body ; but he te not respcn*
666
FINES.
[VOL. IV
sible for any thing which the animal may
destroy by striking it with his hind fact or
his tail. — In short, it is a rule that the right
of passing on the highway is allowed to 'the
whole community, under the condition only
of safety ; for it is the exercise of a privilege
in the passenger, with respect to himself in
one shape, and with respect to others in
another shape, the right of passage being
participated among the whole community,
— whence it is adjudged to all, under the
condition of safety, with a view to the
interest of both parties. — -It is moreover to
bo observed, that a restriction to the condi-
tion of safety can obtain only in matters
where an attention to safety is practicable ;
for if it were imposed where such attention
is impracticable, the exertion of the privilege
[of travelling on animals] would be alto-
gether precluded. Now it is possible for a
man to guard against the animal he rides
treading men or property under foot, and
such like, since a person who rides is under
no necessity of treading down every thing
that lies in his way : but ho cannot guard
against the animal striking things with his
hind feet or tail, since an animal unavoid-
ably uses these parts, in travelling, without
any immediate control from its rider. Ac-
cordingly he is restricted to the condition
safety in the former instance, but not in the
latter.
Any if the stop the animal in the road, he
is responsible for all accidents.— If, however,
- he stop the animal in the highway, he is
responsible for any destruction which may
be occasioned by a kick of its hind feet, or a
stroke of its tail, since it is possible for him
to avoid stopping, although it be not in his
power to guard the animal from kicking,
or so forth ; and therefore, as he trans.
grosses in so stopping, he is responsible for
any damage which may ensue in conse-
quence.
He is also responsible for any injury sus-
tained from a large stone, thrown up by the
animal's hoof. — IF an animal's hoof strike
upon and throw up gravel or small stones,
and a person's eye bo put out, or his clothes
damaged thereby, the rider is not respon-
sible ; whereas, if the animal so throw up a
large stone, he is responsible. The reason of
this is that in the former ease it was im-
possible to guard against the accident, since
an animal cannot move without being liable
to it ; whereas, in the second instance, it is
possible to guard against the accident, since
animals may easily be so guided as to avoid
large stones. It is to be observed that, in
all these cases, a second rider (that is, one
who rides behind the first) is in the same
predicament as the first, with respect to
responsibility.
But not for any accident occasioned by its
dung or urine. — IF an animal, whilst travel-
ling, discharge its dung or urine on the
highway, and any person perish in conse-
quence, the rider is not responsible, since it
was impossible to guard against this; and
the same rule also holds where the animal
stands still whilst discharging its dung or
urine, or when the rider stops it for this
purpose, since there are several animals
which cannot perform these whilst in motion.
Unless he had stopped it on the road
unnecessarily whilst discharging those. — IF,
however, the rider have stopped the animal
for any other purpose, and it discharge its
dung or urine, and any person perish in
consequence, he (the rider) is responsible, as
in so doing he was guilty of a transgression,
since ho stopped the animal without any
absolute necessity, knowing, at the same
time, that this must be injurious to the
passengers.
Responsibility attaching to the driver or
leader of an animal. — THE driver of an
animal is responsible for any damage the
animal may occasion with either its fore or
hind feet, whereas the leader of an animal
is responsible for the damage occasioned by
its fore feet only, not by its hind feet. The
compiler of the lledaya remarks that this is
what is said by Kadooroe in his compendium ;
—and several of our modern doctors coincide
in the same opinion ; because, as a person
who drives an animal before him has a view
of his hind feet, it is therefore in his power
to avoid accidents from them ; whereas, a
person who leads an animal after him, not
seeing or having any command over its hind
feet, cannot possibly guard against such
accidents. Most of our modern doctors,
however, are of opinion that as the driver of
an animnl has no more command over its
hind feet than a person who leads it, he
therefore is not responsible, any more than
the other, for the damage which may be
occasioned by them ;— and this is approved.
IT is written in the Jama Saghoer, that
the driver or leader of an animal is re-
sponsible in all the instances in which
responsibility lies against the rider ; for as
they (as well as one who rides) occasion the
damage by taking the animal to the place
where it is committed, their so doing is
therefore restricted to the condition of
safety, as far as may be practicable, in the
same manner as holds with respect to the
rider.
Expiation is required from the rider of an
animal,— not from the leader or driver.— -THE
rider of an animal is required to perform
expiation only where he has happened to
tread down a person, — not in any other
instance ; — -but no expiatory act whatever is
required from the leader or driver of an
animal. The reason of this is that, in the
case of treadings down a person, the rider is,
in effect, the perpetrator of the homicide, as
it is by his weight that the person is
destroyed, — the weight of the animal being
merely a dependent upon the weight of its
rider, since to him the motion of its must be
referred, it being the instrument of such
motion. It is otherwise with the leader or
driver of an animal : for those are only the
producers of the intermediate cause, and not
BOOK I.— CHAP. TIL]
FINES.
the actual perpetrators of the homicide, as
their acts did not immediately affect the
subject (and the same reasoning holds with
respect to the act of the ridor in all cases ex
cept that of treading down);— and expiation
is enjoined, in cases of homicide, only where
the offender is the actual perpetrator of the
homicide, not where it is effected by an
intermediate cause. In the same manner,
the rider of an animal is excluded from his
succession to the deceased by bequest or
inheritance, in case of treading down, but
not the loader or driver, exclusion from
bequest or inheritance being restricted to
the actual perpetrator.
// there be a rider, as well as leader or
driver, responsibility, attaches to the former,
not to the latter.— ~Iv one man ride upon
an animal whilst anothr drivers or leads it
along; and it tread down a man, some say
that no part of the responsibility falls upon
the driver or leader ; because the rider (as
has been already explained) is accounted
tho actual perpetrator of the homicide, nnd
the driver or leader tho producer of the
intermediate cause ; and the accident must
be referred to the actual perpetrator, rather
than to the producer of the cause.— This is
approved .
Case of two riders driving against and
killing each other.— IF two men be riding on
two different animals, and rush with violence
against each other, so that they both die, the
fine for each is due from the Akilas of the
other. Shafei and Ziffer maintain that in
this case the Akilas of each party owo a
half fine only, on account of the other.* caeh
having died as much in consequence of his
own act as of that of tho other, whence one
half of tho homicide, on each part, is of no
account.— The argument of our doctors is,
that the death of each party must bo referred
solely to tho act of the other, and not in any
degree to his own act, for his act (namely,
passing along the highway) is purely of 'a
neutral nature, and an act of such a nature
does not admit of tho death bring reforrod
to it so as to occasion responsibility. Tt may
indeed be objected, that upon this ground
the whole of the blood is of no account, and
of course that nothing whatever is duo from
tho Akilas on either side;— for as tho act of
both (namely, passing along tho highway (is
of a neutral nature, it cannot bo mado tho
occasion of responsibility. In reply, how-
ever, to this it is to be observed, that although
tho act of each party, respectively, be of a
neutral nature, still it is restricted to tho
condition of safety ; and a neutral act, re-
stricted to the condition of safety, notwith-
standing that it bo not an occasion of respon-
sibility with respect to the party himself,
is nevertheless so with respect to the other
party. It is to be observed however, that
a complete fine for each rider is due only
* The fines hero (as in all other cases) go
to the heirs of each party respectively.
whore they have happened to rush against
eao^i other (as above) by misadventure ; for
where they have done so wilfully, a half fine
only js due on account of each. All that is
here advanced proceeds on the supposition
of tho parties being freemen ; for if they be^
both slaves, tho blood of each is of no ac-
count : * — it is not of any account in a case
of misadventure; because the offence of a
slave effects only his own person, in this way,
that his master makes his person over to the
avenger of offence, or days him an atone
ment in lion thereof; but in tho present
instanc tho persons of both slaves are de-
stroyed, in such a manner that tho masters
have no concern with it ; nor have they left
any thing in lieu thereof; and hence the
blood of each must needs be of no account :
— and so likewise in a wilful case ; because
each of them has perished at the time of hia
offence, without leaving any thing in lieu of
his person, and in such a manner that the
masters have no concern in it, — whence the
blood of each must needs bo of no aecoun in
this instance also. If one of the parties be
a slave, and the other a freeman, then, in a
case of misadventure, the freeman's Akilas
are responsible for tho value of the slave,
which must bo paid to tho freeman's heirs,
whoso right is extinguished with respect to
any thing beyond such value (as if, for in-
stance, the value of the slave were one thou-
sand dirms ; in which case the freeman's
heirs would be entitled to take, from his
Akilas, one thousand dirras, the remaining
nine thousand of the freeman's fine being
remitted) ;-— because, in conformity with the
tenets of Haneefti and Mohammed, the value
of the slave is due from the freeman's Akilas
as tho compensation for his [the slave's] per-
son, for which the Akilas are responsible;—
and of thin tho froeman's heirs are entitled
to possess themselves, because it is (in effect)
un oquivalent for tho slave ;— but their right
to any thing beyond the value of the slave
drops, as the slave has loft nothing behind
him to answer such excess. If, on the con-
trary, tho parties being a slave and a free-
man, rush against each" other wilfully, the
freeman's Akilas are accountable only for
half the value of the slave (a wilful caso
only inducing half of the responsibility),
which must bo paid to tho freeman's heirs ;
for as, in this instance, a moiety of the fine
for tho freeman was due from the slave, and
he left nothing except the half of his value
(as above), they arc therefore entitled to
possess themselves of tho same, and the re-
mainder of tho half fine, beyond half the
value of the slave, is remitted.
The driver of an animal is responsible for
any accident occasioned by its saddle, die.,
* Literally, " goes for nothing."— The
translator adopts the phrase hero used in
preference, as beings omcwhat more elegant,
and expressing tho sense of the author with
equal correctness.
FINES.
[VOL. IV
falling off. — IF a person bo driving an animal
along, and the animal' H saddle or load, or any
thing else which may bo upon it, fall off, and
kill a man, the driver is responsible, as having
been guilty of a transgression, in neglecting
to secure the load, or so forth, properly upon
''the animal, for if it had been sufficiently
secured, it could not have fallen off.
Responsibility in the case of a string of
camels.— THE person who leads a string of
camels is responsible for any thing which
they may tread down. If, therefore, the
camels tread down a man, the fine for him
is due from the leader's Akilas, or, if they
tread down property, he is to make compen-
sation for the same ; because it was his busi-
ness to look to the camels, in the same man-
ner as a driver ; and as, where ho neglects
no to do, he is guilty of transgression, and
transgression occasions responsibility, lie is
responsible accordingly : — but the respon-
sibility for the person rests with this Akilaw,
and that for the property with himself, us
has been already explained. If there be a
driver to the string, as well as a loader, tho
responsibility rests equally with both ; be.
cause, as the leader of one camel is the leader
of the whole, so the driver of one is the driver
of the whole, the halter of each being fastened
to the one immediately before him. This
rule, however, obtains only where the driver
is at the end of the whole string ; for if ho
be in the middle, and there lay hold of the
halter of one of the camels, ho alone is re-
sponsible with respect to such damage as
May be occasioned by the camels which come
after him ; because the leader at tho head of
the whole cannot be said to lead those, on
account of the string being thus interrupted;
— but both are equally responsible for any
damage occasioned by the camels before him,
since he drives those at the same time that
he leads the others.
IF a person fasten a camel to a string of
camels, with the leader's knowledge, and
the camel so fastened tread down a man, the
fine for him is due from the leader Akilas
because it was in his power to have looked
after and watched hi« camels, so as to pre-
vent an additional one being joined to the
string ; and in neglecting so to do he was
guilty of a transgression ; which occasions
responsibility. Now the homicide, in this
instance, is homicide by an intermediate
cause ; and the fine for it therefore falls upon
the Akilas, in the same manner as in a case
of homicide by misadventure. But the
leader's Akilas are entitled afterwards to
reimburse themselves by taking the amount
of the fine from the Akilas of the person who
fastened the additional camel to the string ;
because it was by his act that they became
subjected to the payment of it ; and the only
reason why the responsibility did not fall
upon them at the first is, that the act of fas-
tening the additional camel was a sort of
Creation of a cause, whereas the leading of
the string is, in the eye of the law, equiva-
lent to the actual commission of the homi-
cide, the destruction having been occasioned
by the leading of the string, not by fasten-
ing the additional camel ; — -and as the actual
perpetration of the homicide is a thing of a
more forcible nature than the mere creation
of the cause of it, tho responsibility conse-
quently first falls upon tho Akilas of the
loader. Laywers remark that what is here
advanced (of the leader's Akilas having
recourse to the Akilas of the fastener) applies
only to a case where tho additional camel
was fastened to the string at a time when it
was moving forwards ; for as in this case,
the fastener does, as it were, direct his camel
to be led, ho therefore impliedly assumes the
responsibility for such damages as it may
occasion :— but where tho additional camel
was fastened to the string at a time when it
stood still, and the leader afterwards leads it
on, and a man is trodden down by this
additional camel, the responsibility rests
with tho loader's Akilas, who are not entitled,
in this case, to reimburse themselves from
fcho Akilas of tho fastener, because here tho
leader appears to have led on the camel of
another without that, other's concurrence, ns
ho has not signified his consent either ex-
pressly or by implication.
*4 person is responsible for the da ma ye
occasioned by him tiny his do<j at anything.—
IP a person let slip* his dog, and drive him
(that is, run after him), and tho dog, with-
out stopping, destroy any thing, the respon-
sibility for it rests with tho person who Jet
him slip, the act of tho dog being attributed
to him because of his driving him ; — whereas,
if a person cast off his hawk, and drive her
(as above) and she, without stopping, destroy
any thing, she person who east her off is no't
responsible. — -(The reason of this distinction
between a clog and a hawk i«, that a quadru-
ped is capable of being set on or driven,
whereas a bird is not so, — -whence a regard
is paid to the driving of tho one, but not of
the other).
But not unless he drire, or encourage, the
dog.—Iv, on tho contrary, a person let slip
his dog without driving him (that is, with
out running after him), and he destroy any
thing without stopping, the person who let
him slip is not responsible ; because, as the
dog, in this instance, acts from his own op-
tion, his act cannot be attributed to the per
son who let him slip. — -It is related as an
opinion of Aboo Yoosaf that, in all those
cases, tho person who fast off the hawk or
let slip the dog is to bo held responsible, out
of a regard to the preservation of property.
Mohammed also observes, in the Mabsoot
that where a person lets slip or casts off any
animal upon the highway, and the animal,
without stopping, kills a man, the responsi-
bility for the samo rests upon the person who
cast it off, or let it slip, whether he have
driven it, or otherwise, the motion of the
* Literally,
. 624.)
give head to. (See Hunting,
BOOK I.— CHAP. III.]
FINES
660
animal being referred to the person who
let him slip, so long as it continues to
move on in a straight line :— -but that
upon the animal turning off to the right
or left, the effect of letting it slip termi-
nates,— in. other words, the person is no
longer responsible in case of any damage :•—
and the same rule also holds where the ani-
mal stops, and then moves on of itself ; for
if, afterwards, anything be destroyed, there
is no responsibility.
Nor where he has let him slip at game.—
IF a person let slip his dog at game, and the
dog destroy any thing else, without stopping,
yet the person who let him slip is not respon-
sible, provided he did not drive (that is, run
after) him ; for as hunting is a thing un-
limitedly lawful, and is not restricted to the
condition of safety (it not being an exertion
which can effect any other than tho hunter
himself), transgression (which is tho occasion
of responsibility) cannot bo established in
this instance. If, on the contrary, a person
let slip his dog on the highway, and the dog
destroy any thing without stopping, comperi
sation must bo made by the person who let
him .slip ; because, although the occupancy
of the highway be a matter of a neutral
nature, still it is restricted to the condition
of safety, as being an exertion affecting tho
community; and the letting slip the dog,
being an endangering of tho safety of the
highway, is therefore a transgression, and
consequently induces responsibility.
A man, casting off his animal on the high-
way, is responsible for any depradation it
may commit. — [F a person cast off or set
loose an animal on the highway, and the
animal move straight on, and then, turning
to the right or left, tread down corn, or so
forth, tho person who cast it loose is respon-
sible ; but not if there be more roads than
one. If, on the contrary, an animal break
loose, and the , moving on of its own accord,
kill a man, or tread down property, either
by night or day, the owner is not respon-
sible ; because the Prophet has so ordained :
and also, because the fact of the animal can-
not, in this case, be attributed to the owner-
since he neither cast it off nor drove it.
For the eye of a goat an, adequate compen-
sation is due ; and for the, eye of a labouring
animal a fourth of the value. — -!F a person
put out one of the eyes of a goat, he must
compensate (not for any determinate part of
the whole value, but merely) for the defect
thereby occasioned ; because, as the only use
of a goat is its milk or its flesh, not its labour
nothing more can be required than merely
the diminution occasioned in its value. For
the eye, on the contrary, of an ox, a camel,
a dromedary, an ass, or a horse, of whatever,
description, a compensation mus tbe made of
one fourth of the value ; because the Pro-
phet has said, " Kor the eye of every animal
except a goat yet must pay a fourth of the
value of tho animal ;" — and also because, as
the work of the animal cannot be performed
but by means of four eyes (two of the animal,
and two of his dirivor), the animal may
therefore be said to have four eyes, — -whence
a fourth of his value is due for tho loss of
one eye.
Cases of damage occasioned by an animal,
having a rider on its back. — IF a person be
riding upon his beast on the highway, aiM
another person strike or goad the beast, with-
out the consent of the rider, so as to cause it
to kill a man by kicking, or treading him
down, or running over him, the responsibility
rests upon tho person who so struck or goaded
it, not upon the rider ; because the former
was the instigator of the animal's act, which
must therefore be referred to him ; and also,
because this person is the producer of the
cause of tho accident (for an animal naturally
kicks upon being struck or goaded), and, as
such, is guilty of a transgression, having
goaded the beast without the rider's consent ;
and as the rider has not in any respect trans-
gressed, he [the goader] is therefore soley
responsible. — (If, however, the rider, at tho
time of the other person striking or goading
the boast, had stopped it in the highway, tho
responsibility rests upon him and the goader
in equal shares, as in this ease ho also has
transgressed, in having stopped the animal
upon tho road.) — If, on the contrary, tho
beast strike out at tho person \vho goaded
or struck him, as above, and ho die of the
kick, his blood is of no account, as he may
be said to have slain himself. If, on the
other hand, the beast throw hi* rider, and
kill him, the fine for him is due from the
Akilas of the goader or striker, he having
transgressed in producing the cause of tho
accident.
IF a person be riding or stopping upon his
beast on his own land, and another goad or
strike tho beast without the rider's consent,
and tho beast fly out and tread down a man,
the responsibility rests upon the person who
so goaded or struck it, and not upon tho
rider, for the reasons before explained. — If,
on the other hand, a person be riding upon
his beast on tho highway, or stopping upon
it on his own land, and another goad or
strike it by his desire, and it fly out and
tread down a man, neither the rider nor the
other are in any degree responsible :-— tho
latter is not so ; because his act of striking
or goading the animal is in such a case tan-
tamount to that of the rider hyrnself; — -nor
is tho former (the rider) so, as he has here
authorized an act to which ho is perfectly
competent, the goading of an animal being
equivalent to driving it. But if the rider
be moving along tho road upon his beast,
and another then strike or goad it by his
desire, and it tread down a man, both par-
ties are responsible in an equal degree, pro-
vided tho man wa<< trodden down without
tho beast making any stop, because, in this
ease, its motion is referred to both alike.*
* A frivolous discussion, on this point, of
considerable length is omitted by the trans*
lator.
#70
WILLS.
[VoL. IV
Or being led in hand.—Iv a man bo lead-
ing an animal, and another strike it, and it
break away from the leader, and commit
any damage without stopping, the person
who struck it is responsible (and so likewise
where the animal was driven by any person,
instead of being led) ; because as the break-
ing away of the animal was owing to the act
of the striker, any accident that may ensue
is referred to him.
A person wantonly striking an animal, so
as to occasion mischief, is responsible. — -Ir
the striker, in tho examples hero recited, be
a slave, ho is responsible in his person for
any damage which may ensue ; — or, if ho be
an infant, the responsibility (for property
destroyed, or for any personal injury short
of a Mawziha wound) lies against his estate
because slaves and infants are liable to bo
prosecuted for their acts.
And so likewise, a person who scls any-
thing in the highway, which renders the
animal mischievous. ,— IF a beast be struck
by any thing which a person may have set in
tho highway-- and fly out, and kill a man,
the responsibility rests witli the person who
placed the thing there ; for aa ho transgressed
in so doing, the striking is therefore referred
to him, the cause being in effect the same
if ho had himself struck the animal,
CHAPTER IV.
OF OFFENCES COMMITTED BY OR UPON
SLAVES.
[This subject has been omitlrd in consequence
of the abolition of slarcry.]
BOOK LT.
OF MAWAKIL, Oil TUTE LEVYING OF VINES
Definition of terms- MAWAHH* is tho
plural of Makota, signifying a Doyit, or fine
of blood ; and Akilas arc those who pay the
ftne, which is termed Akkil and Mawakil,
because it restrains men from shedding
blood,— Akkil (among a variety of other
senses) meaning restraint.
(This is also omitted, as it is comprised in the
Penal Codr, Ac.)
BOOK LIE.
09 WASAYA, OR WILLS.
Definition of the terms used in wills.—
WASAYAIS the plural of Waseoat.— Wasoeat
means an endowment with tho property of
any thing after death,— as if one person
should say to another, " give this article of
miile, after my death , to a particular per-
son."— »The thing so given is termed tho
Moose be hee, or legacy ;— the person who
wills that it be given is denominated the
Mawsec, or testator; the person in whose
favour the will is made is called the Moosee
le hoo, or legatee ; — and the person appointed
to carry the will into execution is called the
Wasee, or executor.
Chap. I.— Of Wills that are legal, and
Wills that are laudable ; and of tho
Retractation of Wills.
Chap. II.— Of the Bequest of a Third of
tho Estate.
Chap. III. — Of Emancipation upon a
Deathbed ; and of Wills relative to
Emancipation.
Chap. IV.— Of Wills in favour of Kins-
men, and other Connections.
Chap. V.— Of Usufructuary Wills.
Chap. VI.— Of Wills made by Zimmees.
Chap. VII.— Of Axocutors, and their
Powers.
(-hap. VLIf. — Of Evidence with respect
to Wills.
CHAPTER I.
OP WILLS THAT ARE LEOAL, ANH WILLS
THAT AUK LATTDABLE ; AND OF THE RE-
TRACTATION OF WILLS.
Wills are lawful and valid.— Wills arc
lawful, on a favourable construction. Ano-
logy would suggest that they are unlawful ;
because a bequest signifies an endowment
with a thing in a way which occasions such
endowment to be referred to a time when the
property has become void in the proprietor
[the testator] ;— and as an endowment with
reference to a future period (as if a person
were to say to another, " I constitute you
proprietor of this article on tho morrow"),
is unlawful, supposing**, even, that the donor's
property in tho article still continues to exist
at that time, it follows that the suspension of
the deed to a period when the property is
null and void (as at tho decease of the party),
is unlawful, a fortiori. Tho reason*, how-
ever, for a more favourable construction, in
this particular, aro twofold. — • FIRST, there,
in an indispensable necessity that man should
have tho power of making bequests ; for
MAtf from tho delusion of his hopes, is im-
provident, and deficient in practice ; but
when sickness invades him he becomes
alarmed, and afraid of death. At that
period, therefore, ho stands in need of com-
pensating for MH deficiencies by moans of his
property;— and this in such a manner, that
if he .should die of that illness, his objects
(namely, compensation for his deficiencies,
and merit in a future state) may be obtained,
—or, on the other hand, if he should recover,
that he may apply the said property to his
wants;— and as these objects are attainable
by giving a legal validity to wills, they aro
therefore ordained to be lawful*— SECONDLY,
* In this place are stated an objection and
reply, which the translator has omitted in
BOOK LIL— CHAP. I.]
WILLS.
671
wills are declared to be lawful in the KORAN
nnd the traditions ; and all our doctors, more-
over, have concurred in this opinion.
To the extent of a third of the testator's
property. — IF a person make a will in favour
of a stranger, to the amount of a third of his
property, it is valid, although the heirs of
the testator should not bo consenting thereto ;
for it is so recorded in the traditions.
Bat not to any farther extent.— A BEQUEST
to any amount exceeding the third of the
testator's property is not valid. In proof of
this the following tradition is quoted, as
delivered by Abce Vekass,. " In the year of
the conquest of Mecca, being taken so ex-
tromely ill that my life was despaired of, the
Prophet of GOD came to pay mo a visit of
consolation. I told him, that, by the blessing
of God having a great estate, but no heirs
except one daughter, I wished to know it 1
might dispose of it ALL by WILL." Ho replied,
'No ! ' and when I severally interrogated him
'if I might leave TWO THIRDS, or ONE HALF ;
he also replied in the negative ; -but when I
asked 'if I might leave a THIRD', ho answered,
'Yes, you may leave a THIRD of your pro-
perty by will ; but a third part, to be dis-
posed of by will, is a groat portion ; and it
is bettor you should leave your heirs rich,
than in a state of poverty, which might
oblige them to beg of others.' "-Besides
the right of the testator's heirs ^.conneoted
with his property; for when ho is in his last
illness he has no further use for it ; ana as
this is the cause of the title to it becoming
null and void in him, and vesting m the
heirs, their right therefore, at that period
becomes connected with it accordingly. This
right, however, is not recognized by the LAW,
with respect to a stranger, to the extent of
ono third of the estate, in order that the
testator may bo enabled, by bequeathing a
third of his property out of his family, , to
atone for his past deficiencies, as before men-
tioned. With respect to the heirs themselves
on the contrary, this connexion of right is,
recognized to the extent of the whole of the
testator's property (whence it is that if a
person should dispose of a third of his pro-
perty to a part of the heirs, it would not be
valid) ; for if no regard were paid to the
connexion of their right with the whole of
the property, with respect to themselves, so
as to legalize the bequeathing a third of it
to a part of them, in that case the object of
a will (namely, a compensation for defi-
ciencies) might not be attended to, as it is
the text, in order to avoid an interrup
tion of the subject.- Viz.
"OBJECTION.- If the right of property in
the proprietor become extinct at his decease
how can his act of endowment be then valid ?
"REPLY.- His right of property is ac
counted to endure at that time from necessity
— in the same manner as holds with reaped
to executing the funeral rites, or discharging
the debts of the dead,"
possible that the testator, instead of includ-
ng the whole of the heirs, might leave the
,ljird only to a select part of them ; and this
would bo an injury to the others, and would
consequently induce a breach of the tics of
dndrcd, which is unlawful.
Unless by the consent of the heirs.— It is
to be observed, however, that although a
will, bequeathing more than a third of the
testator's property, be not lawful, yet if the
heirs, being arrived at tho age of maturity,
should give their consent to it, after the
death of tho testator, it then becomes valid;
for the objection to its validity is founded
merely on a regard to their right, and there-
fore does not operate any longer, after they
themselves agree to forego such right. Their
consent, indeed, during tho lifetime of the
testator, is not regarded ; for as this is an
assent previous to tho establish mont of their
right, they are therefore at liberty to annul
it upon the death of the testator. It is
otherwise where the consent is given after
that event ; for as this is an assent sub-
sequent to the establishment of their right
they are not afterwards at liberty to annul
it.
A bequest to an heir is not valid unless con-
firmed by the other heirs.— WHERE a person
makes a will in favour of part of his heirs,
the same rulo holds as in tho case of bequeath-
ing more than a third to a stranger ;— in
other words, tho deed is not valid, unless
the other heirs give their consent to the dis-
position after the death of tho testator; and
their consent previous to his death will
have no effect. It is to be observed that,
in every instance where a will is rendered
valid by the consent of the heirs, the lega-
tee derives his property from the testator,
not from the heirs. This is the opinion of
our doctors. Shafei maintains that he derives
his property from the heirs. The opinion of
our doctors is approved ; for the will of the
testator is the occasion of the property, the
consent of tho heirs being only the removal
of a bar ; and as tho law has regard to the
cause, not to the removal of a bar, tho pro-
perty is therefore derived from the testator,
not from the heirs (whence it is that seisin
IB not requisite ;* for if the property were
derived from the heirs, seisin would bo requi-
site ; because the transfer of property from
a living proprietor, without receiving any
thing in return, is in effect a gift, to the
establishment of which the seisin of the
donee is a necessary condition); in the same
manner as where a pawner sells the pawn
in which case the ratification of tho deed of
sale rests entirely on the pawnee, and if he
give his consent, tho sale is valid, and the
purchaser derives his property in the article
sold from the pawner, not from the pawnee.
A bequest to a person from whom the testa.
* Meaning, "the testator's taking posses-
sion of the bequest is not requisite for thl
establishment of his right in it,"
672
WILLo.
[VoL. IV
tor had received a mortal wound is not valid,
—IF a person make a bequest in favour of
another from whom ho has received n mortal
wound, it is not valid ; whether the murderer
be one of his heirs, or a stranger, or whether
he may have wounded hi,m wilfully or by
misadventure, provided he be the actual
perpetrator of the deed ; because it is re-
corded in tho traditions, that "there is no
legacy for a murderer ;" and also, because,
as the person who gave the wound has
hastened the death of the testator, he is, by
way of punishment, excluded from the
benefit of the will, in the same manner as a
person under similar circumstances is ex-
cluded from inheritance.
And if a legatee slay Ins testator, the be-
quest in hiu favour is void. — So likewise,
where a man, having made a bequest in
favour of a particular person, is afterwards
killed by that person, such bequest is in-
valid.— If, however, in these cases, the heirs
should give their consent, tho bequest then
becomes valid, according to Hancefa and
Mohammed. — Aboo Yoosaf is of a contrary
opinion ; because the offence of the mur-
derer, which is tho cause of the invalidity of
the will, still exists.— The arguments of
Haneefa and Mohammed upon this point are
twofold. — FIRST, the defect in the validity
of the will ; with respect to tho murderer, is
on account of the right of the heirs ; because
the advantage of such defect results to
them, as in the case of exclusion from in-
heritance.—SECONDLY, the defect in the
validity of the bequest, as made in favour of
tho murderer, is owing to the heirs with-
holding their consent, in the same manner
as in the case of a will in favour of part of
the heirs ; and consequently, as the consent
of the remaining heirs, in that instance,
establishes tho validity of the will, it follow
that the consent of the heirs at large must
have the same effect in the case in ques-
tion.
A bequest to a part of if if lieirs is not
valid. — IF a man make a bequest in favour
of a part of his heirs, it is not valid ; be-
cause of a traditional saying of the Prophet,
"GOD has allotted to every heir his particu-
lar right ;" and also, because a, will in favour
of a part of the heirs is an injury to tho rest ;
and therefore, if it were deemed legal, would
induce a breach of the ties of kindred. — Be-
sides, it is said, in tho traditions, "a bequest
to particular heirs is unjust." — It is to be
observed that in judging whether the legatee
be an heir, or otherwise, regard is paid to
the time of the testator's death, not to the
period of making the will ; because the
efficacy of the will is established after the
death of the testator. — (The gift of a dying
person* is in this respect of the same nature
with a legacy, both being the same in effect
* Arab, Mareez. Literally, sick, — but al-
ways (in the language of the LAW) meaning,
%ck of a mortal illness."
and is therefore executed to the amount of
a third of the property.) — If, on the con-
trary, a dying person make an aeknowledg.
ment in favour of a part of his heirs, regrd
is paid to the time of such acknowledgment ;
because the acknowledgment of a dying per-
son is an immediate and complete act of his
own, and has not any reference to a future
period ;— and such being tho case, it follows
that it is not valid in favour of any who
were actually heirs at the time of making
it, — and that it is valid with respect to such
as were not heirs at that time ; although
they should become so afterwards ; — as
where, for instance, a person makes an ac-
knowledgment in favour of his child, who is
a slave, and the child recovers his freedom
before tho death of tho father; in which
case the acknowledgment so made is valid,
notwithstanding the child, by the recovery
of his freedom, became one of his father's
heirs ; for as, at the time of the acknow-
ledgment, ho was not an heir,* any acknow-
ledgment made in his favour was virtually
made in favour of his master, who was a
stranger ;— and the validity of the acknow
ledgment being once established, it does not
afterwards admit of being annulled from tho
circumstance of the child's becoming an
heair. — It is to be observed, however, that
although a bequest in favour of a part of the
heirs be not valid, yet it in rendered so by
their consent, as was already mentioned. —
If, moreover, a part should give their con-
sent, and part withhold it, the bequest then
becomes valid in proportion to the amount of
tho shares of those who consent, and invalid
in proportion to the amount of the shares of
the othrs.
Bequests are valid between Mussulmans
and Zimmees. — THE bequest of a Mussul.
man in favour of a Zimmee or of a Zimmee
in favour of a Mussulman, is valid, the
former, because COD has said, in the KORAN,
"YE ARK NOT PROHIBITED, O BELIEVERS,
FROM ACTS OF BENEVOLENCE TOWARDS THOSE
WHO SUBJECT THEMSELVES TO YOU, AND
REFRAIN FROM BATTLES AND CONTENTIONS ;"
--and the latter, because Zimmees, in virtue
of their compact with the Mussulmans, are
considered in tho same light with them in
all temporal concerns ; and as, on this prin-
ciple, an intercourse of good offices towards
each other is held lawful during life, they
are therefore in the same manner permitted
to extend beyond the grave. — -Tt is related
in the Jama Sagheer that a will in favour of
an hostile infidel ia not valid, as GOD has
prohibited, in the KORAN, the exercise of
benevolence towards them.
The acceptance or rejection of them i$ not
determined until after the death of the testa-
tor.— THE acceptance or rejection of a bequest
is not established until after the death of the
testator ; for as the bequest does not take
* A slave cannot possess any right of in-
heritance,
Boo LII.— CHAP, t.]
WILLS.
effect before that event, those cannot bo pre-
viously regarded. — -Hence the acceptance or
rejection during the life of the testator has
no effect, in the same manner as an accept-
ance declared before the existence of a con-
tract.— If, therefore, a legatee accept a
be quest after the death of the testator, it is
valid, notwithstanding ho may have rejected
it during MR lifetime.
It is laudable to avoid making them where
the heirs are poor. — -IT is preferable and
most advisable not be leave legacies, if the
heirs be poor, and their particular portions
not such as to enrich them ; because this
manifests benevolence to the heirs, who have
a superior claim to it from the relation in
which they stand, GOD having declared, in
the KORAN, " THE EXERTIONS OF GENE-
ROSITY TOWARDS RELATIONS IS MORE LAUD-
ABLE THAN TOWARDS STRANGERS."— Bo-
sides, in this an observance of twoo claims is
maintained, namely, that of poverty and
consanguinity. If, on the contrary, the
heirs bo rich or the particular portions
assigned to them bo such as to enrich them,
it is most advisable to leave something short
of a third of tho estate in legacies, as a
legacy to a si ranger is an act of charity,
whereas the bestowal of tho wholo upon tho
heirs is a gift; and the former is more laud-
able than tho latter, being calculated to
gain the favour nnd good will of GOD.
So mo have said that in such case the pro-
prietor is under no restraint, but is perfectly
at liberty to make a will in favour of
strangers,' or to suffer the wholo to pass to
tho heirs, as c.vch has its particular merit,
tho first being an act of generosity, and tho
second an obedicnc to tho dictates of
natural affection.
The legatee becomes proprietor of the
Iwjacy by 'his acceptance of it. — THE pro-
perty of a legatee in a legacy is established
by bin acceptance of it. Ziffor is of opinion
that a legacy is like an inheritance ; be-
causo tho legatee acquired tho property by
transition from, and succession to tho tes-
tator, in tho same manor as an heir
acquires it by succession to and descent from
tho last possessor ; and therefore his accept-
ance is not necessary towards tho establish-
ment of tho property, in the same manner
as holds in the case of inheritance.— Our
doctors, on the contrary, argue that a legacy
establishes tho property in the legatee do
novo, and does not vest by succession and
descent as in the case of inheritance
(whence it is that a legatee cannot reject
tho legacy on account of any defect; in
other words, if a person, having purchased
a slave, for example, should bequeath him
to another, and the legatee, after the death
of tho testator, discover tho slave to have
some fault or defect, it would no, on this
account, be in his power to return him to
the seller, as an heir, in a similar case,
would bo entitled to do ; --and likewise, that
nothing can bo returned to a legatee on
account of a defect ; in other words, if a
person should bequeath his whole estate by
will, and afterwards sell something belong-
ing to it, and the buyer discover a defect in
tho'1 same, still ho would not have tho power
of returning it to the legatee, whereas he
might to an heir) ; — -and such being the case,
it rests, therefore, entirely on his accept-
ance, as no person can be mado proprietor oi
any tiling against his will. Inheritance,
on tho contrary, is a succession (whence it ia
that the rules above mentioned have effect
in it) ; and an heir is therefore, as it were,
forcibly put in possession of his inheritance,
by tho especial ordinance of the LAW, to
validity of it not being suspended on his
acceptance or consent.
Which may be either expressed or im-
plied.— -IT is to be observed that acceptance
in cases of bequest, is of two kinds.-—
I. Express, which needs not to be ex-
plained.— -II. Implied, which is where tho
legatee dies without having either declared
his acceptance or refusal ; for this also is in
accptanco in effect ; because tho bequest as
rendered complete on tho part of the testator
by his death (in other words, it cannot bo
rescinded after that event) ; and as it was
suspedcd in its effect purely in deference
to his right of rejection, it of course falls
into his property upon his demise; — in tho
sj*mo manner as hold in a case of sale with
a reserve of option to the purchaser ; in
which instance, if tho purchaser die without
formally signifying his assent to the sale, it
is then regarded as complete, and the article
sold is considered as part of his estate.
Bequest by an insolvent person is void.-~
[F a person deeply involved in debt bequeath
any legacies, such bequest is unlawful and
of no effect; because debts have a preference
to bequests, as tho discharge of debts is an
absolute duty, whereas bequests are gratuit-
ous and voluntary ; and that which is most
indispensable must bo first considered. If,
however, tho creditors of tho deceased relin-
quish their claims, the bequest is then valid,
the obstacle to it being removed, and tho
legatee being supposed ^° stand in need of
his legacy.
And so likewise by an infant— "BEQUEST
by an infant is not valid. Shafei maintains
that it is valid, provided it bo made to a dia-
crcot and advisable purpose ; because Omar
confirmed the will of a Yaffai (that is, a
boy who has nearly reached the ago of matu-
rity) ; nnd also, because in the execution of
it a degree of advantage results to tho in-
fant, inasmuch as he acquires the merit of
the deed,— whereas in the annulment of
it ho is deprived of all advantage. The
arguments of our doctors, in support of their
opinion upont his point, are two fold. — FIRST,
a will is a voluntary act, concerning which
an infant has not a capacity of forming a
proper judgment. SKCONJH.Y, tho declara-
tion of an infnt is not of a binding nature;
but if tho validity of a bequest by such
wore admitted, tint clfoct would follow of
course. With regard to tho tradition of
WILLS.
[VOL. IV
Omar, the term Yaffai, there used, must ho
understood to mean a person just arrived at
the age of maturity, or, "the will of the
Yaffai" relates merely to the celebration
of his obsequies, which is lawful in the
opinion of our doctors. Besides, the annul-
ment of the will is advantageous to the
infant, since in allowing his property to pass
to the heirs the rights of natural affection
are maintained, .as beibr mentioned. With
respect to the assertion of fcJhafei, that "in
the execution of the will an advantage re-
sults to the infant," it may ho replied that
the point to bo attended to, in case of
advantage or loss, i.s the immediate ten-
dency of any act or deed, and not what may
eventually result from it ; in other words, if
the deed itself, in its immediate tendency,
produce advantage, the execution of it on
account of the infant is preferable ; but in
the case here considered the deed (that is,
the bequest), in its immediate tendency,
leads to a loss of property, although even-
tually the infant have an advantage, the
bequest having been made with a, view to
obtain merit in the eye of (»on>; and since
the beqi.est of the infant, in its immediate
tendency, occasions a lew*1, it is not valid;-
in the same manner as holds in case of a
divorce ; in other words, if an infant divorco
his wife, or his guardian do so on his behalf,
it is not binding, notwithstanding a divorco
may on many occasions be attended with
advantage,- as where an infant, having a
wife who is poor, wishes to divorco her, and
marry her sister, who is rich and handsome
— In short, bequest by an infant is invalid,
accordng to our doctors ; — and in the same
manner, if an infant shoud make a will,
and die after he had attained to maturity,
the will is not valid, as having been made
at a time when he was unqualified for such
an act ; and so likewise, if an infant should
say, " It is my will, whenever J reach the
age of maturity, that a third of my estate
be considered as a legacy in favour of a par-
ticular person," the will is not valid ; be-
cause an infant, being unqualified, is not
competent to make a will that shall bo
deemed valid immediately ; or that can bo
rendered so by being suspended to a future
period ; in the same manner as he is inca-
pable of divorce or emancipation. it is
otherwise with respect to a slave or a
Mokatib; for they possess a complete com-
petency, obstructed merely by the right of
their master ; and therefore all their acts
(such as divorce, bequest, or so forth) are
perfectly valid if referred to a period when
that bar no longer exists ; as where a slave
(for instance) says "I declare my wife to be
divorced whenever I am free."
Or a JMokatib.—EzQVJSfiT by a Mokatib is
not valid, notwithstanding he leave effects
sufficient to discharge his covenanted ran-
Horn ; because the property of a Mokatib is not
a fit subject of gratuitous acts. Some assert
that this in according to TTaneefa ; but that
the two disciples hold a ontrary opinion.
A bequest of (or in favour of) a foetus in
the womb is valid. — -A WILL, in favour of a
foetus in the womb, and a will bequeathing
a foetus, are both valid, provided the birth
happen in less than six months fro/m the
date of the will. The ground on which to
first case proceeds is, that a legacy is, in a
manner, a succession to property ; and as a
foetus is capable to succeed in the case of
inheritance, it is so likewise in the case of
a legacy, that being analogous to inherit-
ance. If, however, the legatee should re-
ject the legacy, it is rejected accordingly, as
a bequest bears also tho sense of a endow-
ment, which may be declined. It is different
with inheritance, as that is purely a succes-
sion, and is not annulled by the rejection of
the heir. — Clift, moreover, differs from be
quest, it not being (like bequest) admitted
in favour of a foetus; for gift is purely an
endowment ; and no person can endow a
foetus with any thing. The ground, on the
other hands, on which tho second case pro-
ceeds is, that the existence of tho foetus is
understood at the period of making tho will ;
and as tho legacy of things not yet in being
(such as the fruit a tree may hereafter
yield) is valid, it follows that a legacy of a
thing actually existing is valid a fortiori.
Afctnale slave may be bequeathed with the
exception of her proyetiy. — Iv a person be-
queath a female slave, and except tho off-
spring of her womb, both the bequest and
the exception arc valid. The bequest is
valid, because the words " female slave "
do not include the offspring. As, however,
in tho bequest of a female slave, her off-
spring is included depcndently, were tho
bequest is absolute, it follows that where a
slave is bequeathed with an exception of her
offspring, such bequest is valid. Tho excep-
tion also is valid ; because as it is permitted
to bequeath a foetus in the womb, it is also
allowable to except it from a legacy ; for it
is a rule that whatever is in itself capable of
being the subject of a deed may also bo
excepted from that deed ; and vice versa.
Besides, tho acceptance of the legatee is
suspended until tho death of the testator ;
and the annulment of the declaration, pre-
vious to tho acceptance is valid, as in a
case of sale for instance.
A bequest is rescinded by the express de-
claration of the testator ; or by any act on
his part implying his retractation. — UPON
the testator either expressly rescinding his
bequest (as if he were to say, *' I retract
what I had bequeathed"), or performing any
act which argues his having rescinded it,
retractation is established. It is established,
in the former instance, evidently ; and so
likewise in the latter ; for as acts are de-
monstrative of the inclination as much as
express words, they are consequently equi-
valent thereto.— It is to be observed, that if
tho testator perform, upon tho article he
had bequeathed, any act which, when per-
formed on the property of another, is the
cause of terminating the right of the pro-
BOOK LIT.— CHAP. I.]
WILLS.
675
prietor (such as the slaughter of a goat, or
the flaying, roasting, or boiling of it, the
fabrication of a vessel from a piece of cop-
per, the grinding wheat into flour, or the-
fabrication of a sword from iron), — .such act
is a retractation of the bequest. If, also, he
perform upon it any act creating an addi-
tion to the legacy, and this addition bo HO
connected, that the legacy cannot be sepa-
rately delivered (as where a person be-
queaths the flour of wheat, and afterwards
mixes it with oil, — or a piece of ground, and
afterwards erects a building on it,— or un-
dressed cotton, and afterwards dresses it, —
or a piece of cloth, and afterwards lines or
covers a gown with it), — such act is a re-
tractation of the bequest. It is otherwise
with respect to plastering the wall of a be-
queathed house, or undermining the foun-
action of it; for these fcts do not indicate a
retractation of the bequest, as they affect
the legacy in its dependencies only.
Or which ertingvishe* his properly in the
legacy. — EVERY act or deed which occasions
an extinction of the property of the testator
is a retractation from his bequest (as where
for instance, a testator sells the article he
had bequeathed, and afterwards purchases it,
— or gives it to some person, and afterwards
retracts the gift), — and consequently, the
legacy docs not go to the legatee after his
[the testator's] decease : — because a will can
hold good only with respect to the testator's
property ; and therefore, upon his property
being extinguished, the bequest becomes
null of course. (It is to be observed that
the washing of a bequeathed garment is not
a retractation from the bequest ; on the con-
trary, it is rather a confirmation of it, as it
is a custom to wash garments before they are
given to any person).
The testator's denying his bequest is not a
retractation of it.— IF a testator deny his
bequest, and the legatee produce witnesses
to prove it, there is in that case a difference
of opinion among our doctors; — for accord-
ing to Mohammed this is not a retractation ;
— whereas Aboo Yoosaf maintains that it is
so, because retractation signifies the testator
negativing his bequest at the present time ;
and as the denial is a negative applying
both to the present and to the past, it there-
fore amounts to a retractations a fortiori.
The argument of Mohammed is, that the
denial of a bequest signifies the putting a
negative upon it with respect to the past,
of which its being negatived with respect
to the present is a consequence ; and upon
the bequest being proved, by witnesses, to
exist at present, the oiu'al is of no effect,
Another argument is, that as a retractation
implies the former existence of a will, and
the present annihilation of it, and denial
(on the other hand) disavows both the former
and the present existence of it, there is
therefore an evident difference between a
retractation and a denial ; whence the latter
ought not to be considered in the light of the
former;— and accordingly, denial not being
a retractation, if a husband deny his
marriage, and the wife bring witnesses to
prove it, still a separation docs not take
place between them.
Nor his declaring it unlawful or usurious.
— IF a testator declare the will ho has made
in favour of a particular person to be unlaw-
ful or usurious, this is not a retractation,
because the specification of it under the
description of illegality or usury is a plain
proof that the subject of the description
(namely, the will) does actually exist. The
case would bo different if he should declare
the will to bo null ; for that is evidently a
retractn Ion ; because, as a thing which is
null is non-existent, the description of null
evinces that the thing so described no longer
exists. It is otherwise with the description
of unlawful ; for that indicates a continu-
ance of the existence, as illegality cannot
apply to a nonenity.
Or desiring the execution of it to be de-
ferred.— IF a testator should desire that the
execution of his will bo suspended for some
time after his death, this is not a retracta-
tion. If, on the contrary, he say "I depart
from my will" he is then held to have re-
tracted it.
A bequest to one person is annulled by a
subsequent bequest of the same article to an-
other. — IP a person say, "I will that a par-
ticular slave, which I formerly bequeathed
to Zeyd, be given as a legacy to Amroo," in
that case a retractation from the first will is
established, as the tenor of his speech evi-
dently shows that it was not his intention
they should both partake of the legacy. It
is otherwise where a person first leaves a
particular article to one man, and then
leaves the same thing to another ; — as if he
should say, "I will that this thing be given
to Zoyd," and afterwards make a bequest of
the same thing in favour of Amroo ; — for
in that ease retractation of the first will
does not take place ; the subject being
capable of division, and the separate sen-
tences bearing that construction.
Unless that other be not than alive. — IF a
person say, 'the slave which I formerly left
to Zeyd I now bequeath to Amroo," and at
that time Araroo bo not alive, the first will,
in favour of Zeyd, holds good for that was
annulled only on account of the legacy hav-
ing been completely devised to Amroo ; and
upon this no longer remaining in force, be-
cause of Amroo's death, the first will reverts.
— -If, on the contrary, Amroo be alive at the
time of the bequest in his favour, and after-
wards die before the testator, the legacy (the
slave) in that case passes to the heirs, both
bequests being void, — the first, because of
the retractation, — and the last, because of
the death of the legatee previous to that of
the testator.
676
WILLS.
[VOL. IV
CHAPTER II.
CONCERNING THE BEQUEST OP A TH1HD OF
THE ESTATK.
Case, of a person bequeathing two thirds of
his properly to two persons respectively. —
IP a person bequeath a third of his property
to one man, and a third to another, and the
heirs refuse their consent to the execution of
both bequests, one third is in that case
divided equally between the two legatees ;
for where the will exceeds a third of the
estate, and the heirs refuse their consent to
the execution of the whole, it is then re-
strictcd to one third, as has been already
explained ; and as, in the present instance,
the right of the both claim ants is equally good
and the third is capable of division, it is
therefore divided equally between them.
Or a third to one and a sixth to the other.
— IP a man bequeath a third of his property
to one person and a sixth to another, and the
heirs refuse to confirm <he whole, in that
rase one third of the property is to be
divided between the legatees in three equal
lots, two to tho legatee of the third, and one
to the legatee of the sixth ; because tho
bequest does not hold good for any thing
beyond one third; and as both the legatees
lay their claims on equally good ground, and
it' is impossible to discharge their demands
(namely, a third and a sixth) with ono third
only, that is therefore shared between them
in proportion to their respective claims, in
the same manner as is practised with ere-
ditors, in discharging the debts of a person
who dies insolvent. Here, moreover, the
right of one legatee is to a sixth, and that of
the other to a third : and as a third is twice
the amount of a sixth, the third is therefore
divided between the claimants in three
shares, two shares going to the one, and one
share to the other.
Cases of Mohahat wills. (* A WILL by
way of Mohabat, on a deathbed, is the same
in effect as a bequest of property, and is
therefore executed to any amount not ex-
reeding a third of the testaor's estate. (Mo-
habat literally signifies a gift. In the lan-
guage of the LAW it means a fight interwoven
in some compact or deed, as if a person should
sell part of his property to another at an in-
ferior value.)
IP a person, having two slaves, one esti-
mated at thirty dirms, and the other at sixty,
should on his deathbed will that tho slave
* Tho whole passage within the crochets
seems to be an interpolation of Molovees
employed in the composition of tho Persian
version of the HEDAYA, as tho translator has
consulted various Arabic copies, without find-
ing it in any of them. It may possibly have
been inserted in some copies of the work in
the manner of marginal illustrations, which
induced tho Molovees to give it a place in
the text.
worth thirty dirms be sold to Zeyd for ton
and that tho other worth sixty, be sold to
Omar for twenty,— in that case Zeyd obtains
a Mohabat of twenty dirms, and Omar a
Mohabat of forty dirms ; and this is what is
denominated a will by Mohabat. But if the
testator should not be possessed of any other
property than these two slaves, and the heirs
refuse to ratify the will, in that case the
Mohabat is executed only in the proportion
of a third. Now the whole of the property
is ninety dirms, that being the aggregate
value of the two slaves ; ono third of that
therefore (being thirty dirjn), is divided
into three shares, two of which are given
in Mohabat to Omar, and ono to Zeyd; that
is, the slave worth sixty dirms is sold to
Omar for forty, and the other, worth thirty,
to Zeyd, for twenty.
IF a person, having two slaves one valued
at thirty dirrns, and the other at sixty, should
on his deathbed emancipate both, such manu-
mission is in effect a bequest. If, therefore,
the person in question leave no other pro-
perty than these two slaves, and the heirs
refuse their consent to tho emancipation, it
takes effect in the proportion of one third ;
that is to say, each of the slaves is rendered
free in one third of his value, and must earn
the freedom of the remaining two thirds by
emancipatory labour.
And bequests of specific sums of money.—
IF a person bequeath a particular number of
dirms without specifying the relative pro-
portion they bear to his estate,— such as a
half, a third, a fourth, or tho like,— it is
valid, but is executed only to the extent of
a third of his whole property, unless tho
hairs bo willing to confirm the whole. Thus
if a person, having only ninety dirms, should
bequeath thirty to Zeyd, and sixty to Omar,
and the heirs refuse their assent to it, in that,
caso the sum of two legacies is reduced
to thirty dirms, of which Zeyd receives ten
and Omar twenty.)
Case of a person bequeathing the whole of
his estate to one, and then a third of it to
another.— IF a person first bequeath the
whole of his estate to one man, and then a
third of it to another,* and tho heirs refuse
their assent, in that caso ono third of his
estate is divided into four shares, of which
three are given to the legatee of the whole
and one to the legatee of the third. This
is according to tho two disciples. Haneefa
alleges that the third of the estate must be
divided equally between the two legatees ;
for in his opinion, when a legacy is extended
beyond a third, the excess is of no weight
in the determination. „ Tho argument of the
two disciples is, that the testator has two
objects in view ; for first, he designs that
* This supposes the testator, first, to say,
" I bequeath the whole of my property to
Zeyd*' (for instance), and again at some
future time, "I bequeath a third of my
property to Amroo,",
BOOK LIL— CHAP. I.]
WILLS.
677
each of the legatees shall receive the whole
of his legacy ; and secondly, that a supe-
riority of the one over the other shall be
maintained. Now the attainment of the
first of these objects is impossible, because
of the right of the heirs, and is, indeed, in
itself impracticable ; but as there is no bar
to the full accomplishment of the second
object, the superiority of the one over the
other is preserved, in the same manner as in
the cases of bequest by Mohabat, or emanci-
pation, or, of legacies of a specific number
of dirms. The argument of Haneefa is,
that a will is null and void in whatever
degree it may exceed a third of the estate,
where the heirs refuse their assent ; and
cannot on any sort of pretext bo executed in
that amount, as being repugnant to the ordi-
nance of the LAW in this particular. Since,
therefore, the will is rendered null in the
excess above a third, one object of the tes-
tator (namely, to establish a superiority) is
also rendered null, as being comprehended
in it : in the same manner as a Mohabat in
rendered null when interwoven in a contract
or sale which is afterwards invalidated ; as
where, for instance, a person sells, by Moha-
bat, a slave valued at thirty dirms for twenty,
and the sale afterwards becomes void in con.
sequence of the loss of the subject of it pre-
vious to the delivery, — in which case the
Mohabat also becomes void. It is otherwise
in the cases of bequest by Mohabat or eman-
cipation, or of legacies of a specific number
of dirms ; for there the validity does not
rest on the consent of the heirs; it being
eventually possible that the bequests may bo-
come valid notwithstanding the heirs should
rofu.se to ratify them, by the testator (for in-
stance), after making the bequest, increasing
his property to a degree that might render
the amount of the bequest no more than
equal to, or less than, one third of the whole.
Since, therefor, in these cases, the bequest
i* not in itself null, but rather stands within
the possibility of being valid, a regard must
consequently be paid, in such instances, to
the superiority of one of the parties. It is
otherwise in the case here considered ; for it
is in this instance impossible that the will
should bo valid, as has been already shown.
It is also otherwise where a person bequeaths
a particular yhive, valued at one thousand
dirmw, to /eyd, and another, valued at two
thousand dirms, to Bicker, and has himself
no other property than these slaves ; for
although, in this case, there be A possibility
that the testator may so increase his pro-
perty as to render the amount of the two
slaves equal to, or less than, a third of the
whole, yet Bicker would receive a proportion
according to the third, not according to the
amount of the legacy (viz. two thousand
dirms) ; because here the right of the lega-
tees is connected with the substance of the
slaves, on this ground, that if the slave
should be destroyed, the will would be
rendered void, notwithstanding the testator
might have acquired other property. Hence
the apprehension before stated is of no weight
in th is instance, as the right of the legatee
ir, here connected with the very article with
which the right of the heirs has a connexion.
In the case, on the contrary, of a legacy of a
specific number of dirms, if the property of
the testator be destroyed, and he afterwards
acquire more, the legacy would be valid, and
executed by means of the newly acquired
property ; whence it is plain that the right
of the legatee, in the case of a legacy of a
specific number of dirms, is not connected
with the substance, and consequently is no
annulled on account of its destruction.
The bequest of "a son's portion of inhe-
ritance" is void, but not the bequest of an
equivalent to it. — -IF a person bequeath to
another "his son's portion of inheritance."*
such bequest is null; whereas, if he bequeath
"an EQUIVALENT to his son's portion," such
bequest is valid; for the first is a bequest of
what is the property of another, whereas
the second is merely a bequest of something
similar ; and the semblance of a thing is
different from the thing itself, notwith-
standing its rate be determined thereby
Zillbr is of opinion that a bequest of the
former nature is likewise valid ; because at
tho time of making it the portion belonged
evidently to tho testator. I reply to this,
however, it is to be observed, that the legacy
does not take place until after tho death of
tho testator, when the property does not be-
long to him, and hence his bequest of his
son's portion is a bequest of property not
his own.
A bequest of "a portion" of the estate is
executed to the extent of the smallest portion
inheritable from it. — IF a person bequeath
"a portion of his estate," the legatee is in
that case entitled to the smallest portion
allotted to any of the heirs, — provided,
however, that such portion be not less than
a sixth, for then a complete sixth must be
given to him ; and if it should exceed a
sixth, in that case also a sixth is given to
him : for he is in no wise to get more than a
sixth. A case in which one of the inherit-
able portions is less than a sixth is where,
for instance, a person bequeaths to another
" a portion of his estate," and leaves heirs,
at his death, a son and a wife ; — -in which
case, although the. share of the wife bo only
an eighth, yet the legatee receives a sixth,
and the remainder is then divided between
the wife and son (the heirs) according to the
ordinances of the LAW. A case on the con-
trary, in which all the inheritable portions
exceed a sixth, is where, for instance, a
* Tn this, and several subsequent examples,
the effect depends entirely upon tho terms in
which tho bequest is conceived, and which
must therefore be particularly attended to,
— Thus, in the present instance, the testator
is suppocd to say, "1 bequeath to SUCH (AN
ONR iuy son's portion of inheritance :" atid
so of the rest.
678
WILLS.
[VOL. IV
person makes a bequest in the terms here
stated, and dies, leaving heirs a full brother
and wife ; in which case, although the
smallest portion be a fourth, yet the legatee
is only entitled to a sixth ; and that being
paid to him, the remainder is then divided
between the brother and wife, agreeably to
the ordinances of the LAW. This is accord,
ing to Haneefa. Aboo Yoosaf and Moham-
med are of opinion that the legatee is entitled
to the lowest share, whatever bo its amount,
provided it do not exceed a third ; but if it
exceed a third, an exact third must bo given
him, and riot more, unless the heirs be con-
senting thereto. The argument on which
they ground this opinion is, that the word
Sehm [portion], both in its literal and re-
ceived sense, means a portion allotted to an
heir; and as the smallest share is a matter
of certainty, it is therefore adopted as the
standard ; except where the smallest portion
of inheritance exceeds a third, in which case
the bequest is executed in the proportion of
a third, as a legacy exceeding a third ia not
valid, unless confirmed by the heirs. The
argument of Haneefa is ; that Sehm, accord-
ing to the interpretation of the LAW, moans
a sixth ; a legacy of a Sehm having been left
in the time of tho prophet, who ordained
that a sixth of the property of tho testator
should be given to the legatee. In its literal
sense, moreover, it bears the same meaning,
because Ayass, a man skilled in tho Arabic
language, who was Kazcc of Bagdad, declared
that Sehm literally signified a sixth. Since,
therefore, Sehm, both in the practice of the
LAW, and the literal signification, means a
sixth, tho legatees in cases of this kind is
always entitled to it, and to no more.—
(Several lawyers, however, remark, that
although this was the received sense of
iSehm in those days, yet in our time it
means indefinitely, a portion, or part.)
A bequest of "part of the estate" unde-
fned, may be construed to apply to any part.
— -IF a person bequeath 'ka part of his pro-
perty" to another without specifying to what
amount, tho heirs are at liberty to give what-
ever they please to the legatee ; for hero tho
amount of the bequest is unknown ; but as
the uncertainty with respect to that is no
bar to its validity, it is therefore valid; and
such being the case, arid the heirs being the
representatives of the testator, it is conse-
quently at their discretion to fix the amount,
in the same manner as the testator himself
might do if he were living.
Case of a, person bequeathing first a sixth,
and then a third, to the same person. — IF a
person bequeath "a sixth of his property"
to another, and afterwards, before tho .same
or another company, bequeath "a third of
his property" to that same person, in this
case the legatee is entitled to a third of the
testator's estate, whether the heirs be con-
senting or not, the sixth being included in
the latter bequest of a third.
0', first a third, and then a sixth, to the j
person. — IF a person bequeath "a third |
1 of his property" to another, and afterwards,
either before the same or another company,
bequeath "a sixth of his property" to the
same person, in that case the legatee is
entitled only to the sixth. (The proofs, in
this instance, are drawn from tho Arabic).
A person bequeathing a third of any par-
ticular property, if two-thirds of it to be lost
and the remainder come within a third of the
testator's estate, the legatee is entitled to the
whole of such remainder. — IF a person be-
queath to another "a third of his DIBMS."
amounting in all to three thousand, or "a
third of his goats," amounting in all to three,
and afterwards two- thirds of the dirms or
goats be Jost or destroyed, so that only one-
third remains, and the remaining third do
not amount to a third of the whole of the
testator's property (he having been in pos-
session of other things besides the dirms or
goats), the legatee is entitled to the complete
remaining third; that is, to a thousand
dirms in tho first case, and to one goat in
tho second. Xiffer maintains that the legatee
is entitled only to one third of what remains,
—that is, in the first instance to one third of
one thousand dirms, and in the second to the
third of the value of the goat ; because the
heirs and the legatee having had propor-
tionate claims to the whole in an indefinite
manner, are to participate in the loss accord-
ing to the proportion of their claims ; — in
the same manner as holds where the effects
are of different kinds, such as a gown, a
slave, and a house ; for if "one of these
three" be bequeathed to a particular person
in an indefinite manner, and two of them be
afterwards destroyed, the remaining one is
divided between tho heirs and the legatee ;
and so likewise in the present instance. Our
doctors, on the other hand, argue that it is
possible completely to maintain the right of
one of two partners (such as the legatee, in
the present instance) in one of three articles,
where they are all of the same class (whence
it is that the holder of a partnership pro-
perty may bo compelled, if it bo of a homo-
geneous nature, to make a division of it
among the partners ; the division, with re-
spect to any unique and specific article, being
the right of each partner respectively):—
and as the bequest precedes the right of tho
heirs,* tho right of tho legatee is therefoie
completely maintained with respect to the
thousand dirms in question,— the case being
in fact the same as where a person bequeaths
another three dirms, two of which are after-
wards lost,— when the remaining dirm goes
completely to tho legatee, according to all
our doctors. It is otherwise whore the effect
bequeathed are of different kinds; for there,
after tho loss or destruction of two of the
articles, neither the complete right of the
whole, nor the complete particular right of
* The debts and bequests due from an
estate are discharged previous to the distri-
bution of the portions of inheritance.
BOOK LIT — CHAP. IL
WILLS.
679
any ono of tho parties, can be maintained by
moans of tho remaining article ; and there-
fore the division is not set aside in favour of
the legatee on account of the priority of his
claim ; on tho contrary, the remaining article
is divided among the parties, according to
the nature of their respective claims.
A begun* of "the third of" an article
part of which is afterwards destroyed, hold*
with respect to a third of the remainder-
IF a person bequeath to another "a third of
his clothing," of which two thirds are after-
wards destroyed, and tho remaining third
exceed in value a third of the whole pro-
perty of tho testator, the legatee is in that
case entitled to only one third of tho vest-
ments that remain. Lawyers, however, have
observed that this is only where the vest-
ments are of different kinds ; for otherwise
they are considered in the same light as
dirms;— and so likewise of all articles oi
weight, or measurement of capacity, as it is
possible, in those also, to maintain complete
J ... particular
possible, .---~
the right of particular partners to
portions, whence it is that a division of
such among partners may be compelled.
IF a person bequeath to another tho third
of his three slaves," and two of them after-
wards die, tho legatee is entitled only to a
third of tho value of the remaining slave;
and the same rule also holds with respect
to different houses. Rome say that this is
according to Haneefa only ; and others, that
it is the opinion of all our doctors. 1 ho
compiler of the Hcdaya remarks that it w
approved, proceeding upon the general rule
before stated, that, 'in all articles which
admit of tho rights of tho partners being
united in them, it is practicable to unite the
right of the legatee." .
A legacy of money must be paid in JuU
with the property, in hand, although alt the
rest of the estate should be expended in debts.
—IF a person whos estate consists, partly oi
ready money, and partly of debts due to
him from others, bequeath to another one
thousand dirms, and that sum exceed not a
third of the existent property, it is paid to
tho legatee without any deduction. If, on
the contrary, it exceed a third of tho ready
property, he is only to receive a third of the
amount in hand ; and afterwards a third
must be paid him, of whatever sums may
occasionally be recovered by the heirs, until
in this manner the amount of the legacy be
completely dischraged. The reason ot this
is that the legatee is (as it were) a partner
with the heirs ; and therefore, if his claim
in particular were discharge with the ready
property (by its being applied to tho payment
of the whole of his legacy), an injury would
be occasioned to tho right of the heirs, as
ready money is allowed to bo preferable to
money that is duo.
A legacy left to two persons, one of them
being at the time dead, goes entire to the
living legatee.— If a person leave a third of
his property, "to ZKYD and OMAR," and
Omar be at that time dead, the whole of tho
third is given to Zcyd, whether the testator,
at tho time of making tho will, have been
acquainted with tho death of Omar or not;
for as a defunct is not capable of becoming
a legatee, ho therefore cannot prevent a
living person from being so ; — -in the samo
manner as where, for instance, a person I5b-
queaths something "to ZRYD and to a WALL."
According to ono tradition from Aboo Yoosaf
it is said, that if tho testator were not
acquainted with the death of Omar, Zoyd in
then entitled only to one half of tho third ;
for on such a supposition the will in favour
of Omar was valid in the opinion of tho tes-
tator ; which sufficiently indicates his will
*and intention to have been that Zeyd should
receive only one half of tho third. But it,
on the other hand, he was acquainted with
the circumstance of Omar's death it is
evident that ho intended that Zeyd should
receive tho whole, as a will in favour of a
dead man is vain and useless.
A legacy being bequeathed to tiro persons
indefinitely, if one of them die, a moid}/ of it
only goes to the other.— If a person will that
one third of his property "be divided, as a
legacy, between ZKYD and OMAR," and
Omar be at that time dead, Zeyd is entitled
to only olio half of the third ; for the words
used by the testator elearly denote his inten-
tion that caeh should have an half; but
Omar being at that time dead, the will with
respect to him is void.
A bcqucxf, made by a poor man is of force
if he afterwards become rich. — IF a person
who is poor bequeath to another "tho third
of his property," and afterwards become
rich, tho legatee is in that case entitled to a
third of his estate, to whatever amount ; for
the bequest does not take effect until after
the death of the testator, and therefore the
condition of its validity is, his being pos-
sessed of property at tho time of his decease.
Tho LAW is also the same in case the testator,
being rich at the time of making tho will,
should afterwards become poor, and again
acquire wealth.
A bequest of any article, not existing in
the possession or disposal of the testator as
his decease, is milt.— IT? a person bequeath
"a third of his GOATS" to another, and it
happen cither that he has no goats, or that
such as ho had were destroyed before his
death, the bequest is null ;for tho conditioin
or its validity is, the testator being possessed
of the property at the time of his decease,
which is not here the case. If, on the con-
trary, having no goats at the time of making
the will, he should afterwards acquire goats,
so as to leave some at his death, one thirds of
them goes as a legacy to Zeyd (according to
tho Rawayet Saheeh) ; for horo the condi-
tion of validity (namely, that the testato
die possessed of the property) exists.
link** it n-as referred to his property, it
which case it must be discharged by a pan
ment of the vulttt.—\.f a person bequeath "«
GOAT of his property" to Zeyd, and after
wards die without leaving any goats, tb
WILLS.
[VOL. IV
price of a goat must in that case be paid to
Zeyd; for the testator's expression "a GOAT
of his property " denotes his intention 4o
bequeath the worth of the animal. If, on
the contrary, he neither bequeath "a goat
of his property," nor "one of his goats,"
but simply "a goat" (to Zeyd), without any
relation to his property or herd of goats, in
that case there is a difference of opinion,
some saying that the bequest is not valid, as
the absolute expression of tho testator de-
notes his intention to have been a legacy of
the aninmal itself, of which ho had none -
whilst others maintain it to bo valid, for this
reason, that the testator having specified a
goat, of which he had none, must bo sup-
posed to have intended the worth of it. If,
on the other hand, tbe words of tho testator
were, "I bequeath one of my goats," in
that case the bequest is evidently invalid ;
because the relation to his herd of goats
determines the legacy to havo been restricted
to the animal itself . (A variety oF cases of
this nature occur, and »re determined on the
principle now stated.) .
Distribution of a bequest ™<*fa indefinitely
to three different descriptions of persons.-
IF a person bequeath "a third of his pro-
pcrty to his An-WALtos, to the diabreHHril,
iind to beggars," and tho Am - Wahcjs
amount to three in all,- in thai case, accord-
ing to the two Elder*, a third of hi* property
is, after his death, divided into five shams
of which three arc given equally among the
Am-Walids, one to tho distressed, and one
to beggars. Mohammed, on the contrary,
says that it i« to be divided into seven
shares, of which three are distributed in
equal portions among the Am-Wulidn, two
given to tho distressed, and two to beggars.
Of, to an individual, and a particular
class of people.- IF a person bequeath a
third of his property to a certain person and
to the distressed," in that case, according to
the two Elders, tho thrid is divided into two
equal parts, one of which in given to the
person named, and the other to the dis-
tressed ; whereas Mahommed maintains, that
it must be divided into throe shares, one to
be given to the said person, and two to tho
distressed.
Or to a particular class of people alone.—
IF a person bequeath " a third of his pro-
perty to the ditressed," the two Elders arc
of opinion that the executor may in that
case give tho whole of tlio third to one dis-
tressed person ; whereas Mohammed holds
that it cannot be given to fewer than two.
Case of a third person being admitted , by
the testator, to a participation with two other
legaters.— Iv a person bequeath one hun.
dred dirms to Zeyd, and one hundred to
Amroo, and afterwards declare Bicker to be
* The arguments are here omitted, as (in
e this and some following instances) they turn
on certain peculiarities in the grammar of
the Arabic language.
a participator with them, by saying, "I
have made three Bicker a sharer with Zeyd
and Omar," Bicker ia in that case entitled
to a third of each of their portions, in order
that he may be put on an equality, as tho
words of the testator evidently imply that
intention, for tho term used by him [Shirkot]
literally means equality which it is here
possible to preserve, and there is no imprac-
ticability in the execution of the bequest. It
is otherwise, where the portions of the leg-
tees are unequal, as if the legacy of Zeyd
were four hundred dirins and that of Omar
two hundred, and Bicker were declared
by tho testator to bo a sharer with them ;
for in that case the establishment of an
equality is impracticable, and therefore
Bicker is entitled to receive a moiety of each
of their shares, that they may be brought as
nearly on an equality as possible.
An acknowledgment of debt, upon a death-
bed, in efficient to the extent of a third of the
estate.- IF a person, on his death -bed, Hay be
his heirs, 'kl am indebted to Zeyd, and you
must credit what ho says," in that case the
claim of Zoyed, to any amount not exceeding
a third of tho estate, must bo admitted,
although the heirs whould falsify it. This
pi-omuls on a favourable construction. Ana.
logy would .suggest that the declaration
of Zc>d is not to be credited; for although
an acknowledgment concerning a thing un-
defined be approved, still its, effect depends
upon the ascertainment of it ; and as that
cannot bo had, because of the death of tho
acknowledger, it would follow that tho
declaration of Zeyd ia of no weight. Tho
reason, however, for a more favourable con-
struction, in this particular, is, that tho
object of the acknowledger is evidently to
givo Zeyd a preference over his heirs ; and
it being possible to execute his design in the
way of a bequest, and men being (moreover)
desirous of discharging themselves of obli-
gations where they may know of the debt
itself, but are uncertain as to the amount
(as having forgotten it), tho acknowledg-
ment is therefore considered equivalent to a
bequest of which the amount is left to tho
deterination of the legatee,— -whence tho
matter is regarded in the same light as if
the acknowledger had said to his heirs, "if
Zeyrl come and claim any thing from you on
my behalf, pay him the same, to whatever
amount," — which declaration would be re-
cognized and complied with, to the amount
of one third of the estate ; and the acknow-
ledgment being thus equivalent to a bequest,
the declaralon of Zeyd must be credited to
the amount of one third of the acknow-
ledger's estate, and no more. If, therefore,
besides the acknowledgment in question, the
dying person had made various bequests in
favour of others, one third of his estate
must be set apart for the legatees, and two
thirds for the heirs, when both parties must
be required "to verify the declaration of
Zeyd to such extent as they may think
proper.1' Now, if both parties acknowledge
BOOK L1I. -CHAP. II.]
WILLS.
681
that there in something owing to Zeyd, it is
evident that there rests a debt upon the
estate affecting the shares of each respec-
tively ; and accordingly, a deduction is
made from the legatees, to the amount of
one third of what they acknowledge to bo
owing to Zoyd, and from the heirs, to the
amount of two thirds of what they have so
acknowledged, in order tat the acknow-
ledgment of each party may be carried into
execution in proportion to his right in the
whole estate. If Zcyd should claim still
more than what falls to him in virtue of
this acknowledgment of the parties, each
party [the heirs and legatees] must be
respectively required to make oath, to the
best of their knowledge, or, in other words
to this effect, that "they do not know of
any more being due to Zeyd ; "— for they
cannot be required to swear positively, as
their oath regards a matter between the
claimant and the acknowledger merely, and
in which they are not principals,
A joint bequest to an heir and a stranger
is executed in favour of the latter only, to
the extent of one half.— I v a person bequeath
any article jointly to one of his heirs and a
stranger, in this case the bequest in favour
of the heir is not admitted, and a moiety
only of the legacy is given to the stranger ;
because, as an heir possesses the capacity of
being a legatee,* he therefore obstructs the
stranger in the title which he would other-
wise have to the complete legacy. It is not
so where a legacy is left between one person
living and another dead, for here the whole
goes to the living legatee, since as a dead
person is incapable of succeeding to a
bequest, there is no obstruction in this
instance.
And so likewise a joint bequest to the
murderer of the testator and a stranger.—
IF a person make a will jointly in favour of
his murderer and a stranger, in that case
the mui'derer is not entitled to any thing
and the stranger receives only a moiety of
the legacy, for the reason assigned in the
foregoing case, to wit, that the murderer
(like an heir) possesses the capacity of being
a legatee, and therefore obstructs the
stranger's title to the whole, as there stated,
It is otherwise where a person, on his death-
bed, makes a declaration of any specific
thing or sum duo by him to one of his heirs
and a stranger jointly ; for there the declara-
tion is invalid as well with respect to the
stranger as the heir. The reason of this
distinction is, that a will or bequest H an
indication of endowment ; and as, by it, a
joint concern is established between the two
legatees, the bequest is therefore valid with
* The incapacity of an heir to succeed to
a legacy does not arise from any natural or
original defect in him, but is occasioned
solely by the ordinance of the LAW in this
particular, which suspends it upon the
consent of his co-heirs.
respect to him, of the two, who is not under
«a legal incapacity, namely, the stranger ;—
whereas a declaration or acknowledgment
is an annunciation of the right of the parties
in whose favour it is made, referred to a past
time, under the description of joint concern,
a thing which cannot bo established ; for the
establishment of it with respect to the
stranger only, independent of the descrip-
tion of joint concern, is contrary to the
tenor of the dying person's declaration ;
and the establishment of it (on the other
hand) in the manner of joint concern, occa-
sions tho establishment of a deolaralon in
favour of an heir, upon a deathbed, which
is unlawful.
Any accident occasinoing uncertainty with
respect to the legatees annuls the will.— IF a
person bequeath throe garments of different
prices, leaving tho best to Zeyd, tho next in
value to Omar, and the worst to Bicker, and
one of these garments bo afterwards lost
without its being known which of them it
was, and tho heirs of the testator declare, to
each legatee in particular, that "his share is
lost," the bequest is null in toto, as it is in
this cose uncertain who are the legatees, and
such uncertainty occasions an annulment of
tho will, since tho Kazoe cannot pass a
decree concerning a thing unknown. If, on
the contrary, the heirs make over the two
remaining garments to the legatees, the
bequest is not null, but still continues in
force, and those two garments are divided
among them, by two thirds of the best being
given to Zcyd, two thirds of the worst to
Bicker, and the remaining third of each to
Omar.
Bequest of an apartment in a partnership
house. - If Zoyd bequeath to Omar a specific
apartment of a house held in partnership
between him and Bicker, it is requisite that
a partition be made of tho house ; and then,
if the apartment so bequeathed should fall
within the share of Zcyd, it must be given
to Omar as his legacy, according to tho two
Kldors ; whereas, according to Mohammed,
he is entitled only to one half of it. If, on
tho other hand/ the apartment so bequeathed
should not fall within tho share of Zeyd,
then, according to tho two Elders, a number
of cubits equal to tho si/o of tho bequeathed
apartment must bo given to Omar from tho
share of Zoyd, whorcas, according to Moham-
med, ho is entitled only to half that number.
Tho argument of Mohammed is that in this
case the testator has bequeathed partly his
own property, and partly the property of
another, inasmuch as tho house was shared
equally between him and Bicker in all itti
parts. Tho bequest, therefore, takes effect
with respect to the former, but remains
suspended with respect to the latter ; and if,
upon tho partition (which is a species of
exchange), the apartment fall within the
share of Zeyd, still that part of tho bequest
which had remained suspended does not take
effect, any more than where a person be-
queaths to another some article which does
WILLS.
[VOL. IV
not belong to him, and afterwards purchases
that article. Where, moreover, upon a parti-
tion of the house, the apartment in question
falls to the share of the testator, his bequest
takes effect with respect to the actual legacy,
namely, an half of the apartment ; whereas
if, on the contrary, it falls to the lot of
Bicker, Amroo (the legatee) is to receive from
the share of Zeyd, a number of yards equi-
valent to half tho apartment ; because, upon
the actual legacy failing tho bequest must be
executed by means of the consideration
received in exchange for it ; in tho same
manner as where a person bequeaths a slave
who is afterwards killed ; in which ease the
legacy must be executed from the compensa-
tion received for his blood (contrary to
where the slave is sold ; for in this case the
bequest has no connexion with the price
received, but is completely annulled by the
sale ; whereas a bequest is not annulled by a
partition, as that is also a species of separa-
tion of property). — The argument of the two
Elders is, that the testator has certainly
meant to bequeath an article in which his
property may be firmly and solidly estab-
lished by means of partition ; for his apparent
object is to bequeath an article which in
every respect may be productive of use; and
that can be accomplished only by partition,
as the use of a thing of which the property
is shared in common with another is defec-
tive.—-Where, therefore, the apartment be-
queathed, upon a partition beinc; made, fulls
to the share of Zeyd, and his property in it
is firmly established in toto, his bequest of it
takes complete effect. With respect to what
is urged by Mohammed, that * 'partition is a
gort of exchange," it may be replied that the
quality of exchange, in partition, is merely
secondary, the original design of partition
being, that each may enjoy the complete use
of his own share (whence it is that the
parties may be compelled to a partition of
it) ; according to which original design the
apartment may be said to have been in the
possession of Zcyd from the beginning.
Where, on the other hand, it falls to the
share of Bicker, in that case the bequset of
Zeyd takes effect from the share allotted to
him, to the quantity of cubits of tho whole
apartment ; because that quantity is the
consideration for the apartment, as has
been already stated :-— or, because the be-
quest must be thus construed, that the
testator, by the apartment, merely meant
a sum of measurement equivalent thereto,
in order that his design may be answered
as for as the nature of the case admits ; *
-—or else, because the testator may have
* An objection and reply are here stated,
which the translator prefers inserting in a
note in order to avoid an interruption of the
context.
**OBJKCTION.— If such be the testator's
neaning, why is the particular apartment
meant that tho apartment should go to
Omar, provided it fell to his share upon
a partition, or otherwise a sum of uceasuro-
ment equivalent to it;— this case being
analogous to that of a man suspending
the freedom of a child born of his female
slave, and the divorce of his wife, upon the
circumstance of his female slave bearing the
child (by saying, "upon my female slavo
being delivered of her first-born child, such
child is free and my wife divorced") ; which
is construed to mean any child, to produce
the divorce, and a living child to produce
tho emancipation. ~-J It is to bo observed
that where the apartment does not fall to
tho share of Zeyd, if the extent of the
whole house be one hundred cubits, and
that of the apartment ten, Mahomraed in
that case is of opinion that the share of
Zeyd is to be divided into ten parts, of
which nine must be given to the heirs,
and one to Omar ;— whereas the two Elders,
hold that the share of Zeyd is to bo divided
into five parts, of which one must be given
to Omar, and four to the testator's heirs.
(With respect to what is mentioned in tho
Hedaya, that ]aecording to the two Elders]
" the share of the testator is divided into
eleven parts, of which two are given to
Omar and nine to the heirs, "it is a mistake,
for this mode of division obtains only in
cases of declaration or acknowledgment.) It
is here proper to remark that if a acknow-
ledgment be made under the same circum-
stances as are here stated, as if Zeyd should
declare an apartment of tho extent of ten
cubits, in a house of one hundred cubits,
which he possessed in common with another
to be the property of Omar, some say that in
this case also a difference of opinion obtains
between the two Elders and Mohammed;
whilst others maintain that there is no
difference of doctrine in this point, Moham-
med also holding (in common with tho two
Elders) that in case the said apartment fall
to the share of Zeyd, it goes complete to tho
acknowledgee [the person in whose favour
the acknowledgment is made], or otherwise,
that the share of the acknowledger is divided
into eleven parts, of which two are given to
the acknowledgee and nine to the acknow-
ledger. The reason of this last adjustment
is that the acknowledger here makes his
given to Omar when it falls to the share of
Zeyd?"
*' REPLY. — The apartment in question is
made the legacy, where it falls to the share
of Zeyd, for this reason, that in thus settling
the matter a regard is paid to the two chief
distinguishing circumstances of the ease,
namely, the quantity or sum [of the thing
bequeathed], and the investiture [of the
legatee] with the actual apartment :- and
as, where the apartment falls to the lot of
Bicker, it is impossible to pay attention to
both circumstances, it accordingly in that
case suffices to pay attention to the first."
BOOK LIL- CHAP. II.]
WILLS.
683
acknowledgment to this purpose ; " the
house which, exclusive of that apartment,
measures ninety cubits, is the joint property
of me and my partner, — -of which forty-five
appertain to me ; " and the acknowledgee
claims ten cubits from the fifty which fall to
the share of tho acknowledger. The fifty
cubits therefore, which constitute a moiety of
the house, are divided between the acknow-
ledger and acknowledgee in this way, that
tho acknowledgee takes in the proportion of
ten cubits, and the aoknwledger in tho pro-
portion of forty-five, and accordingly that
moiety of the house is disposed of In eleven
shares. It is otherwise with respect to a
bequest, as before stated ; for there this
mode of division cannot obtain, as the
testator, in making bequest, cannot bo
supposed to have said "the house, except
such an apartment, is in common botwoen
me and my partner," since if ho were to
speak thus his bequest would be null, as the
bequest of another's property is not ap-
proved, Mohammed further remarks that
the difference between a bequest and an
acknowledgment is this, that an acknow-
ledgment affecting the property of another
is approved (insomuch that if a person were
to declare that "such a thing, hold by Zeyd,
is the property of Amroo," and this person
should at any time thereafter become pro-
prietor of that thing, ho is directed to
deliver it up to Amroo), whereas a bequest
of the property of another is utterly null
and void, insomuch that if a person bequeath
any thing belonging to another, and after-
wards become proprietor of that thing, and
die, still the bequest is of no effect.*
* There being here a considerable devia-
tion from the original text, and also some
confusion in the subject (owing to tho quan-
tity of extraneous matter introduced by the
Persian commentators, the translator thinks
it his duty to give the whole passage lite-
rally; from} p. 682 to* p. 683, as stated in the
Arabic copy.—'* here tho apartment falls
to the other partner, not tho testator, the
house measuring one hundred cubits, and
the apartment ton cubits^the testator's share
is divided into ten lots, nine for tho heirs,
and one for tho legatee. — This is according
to Mohammed ; for the suposes the legatee
to multiply a moiety of tho apartment by
five (the number of cubits it measures), and
the heirs tho half of the remainder of the
house by forty- five ; and thus the whole will
compose five lots f°f ton cubits], which
makes ton [lots of five cubits].— But accord-
ing to the two [EMers] it is divided into
eleven lots ; because they suppose tho legatee
to multiply by ten, and the heirs by forty,
five ; and thus the whole composes eleven
lota two for the legatee, and nine for the
heirs, — If declaration [acknowledgment] be
put in the place of bequest, it is said there is
a difference of opinion:— but it is also said
that there is no difference on the part of
The, validity of a bequest of money belong,
ing to another rests upon the proprietor's
fonsent. — IF a person bequeath a thousand
dirms that belong to another, the execution
of the bequest rests entirely on the consent
of the proprietor, and it is optional in him»to
confirm it, or not, as he pleases. If he,
therefore, after tho death of the testator,
give his consent, the bequest is valid, and
the money paid to the legatee accordingly.
This consent, however, is purely voluntary
and gratuitous ; whence if, after having
signified it, tho person refuse to pay the
money, it is lawful.
An hfir, after partition of the estate, ac-
knowledging a bequest in favour of another
must pay the acknowledged legatee his pro*
portion of such bequest. — -Ip two sons make
a partition of their father's estate, and one
of thorn then declare that "his father had
bequeathed a third of his property to Zeyd,"
he ftho declarer] must in that case make
over a third of his portion to Zeyd. This
proceeds upon a favourable construction.
Mohammed, on the contrary, maintains that
the declarer is to make over an half of his
portion to Zoyd (and such is what analogy
would suggest) because when this son made
the declaration that Zeyd was entitled to a
third, he then in fact declared Zoyd to be
entitled to as much as himself, whence it is
requisite that he make over a moiety of his
portion to him, in order that both may be
placed on an equality. Tho reason, how-
ever, for a moro favourable construction in
this particuar is, that the son has here made
a declaration, in favour of Zeyd, of one
third, affecting the whole estate indefinitely;
and as the whole estate has gone in two por-
tions, each falling to each son respectively, it
follows that the son has made his declaration
in favour of Zeyd with respect only to a
third of his own portion.
Bequest of a female slave who (previous to
the partition of the estate) produces a child.
—Iff a person bequeath a particular female
slave to Zoyd, and after his death tho said
slave bring forth a child, the legatee is in
that case entitled to both the mother and
child, provided, however, that their added
value do not exceed a third of the estate, for
then Zoyd is to receive the female slave, as
far as a third of the estate, and if her value
Mohammed,— the only difference, according
to him, being that an acknowledgment
affecting tho property of another is valid,—
insomuch that he who makes an acknow-
ledgment concerning property possessed by
another in favour of a different person, and
afterwards obtains possession of the same,
must be directed to give it up to the ackno-
ledgo ;•— whereas a bequest affectng the
property of another is null ; insomuch that
if the testator should by any means after-
wards became possessed of that property,
and then die, still his bequest does not pass*'
[is of no effect],
684
WILLS.
[VOL. IV
be short of the third, the residue must be made
up to him from the value of the child. This
is according to Heneefa. The two disciples,
on the contrary, maintain that in this case
the legatee is to receive to the amount of a
third of the property from both the mother
and child, in proportion to their respective
values. Thus if the value of the mother be
three hundred dirms, that of the child the
same, and the other effects amount to six
hundred dirms, the whole forms an estato of
one thousand two hundred dirms, of which
a third is four hundred. Now Hanccfa holds
that in this case the fomalc slave must be
made over to the legatee in payment of three
hundred dirms, and he also receives one
hundred dediicted from the value of the
child ;— whereas the two disciples maintain
that he is entitled to a deduction of two thirds
from the value of each. The argument of the
two disciples is, that the child is virtually
included in the bequest, from its being (as it
were) a dependent on the original subject of
it, and that, therefore the bequest must be
executed proportionally from both, without
preference or distinction.— The argument of
Haneefa is, that the mother is the original
subject of the bequest, and the child only
a dependent ; and the dependent cannot
obstruct the original. If, moreover, the bo-
quest were executed equally from both, it
induces this consequence, that a part of the
legacy is split off from the original subject,
which is unlawful. All that is here advanced
proceeds on a supposition of the birth of the
child happening prior to the partition, and
the acceptance of the legatee; for if it should
take place afterwards, the child incontestibly
belongs to him, as being the offspring of his
property ; for his right in the slave was
fully and completely established by the par-
tition.
Section.
Of the Period of Making Wills.
Gratuitous acts, of immediate operationt
if executed upon a death bed, take effect to
the extent of one third of the peroperty only.—
IT is to be observed, as a general rule, that
where a person performs, with his property,
any gratuitous deed, of immediate opera-
tion (that is, not restricted to his death), if
ho be in health at the time, such deed is
valid to the extent of all his property — or,
if he be sick,* it takes effect to the extent of
one third of his property ; and where a
person performs such deed, with his pro-
perty, restricted to the circumstance of his
decease, it takes effect to the extent of a
third of his property, whether, at the time,
* Arab. Marecz.— This term (as has been
already observed) literally means sick. In
the language of the LAW, however, it is
always used to signify a dying person,— that
is, "sick of a mortal illness ;" and in that
sense it is invariably to be understood
throughout this book*
he bo sick or in health, If, on the contrary,
a person makes an acknowledgment of debt,
such acknowldegment is of effect to the
whole extent of his property, notwithstand-
ing it be made during sickness, as this is not
a gratuitous deed. Still, however, a decla-
ration of this nature, made in health, pre-
cedes a declaration of the same nature made
in sickness. It is also to bo remarked, that
a sickness of which a person afterwards re-
covers is considered, in LAW, as health.*
An acknowledgment on a death bed is valid
in favour of a person who afterwards be-
comes an heir ; but not a bequest or gift. —
IF a sick person make an acknowledgment
of debt in favour of a strange woman, or
make a bequest in her favour, or bestow a
gift upon her, and afterwards marry her
and then die, the acknowledgment is valid;
but the bequest or gift is void ; for the nul-
lity of an acknowledgment in favour of an
heir depends on the person having been an
hoir at the timo of making it, whereas the
nullity of a bequest in favour of an heir
depends on the legatee being so at the time
of the testator's death, as has been already
explained ; and as the woman was not an
heir at the time of the acknowledgment, but
had become so [by marriage] at the time of
the testator's death, the acknowledgment is
therefore valid, but the bequest is void ; and
so likewise tho gift, it being subject to the
same rule as the bequest.
Neither is an acknowledgment so made
valid, if the principle of inheritance had
existed in the person previous to the deed*-
JF a sick person make an acknowledgment
of debt duo by him to his son, or make a
bequest in his favour or bestow a gift upon
him, at a time when the son was a Christian,
and ho [the son] afterwards, previous to his
father's death, become a Mussulman, all
those deeds of acknowledgment, gift, or be-
quest, aro void : the bequest and the gift,
because of the son being an heir at the death
of his father, as above explained ; and the
acknowledgment, because, although the son,
on account of the bar (namely difference of
religion), was not an heir at tho time of
making it, still tho cause of inheritance
(namely consanguinity) did then exist, which
throws an imputation on the father, as it
engenders a suspicion that ho may have
made a false declaration, in order, to secure
the descent of part of his fortune to his son.
It is different in the case of marriage, as
above stated ; far there the cause of inhe-
ritance (namely, marriage), occurred posto-
rior to the acknowledgment, and had no
existence prvious thereto ; for supposing
tho marriage to have existed at tho period of
making the acknowledgment, and that the
wife, being then a Christian, should after*
* This passage has no place in the Arabic
copy It has been introduced in the Per-
sian version as a premiss necessary to the
completely under standng of what follows
BOOK LIL- CHAP. III.]
WILLS.
685
wards, before the husband's death, become
a Mussulman, in that case it (the acknow-
ledgment) would not bo valid.
Such acknowledgment, gift or bequest, in
favour of a son, being a slave, who afterwards
becomes free previous to the father's decease,
is nevertheless void. — -!F a sick person make
an acknowledgment of debt due by him to
his son, who is an absolute slave or Moka-
tib, — or bestows gift upon him, or make a
bequest in his favour, and the son should
afterwards, before the death of his father,
obtain his liberty, in that case none of these
deeds are valid, because of the reasons ex
plained in the preceding example. It is
related, in the Mabsoot, under the head of
Acknowledgments, that "the acknowledg-
ment of a sick person in favour of his son
who is a slave is valid, provided the slave be
not in debt ; for in that case the acknow-
ledgment is, in effect, in favour of the
master, who is a stranger ; and an acknow-
ledgment in favour of a stranger is valid; — •
whereas, if the slave were involved in debt,
his father's acknowledgment in his favour
would not be valid, as in such case it could
not be construed to be in favour of the
master, since an indebted slave is the pro-
prietor of his own acquisitions." — -The be-
quest is, however, invalid, because to estab-
lish it regard must be paid to the time of
the testator's death, and the son is at that
time an heir, as being then free. With re-
spect, indeed, to the gift, it is said to be
valid,* provided the slave bo not indebted ;
because a gift is an immediate transfer and
investiture ; and as the son is at that period
a slave, the gift is in effect in favour of the
master, but if he be involved in debt the
gift is invalid, as in that case he is master of
his own acquisitions, and a gift is considered
as such. According to the more commonly
received authorities, however, the gift is
void on either supposition ; for as a gift
during a mortal illness is equivalent to a
bequest, it is therefore invalid, in the same
manner as a bequest would be which was
made in favour of the same person.
fiule for ascertaining a deathbed illness. — •
PAHAT.YTKJ, gouty, or consumptive persons,
where their disorder has continued for a
length of time, and they are in no immediate
danger of death, do not fall under the de-
scription of sick [Mareez], whence deeds of
gift, executed by such, take effect to the
extent of their whole property ; because,
when a long time has elapsed, the patient
has become familiarized to his disease, which
is not then accounted as sickness. (The
length of time requisite, by its lapse, to do
away the idea of sickness in those cases is
determined at one year ; and if after that
time the invalid should become bedridden,
he is then accounted as one recently sick.)
If, therefore, any of the sick persons thus
described make a gift in the beginning of
* Probablv meaning "in the Mabsoot."
their illness, or after they are bedridden,
such gift takes effect from the third of their
property, because at such a time there is
apprehension of death (whence medicine is
then administered to them), and therefore
the disorder is then considered as a deattfbed
illness.
CHAPTER III.
OF EMANCIPATION UPON A DEATHBED ; AND
OF WILLS RELATIVE TO EMANCIPATION.
Emancipation, gift, and acts of Mohabat,
on a deathbed, take effect to the extent of a
third of the property.— IF a person, on his
deathbed, emancipate a slave, or give a por-
tion of his property to another, or make a
Mohabat,* in purchase or sale, by buying an
article at an over- value, or selling it at an
under-value,— or concerning the dower, hire,
or so forth, — -or become security for another
all these deed.s are considered in the light of
a bequest, and take effect to the extent of a
third of his estate
Case, of a Mohabat, and an emancipation
by the same person — -£F a sick [dyingl per-
son make a Mohabat [of any kind], f and
then emancipate his slave, and [after hia
death! the third of his prperty suffice not
for both, in that case Haneofa is of opinion
that the Mohabat has the preference ; — in
other words, if, after executing the Mohabat,
any part of the third remain, the slave is,
without recompense, free in that proportion,
and must perform emancipatory labour for
the remainder of his value, — -or for his full
value, if nothing remain.— If, on the con
trary, the person first emancipate the slave,
and then make the Mohabat, the slave,
and the person in whose favour the Mohabat
is made, are upon a perfect equality,
and each takes from the third of the estate
in proportion to his right : —as, for instance,
*Mohabat literally signifies connivance. — •
Thus, a purchaser or seller who gives more,
or takes less, for an article than its real value,
connives at the loss.-' This term, therefore, is
not confined to sale, but extends to every act
in which the person connives at his own loss,
such as (in the case of dower) paying the
wife more than she is entitled to, or (in a
case of hire) paying the hireling more than
he had agreed for.- The translator preserves
the original term, as it is purely technical.-
The Arabic text expresses this passage with
great brevity :'Whoso frees his slave in sick-
ness, or sells, or connives, or gives, it is law-
ful, and recognized to the extent of a third
of his property."
t That is, "execute any contract, or pei
form any act, by which he sustains a wilful
loss,'1
686
WILL»S.
[VOL. IV
the slave is emancipated from the third
of the estate in the proportion, of hi
value, and performs emancipatory laboui
for the remainder, — and the person in whose
favour the Mohabat is iniide takes in the pro
portion of his Mohabat, and makes good th
remainder.— The two disciples maintain that
the emancipation has the preference in both
cases, for it is the stronger, inaaumch as it
does not admit of retractation. Haneefa on
the contrary, maintains that Mohabat is the
stronger, as being interwoven in a compact
of exchange : contrary to emancipation, for
in that there is no exchange. If, therefore,
the Mohabat bo first made, it sets aside the
emancipation, because of the comparative
weakness thereof;— whereas, if tho emanci-
pation be first made, it obstructs the Moha-
bat, because of its priority, but still does not
set it aside, as emancipation is incapable of
setting aside a Mohabat j—whencc, in this
instance, both are placed upon a footing
According, therefore, to this difference of
opinion, if a person be possessed of two slaves,
one valued at two hundred dirms, and the
other at one hundred, and first sell the for-
met by a Mohabat sale, for one hundred
dirms, and afterwards emancipate the latter
and die, leaving no other property, in that
case, according to Haneefa, the Mohabat is
executed in full, and the other slave is re-
quired to perform emancipatory labour to
the full amount of his value ; -whereas if, on
the contrary, the emancipation precede the
Mohabat, then a third of the value of both
slaves, amounting to ono hundred dirras, i*
divided equally between both parties (that
is between the emancipated slave and the
person in whose favour the Mohabat was
made) ; and accordingly, a moiety of the
slave is emancipated without any considera-
tion, and he is to perform emancipatory
labour for fifty dirms more, being the remain-
ing half of his value ;— and fifty dirms are
deducted, in the manner of a Mohabat, from
the slave sold by Mohabat, and his price is
then one hundred and fifty dirms, for which
the purchaser is accountable : —but tho two
disciples maintain that the slave is com-
pletely free in both instances. In the same
manner, if a person, upon his deathbed, first
sell a slave by Mohabat, then emancipate a
second, and afterwards sell a third by Moho-
bat, and have no other property besides these
three slaves, in that case, according to
Haneefa, the half of the third of tho pro-
perty must be allowed to the person in whoso
favour the Mohabat was first made, and the
remaining half of the third is equally divided
between the emancipated slave and the one
in whose favour the last Mohabat was made ;
—whereas, had he first emancipated one,
then sold the second by Mohabat, and after-
wards emancipated the third, in that case one
third of the estate would be divided into two
equal shares, of which one would be given
to the person, in whose favour _the Mohabat
sale was made, and the other equally divided
between the two emancipated slaves : — but
the two disciples maintain that in both oases
the emancipation is to be perferred.
Mohabat or emancipation precede, in their
execution, the actual bequests. — It is to be
observed, as a standing rule,* that where
a person bequeaths several legacies, and the
third of his property suffices for the payment
of the whole, they are all carried into execu-
tion without a preference being given to
either. But if, besides these legacies, he
should in his last illness emancipate a slave,
or direct the emancipation to take place after
his death, or sell something by Mohabat, —
in that case both kinds of emancipation, as
well as the Mohabat, are preferred to the
legacies, and must therefore be first executed
from the third of the estate, and the remain,
der (if there be any) is then divided equally
among the legatees.
The appropriation of a sum, by bequest, to
the emancipation of a slave is annulled, by the
subsequent loss or failure of any part of it ;
but not the appropriation of a sum to the
performance of a pilgrimage.- -If a person,
on his deathbed, set aside ono hundred dirms,
and will that " after his death the said sum
be applied to tho emancipation of a slave,*'
and one dirm of the number happen to be
lost, in that case Haneefa maintains that the
will is annulled, and that the remaining
ninety- nine dirms cannot be applied to the
purpose of emancipating a slave If, on the
contrary, the person will that "the said sum
bo appropriated to defray the expense of a
pilgrimage to Mecca," in that case the loss or
destruction of one dirm does not invalidate
the will, but the remaining ninety-nine dirms
are applied to the purpose prescribed by the
testator, by deputing a person from such a
distance as may enable him to reach Mecca
by means of the said sum (If also, in this
last case, part of the sum have been lost or
destroyed, a,nd there remain a part after the
return of the pilgrim, it must be restored to
the heirs.) The two disciples maintain that
the will is valid in the former instance like-
wise, and the ninety-nine dirms applied to
the emancipation of a slave, in the same
manner as (in the other instance to the per-
formance of the pilgrimage,. The argu-
ment of Haneefa, is that, in the former in-
stance, the will direct the emancipation of
a slave valued at one hundred dirms ; and
therefore, if it were executed with ninety-
nine dirms, it would take effect in favour of
a person different from the intended legatee,
which is not lawful. It is otherwise with a
bequest concerning pilgrimage, as pilgrimage
is purely a religious duty, and religious
duties appertain exclusively to GOD ; and as
GOD therefore is the legatee in this instance,
a diminution of the sum does not induce an
execution of the will in favour of any other
than the legatee, since a pilgrimage for
* Arab. Asl ; literally, a root ; meaning
(in this place) a principle or ground of deci-
sion in all parallel cases,
BOOK LIL— CHAP. II.]
WILLS.
687
ninety- nine dirms is performed on behalf of
GOD, as much as a pilgrimage for one hundred
dirms. Some have observed that this diffe-
rence of opinion between Haneofa and the
two disciples is founded on the different son.
timents they entertain with respect to the
emancipation of a slave ; the two disciples
holding it to be a religious act, in the same
manner as the performance of a pilgrimage ;
and Hancefa considering it as an act in
favour of the slave alone. (The compiler of
the Hedaya remarks that this last opinion is
approved*.)
A slave exceeding a third of the property,
emancipated on a deathbed, is exempted from
emancipator}/ labour by the heirs assenting
to his freedom.— If a person during his last
illness emancipate a slave valued at one
hundred dirms, and die, leaving two Rons
and one hundred dirms, and the emancipated
slave and his heirs give their consent to the
emancipation, the slave is not required to
perform any emancipatory service whatever,
but is free without so doing ; for although
the manumission was equivalent to a bequest
in the proportion beyond a third of the eman-
cipator's property, yet it is valid on the heirs
assenting to it.
A bequest of emancipation, in favour of a
slave, is annulled by his being made over In
compensation for an offence committed by
him.— If a person will that " his heirs eman-
cipate his slave at his decease." and tho
slave, after the death of tho testator, commit
an offence, and tho heir surrender him, as
a compensation, to tho avenger of offence,
the will is void ; because the surrender of
him in compensation for the offence is ap-
proved ; for as the right of the testator must
yield to that of the avenger of offence, the
right of tho legatee must consequently yield
to it likewise, since a legatee obtains his
right in the legacy from the testator ; and
as, upon the slave being surrendered in com-
pensation for the offence, he passes out of the
property of tho testator, the will is void of
course. If, on the contrary, tho heirs prefer
paying a redemptionary atonement ; the will
remains valid, and does not become void
(but in this case the redejnptionary atone-
ment falls entirely upon their property, as
they have themelves undertaken the pay-
ment of it) ; and as the slave, by the pay-
ment of the redemption, is purified from the
offence, the case is therefore tho same as if ho
had not offended it all, and the will takes
effect of course.
Where the heir and the lagatee agree con-
cerning a slave having been emancipated by
the testator, the allegation of the heir is
credited with respect to the date of the deed.
—If a person bequeath to another a third
of his property," and leave, among his other
effects, a slave, and the legatee and heirs
agree that the testator had emancipated the
slave, but differ with respect to the time of
such emancipation (the legatee asserting
that it was during his health, and the heirs,
on the other hand, maintaining that it was
during his sickness), in that ease- the word
of tho hoirs must be credited, and the legatee
is entitled only to what remains after the
value of the slave is deducted from tho third
of tho testator's whole property ;* because
tho legatee here plenties his title to a t'hird of
what remains after the emancipation of the
slave, sinco manumission granted during
health does not stand as a bequest (whence
it is that it takes effect from tho whole of tho
property), and the heirs resist his pica-,
asserting that the testator had emancipated
the slave during sickness ; and as manu.
mission during sickness is a species of be-
quest, and takes place of a bequest of a third
of the property, the hoirs are therefore nega-
tors ; and as the assertion of a negator ["the
defendant], upon oath, must bo credited
tho legatee is therefore entitled to nothing
whatever;— unless there should remain some
excess in tho third of the property over
and above the value of the slave, in which
case the legatee is entitled to such excess-
or, unless the legatee confirm his assertion
by evidences, in which ease he js entitled
to a third of what remains of the whole
estate after the emancipation of the slave.
Case of an alleged emancipation and debt
credited by ///<- heir*.— I* a person die '
leaving no other property except one slave
and the slave say so the heirs "your father
whilst lie was in health, emancipated me,"
and another person say to them "your
father was indebted to me one hundred
dirms," and the heirs credit both these
assertions, (as, for instance, by replying to
them together, "you both speak truly"),
the slave is, in that case, required to per-
form emancipatory labour to the full extent
of his value, according to Haneefa. The
two disciples, on the contrary, maintain that
the slave is emancipated without performing
any service whatever, because the proof of
tho debt and of the emancipation during
health are ostablishod, jointly, as tho heirs
have acknowledged both at the same time,
and the emancipation of a slave during
health docs not induce the necessity
of labour notwithstanding the emancipator
should be involved in debt. Tho argument
of Ifanecfa is, that tho acknowledgment of
the debt on tho part of tho heirs is stronger
than that of the emancipation ; because the
former is valid at whatever period it may
have been contracted, and is dischargable
from the whole estate ; whereas tho latter, if
performed during sickness, is limited to a
third of the estate ; and such being the case,
it would follow that the emancipation is
utterly annulled. As, however, emacipa.
ton, after having been made, does not admit
of being absolutely annulled, it is therefore
virtually annulled, in this instance, by the
* Liteially, *ki« entitled to nothing wh|it.
over." Thu translator renders tho passage in
a modified souse, because of the reservation
afterwards stated.
688
WILLS.
[VOL. IV
imposition of emancipatory labour, — -The
same difference of opinion subsists in the
case where a person, dying, loaves one thou
sand dirms, and one person assorts that the
decease owed him one thousand dirms, and
another, that he had deposited one thousand
dirms in trust with the deceased, and the
heirs confirm both assertions at one and the
same time ; for in such case the two disciples
are of opinion that both claims are upon an
equal footing, and the one thousand
dirms are therefore to bo divided equally
between the parties ; whereas TTanoefa main
tains that the claim of the depositor is the
strongest, as his right relates to the identical
dirms whilst the creditor has only a general
claim on the person.
Section.
Of Bequests for Pious Purpose*.*
In the execution of bequests?, to sundry
pious purposes, the ordained duties precede
the voluntary. — IF a person make several
bequests for the performance of sundry
religious duties, such as pilgrimage, payers,
and so forth, it is requisite to execute first
such as are absolutely incumbent and
ordained ;f and this, whether the testator
have mentioned them first or not ; for the
discharge of the ordained duties is of more
importance than that of acts which are
merely voluntary ; and the law therefore
supposes that the object of the testator was
to begin with the performance of them.
Unless all the purposes mentioned be of
equal importance, in which case the arrange-
ment of the testator must be followed.— BUT
if the several duties, the objects of the will,
be all of the same importance, and of simi-
lar force, and the third of the estate suffice
not for the discharge of the whole, they
must in that case be executed agreeably to
the order in which they have been specified
by the testator, as it may be inferred that
those to which he gave the precedence were,
in his opinion, the most urgent. Tahavoe
maintains that alms are to be executed
before pilgrimage. There is also one report
from Aboo Yoosaf to the same effect. An-
other opinion reported from him is, that
pilgrimage precedes alms ; and such is the
opinion of Mohammed. The argument in
favour of the first report is, that both are in
an equally strong degree enjoined by GOD :
but yet alms, as being connected with the
rights of mankind, must bo preferred, the
right of the individual preceding the right
of GOD. — -The argument in support of tho
second report is, that the performance of
* Literally, "of bequests to the rights of
GOD."
t Arab. Farz : a term applied to any
thing enjoined as an indispensable duty,
and more particularly to the five primary
duties ; purification, prayer, alms, fasting,
and pilgrimage.
pilgrimage, besides tho expenditure of
money, requires also an exertion of tho
body ; and as this is not the case with
alms, pilgrimage has therefore precedence.
Either of those, however, is preferable to
expiation, because they have been in a
greater number of instances, and in a
stronger degree enjoined by GOD.— Again :
expiations for murder, for Zihar, and for a
broken vow, are preferable to Sadka.fittir
[charity given on the day of breaking fast]-
because these expiations have been enjoined
in tho KORAN, whereas the latter has not.
Sadka.fittir, on the other hand, is preferable
to sacrifice, because it is an incumbent duty
in tho opinion of all our doctors, whereas a
difference of opinion subsists with respect to
the absolute obligation of sacrifice.
As well as where the purposes of the be-
quests are purely of a voluntary nature. — •
IN the execution of all pious wills, where
tho objects of them are not incumbent
duties (such as the erection of a mosque of
a receptacle for travellers, or of a bridge), it
is requisite to follow tho arrangement of tho
testator, since it may be inferred that he
considered those first mentioned as tho most
urgent. Lawyers, moreover, have remarked
that if a person make several bequests, some
for the performance of religious duties
immediately enjoined by GOJ>, and others
for beiiovolent purposes amongst mankind,
in that case a third of his property must bo
set aside for tho execution of them ; and
whatever may bo tho share appropriated for
the performance of the duties belonging to
UOD, it must be applied agreeably to the
order of arrangement, as already explained
— It is to be observed, also, that every
different duty is to be considered in tho
nature of a distinct legacy ; for, tho object
of each being tho attainment of the goodwill
of the ALMIGHTY, every several duty has an
object in itself, and each is therefore to bo
considered in the nature of a legacy left to
a different person.
Rules in bequests towards the performance
of a pilgrimage. — Ira person will that "tho
pilgrimage incumbent on him bo performed
on his behalf after his death," in that caso
the heirs must depute a person for this pur-
pose from the city of the testator, and furnish
him with such conveyances and equipments
as arc suitable to his [the testator's] rank ;
because, being performed on his account, it
must be executed in tho same manner as it
actually performed by himself. But if tho
property of the testator be inadequate to tho
expense of sending a person from his own
city, in that case a person must bo sent from
some other nearer place, tho distance of
which from Mecca may be proportioned to
the amount of the property.
IF a person set out from his own city, with
an intention of performing the pilgrimage to
Mecca, and die on the road, after having
willed that the pilgrimage be prformed [by
others] on his behalf, a person must be de-
puted for this purpose from the city of the
BOOK L1I.— CHAP. IV.'
WILLS.
6S9
testator, according to Hancefa (and such
also is the opinion of Ziffer). The two
disciples, on the contrary, maintain that a
person is to be sent from the place at which
the testator had arrived in the prosecution
of his intention ;— and the same difference
of opinion obtains where a person, having
undertaken the pilgrimage on account of
another, dies in the like manner on the road.
The reasoning of the two disciples is, that
the performance of a part of tho jounrey,
with the intention of having prosecuted the
remainder, is in itself an act of piety, which
is entitled to merit with GOD, and which
annuls, in a proportionate degree, the obli-
gation of the duty. Hence the pilgrimage
is to be recommenced from tho place in
which he died, and which in effect has
become (as it were) his city. It is otherwise
where a person, with a view of trading, sets
out on a journey to Mecca, and does on the
way, after having willed that the pilgrimage
be performed on his behalf ; for in this case
the part of the journey already performed
not being an act of piety, there is as evident
necessity for sending person from the city
of the testator.— Tho reasoning of Haneefa
is, that the will must be construed as moan-
ing a commencement from the city of the
testator, in order that the pilgrimage may
be completely performed in the manner in
which it was originally incumbent on tho
testator.
CHAPTER IV.
OF WILLS IN FAVOUR OF KINSMEN AND
OTHER CONNEXIONS.
A bequest to " a neighbour " is in favour
of the owner oj the next adjoining house.—-
IF a person make a bequest in favour of "his
neighbour,"* this according to Haneefa, is a
bequest to the person whoso house is imme-
diately adjoining to that of the testator. The
two disciples, on the contrary, maintain that
it comprehends all the inhabitants of the
vicinity, who belong to the same mosque-
without any regard to the immediate adjunc-
tion of the houses ; since, according to the
common acceptation of the word, they all fall
equally under the description of neighbours.
The arguments adduced by Haneefa in support
of his opinion upon this point are two fold.
FIRST, the person whose house adjoins to
that of the testator is in reality the neighbour.
* Specifying the legatee by description
only, without mentioning his name; as thus,
" I bequeath one thousand DIRMS to MY
NEIGHBOUR," — In this and the succeeding
examples, tho effect turns entirely on the
terms in which tho testator signifies his
bequest.
—SECONDLY, tho modes and descriptions of
neighbourhood are many ; and as ifc would
bp impracticable to carry tho will into execu-
tion with respect to the whole, it is therefore
necessary to restrict it to him whose title,
from the circumstance of adjunction, is the
most perfect and indisputable.
And comprehends all competent descrip-
tions of persons.— IT is to be observed that
the learned in the law are of opinion that
every person may be included under this
description of neighbour, whether the pro-
prietor of a house or not, or, whether a man
or a woman, a Mussulaman or a Zimmee, the
term neighbour being equally applicable to
all these. Haneefa also holds that an
absolute slave, possessed of a house in the
neighbourhood, is entitled to the benefit of
the will.— Tho two disciples hold a different
opinion ; because, in such case, the benefit of
tho will would ultimately revert to the master
of tho slave, who is not supposed to be a
neighbour. The argument of Haneefa, is
that the term neighbour applies indiscrimi-
nately to all.
Rvhs in bequetts to "the Ashar" of the
testator. — IF a person make a bequest in
favour of "his As'har," * all the relations of
his wife within the prohibited degrees (suoli
as her father, brother, and so forth) are therein
inculded ; and likewise all the relations of
his father's wife [his stop mother] and of his
son's wife [his daughter-in-law] within the
prohibited degrees, as these all stand in the
relation of As'har to the testator. This ex-
planation of As'har has been followed by
Mohammed and Aboo Obeydah. It is to be
observed that all tho kindred of the wife
within the prohibited degrees are included
in the bequest, notwithstanding she were, at
tho time of tho death of the testator, in her
edit from a reversible divorce. But if the
divorce was irreversible, her relations are
not to bo included, as the existence of that
degree of relation entitled As'har depends on
tho actual existence of tho marriage at the
time of the testator's death ; and by an irre-
versible divorce marriage ii utterly annulled.
And to his Khatn.-lv a man make a
bequest in favour of "his Khatn," it is a
bequest to the husbands of his female relations
within the prohibited degrees ; and in it are
likewise included all the relations of these
husbands within the prohibited degrees,
these also falling under tho description of
Khatn. — (Some commentators remark, that
this explanation is agreable to the ancient
custom ; but that in the present times Khatn
comprehends only tho husbands, as above.)—
It is also to be observed that in this respect
freemen and slaves, and the near and the
distant relations are all upon a footing,
because the terms Khatn comprehends the
whole of these.
* As'har is the plurl of Sheral (pronounced,
in Arabia, Dehr), which is a general term
for all relations by marriage
690
WILLS.
[VoL. IV
And to his Akraba.— If a person make a
will in favour of his "relations** [Akraba*],
it is executed in favour of the nearest of kit)
within the prohibited degrees, and failing of
them, in favour of the next in proximity,
and so on with respect to the rest within the
prohibited degrees, in regular succession.
The will, in this case, includes two or more ;
but the father, mother, or children of the
testator are not comprehended in it. This is
the opinion of Haneefa. According to the two
disciples, the will includes only such as are
descended from the most distant progenitor
of the testator, professing the Mussulman
faith.— (Concerning the meaning of " the
most distant progenitor professing the faith."
there is a difference of opinion ; some main-
taining that this applies to the remotest
ancestor who actually embraced the faith and
others alleging that it extends to the remotest
ancestor who may have known of the exist-
ence of the faith, although he himself may
not have acceded to it ; as is exemplified in
the case of Aboo Tulib, who although ho
understood the Mussulman faith, never em-
braced it.) The argument of the two disciples
is, that the term relations being in general
applied all of the same blood, the will there-
fore extends to all such as fall under this
description, to whatever degree removed. The
arguments of Haneefa are that legacies are
a species of inheritance ; and as, in inherit-
nee, the arangement here described is
observed with respect to the heirs, it is also
observed in the payment of legacies.— As,
moreover, the plural term [AkrabaJ men-
tioned in inheritance means two, so likewise
in bequest.f— Besides, the object of the
testator, in his bequest, is, to compensate for
his deficiencies, during life, with respect to
the ties of kindred, J which affects only
his relations within the prohibited degrees.
The parents or children, moreover, are not
styled relations [Akraba], insomuch that if
a person were to call his father " his RE-
LATION " [Kareeb], he would be considered
as denying his parentage. The reason of
this is that, in common usage, by the term
relation [Kareeb] is understood one related
to a person by means of another : but the
relation of parent and child is personal, and
not by means of another.— In short, according
to Haneefa, the will in question is restricted,
in its operation, to the prohibited relations
of the testator ; whereas, according to the
two disciples, it extends to [all the descend-
* Akraba is the plural of Kareeb, and
signifies (collectively) kindred.
f Here is something like a contradiction •
for it was before said that " the will includes
two or more." This, however, is not to be
taken as excluding any number above two,
but merely as comprehending the dual as
well as any higher number.
% Arab. SiTla Rihm. — It is a technical
term, comprehending, in its application, the
kindred within the prohibited degrees only
ants of] the most ditant prgenitor professing
the faith :— whilst Shafei maintains that it
is confined solely to the testator's father [and
his off spring],
IF a person, having two parternal and two
maternal uncles, make a will in favour of
"his relations " [Akraba], it is in favour of
the paternal unless only, accordingly to
Haneefa, he holding that regard is to be
paid to the order of relationship ;— whereas,
according to the two disciples, all the four
uncles are included, they holding that no
regard is to be paid to the order of relationship
If, on the other hand, the testator have only
one paternal and two maternal uncles, the
half of the legacy, in that case, goes to the
paternal uncle, and the other half to the two
maternal uncles, out of attention to the plural
number, which, in bequests, comprehends
two (as before observed) ; for as, if there
were two paternal uncles, the whole legacy
would go to them, it follows that where there
is one only, ho gets no more than an half, and
the other half goes to the two maternal uncles,
It would be otherwise if the person had ex-
pressed his bequest for "his kinsman ; " *for
in this case the whole legacy would go to tho
paternal uncle, and nothing whatever to the
two maternal uncles ; because, as tho term
kinsman expresses a singular, not a plural
number, the paternal uncle therefore takes
the whole, he being next of kin. — If (in the
case of a bequest to "relations") tho testator
have a paternal undo only [and no maternal
uncles], he is entitled to no more than a
moiety of the third of the estate ; for as, if
there had been two paternal uncles, they
would have had tho whole between them,
one consequently gets only an half.— If, on
the contrary, he have a paternal undo and
aunt, and a maternal uncle and aunt, the
legacy goes in equal shares between the pa-
ternal uncle and aunt, both being related to
the testator within an equal degree of affinity
—and their connexion being of a stronger
nature than that of the maternal uncle or
aunt.— A parternal aunt, moreover, although
she be not entitled to inherit, is nevertheless
capable of succeeding to a legacy, — in the
same manner as holds with respect to a re-
lation who is a slave or an infidel. — dt is to
be observed that, in all these cases, if the
testator have no prohibited relation, the
bequest is null, because it is restricted, in its
operation, to these within the prohibited
degrees, as before noticed.
Or to the A hi of a particular person.-* Ip
a person make a bequest " to the Ahlf of
such as one." it is a bequest to the wife of
the person mentioned, according to Haneefa
* Arab. Zee-Kirrabit.
f The word Ahl, in its most common
acceptation, denotes a people or family, as
Ahl Iran, " the people of Persia. "—Ahl-
nee, "my family."— (This and several sue-
ceeding examples turn entirely upon the
meaning of the terms used by the testator.)
BOOK LIL— CHAP. x
WILLS.
The two disciples, on the contrary, maintain
that the bequest comprehends every indi-
vidual of the family, entitled to maintenance
from that person, such heing (with them)
the common import of the word. The argu-
ment of Haneefa is that Ahl, in its literal
sense, signifies a wife, a proof of which is
drawn from this sentence of the KORAN.
" Moses WALKED WITH HIS Ahl " [wife],
(whence also the common mode of expres-
sion "such a person made taahul [.married]
in a particular city ") ; — and as the word
Ahl, in its literal sense, means a wife, it
follows that whenever it is used absolutely it
must be resolved into its literal sense, which
is the true one.
(Or of the house of particular person.)
— IF a person make a bequest " to the Ahl
of the house of such an one." the father
and grandfather of tho person namod are
included in such bequest, as well as all the
descendants from the remotest progenitor,
on the paternal side, professing the Mussul-
man faith ;— and if a person make a bequest
"to the Ai'l of such an one." it is a bequest
" to the Al of his house," tho term Al
applying to the tribe from which ho is de-
scended.
IP a person make a bequest "to the Ahl
of such a person's Nish [raoo] or Jins "
[generation], — by the former is understood
all those descended from his ancestors in
general,— but by tho latter these only de-
scended from the paternal stock, not from
the maternal, because men are said to bo of
the generation of their fathers, not of their
mothers. —It is otherwise where the term
Kirrabit (affinity) is used ; for that apper-
tains both to father and mother.
Or to the orphans, blind, lame, or widow*,
of a particular race.—Iv a person make a
bequest " to the orphans,— the blind, — the
lame,— or the widow«,~^of the race* of such
an one,"- and the individuals of the race
name can be enumerated, the bequest in-
cludes them all indiscriminately, whether
rich or poor, males or females ; for the exe-
cution of the bequest is practicable in the
instance, because of the ascertainment of
the legatees.— (It is to be observed that,
concerning the exposition of the expression
"if they can be enumerated," here is a
difference of opinion ; for, according to Aboo
Yoosaf, this phrase comprehends'* as many
as can be counted without the aid of written
calculations" whereas Mohammed holds that
it extends no farther than to one hundred,
any greater number being considered as
beyond enumeraton. Some, on the other
hand, allege that the determination of this
point rests entirely with the Kazee, and
decrees pass accordingly). — But if the in-
dividuals of tho race named bo incapable of
enumeration, the poor only are in that case
* Arab. Binnee. It is an irregular plural
from Ibn, "a, son," and expresses a genera,
tion, or trjhe-
included in the bequest, not the rich ; for ifc
[tho bequest] is of a pious nature, and the
object of it (namely, by removing the wants of
best attainable by removing the wants of
the poor, Besides, as the very descriptions
used indicate a degree of want and distress
in the legatee, it is therefore proper to admit
this to have been the testator's meaning. It
is otherwise whore a person makes a bequest
"to the youths (or the virgins) of a parti-
cular race,'* who are innumerable ; for in
such case the bequest is void ; because, as
the description used does not indicate want
the words of the testator cannot be construed
to apply to the poor : neither can the bequest
possiby hold valid in favour of all the in.
dividuals of tho class named, since, as they
are not to be enumerated, it is impracticable
to define them, and a bequest to unknown
legatees is null, — for bequest is an act of en-
dowment, and it is impossible to endow per-
sons unknown. It is to be observed that, in
the case of bequests "to the poor or dis-
tressed," tho legacy must be paid to at least
two paupers, two being tho smallest number
of plurality in bequest, as was before stated.
Or to the race of a particular person. — IF
a person make a bequest "to the race of such
on one," in that case, according to the two
disciples, and also according to the first
opinion of Haneefa, the women of the said
race are included, the plural term Binnee
extending to females as well as males. Ha-
neefa, however, afterwards retracted this
opinion, and maintained the males of the
race only to be included, not the females •
because the term Binnee applies to men
literally, but to women only metaphorically •
and a word must be taken in its literal not
its figurative acceptation. It is otherwise
where " the race of such a person *' is the
proper name of any particular tribe ; for in
that case the bequest includes the women also,
as the term Binnee, in such instance, compre-
hends the females of the tribe along with the
males,— in the same manner as the general
expression Benni. — Adim [the sons of Adam)]
— whence the bequest includes the freedment,
the sworn confederates [Haleefs], the slaves,
and the Mawalat confederates of the tribe
named.
Or to the awlad of a particular race.—Iv
a person make a bequest "to the children
[awlad] of the race of such an one," — -the
males and females have an equal right in
such bequest, as the term awlad comprehends
the whole .
A bequest to the heirs of a particular per-
son is executed agreeably to the laws of in-
heritance.—If a person make a bequest " to
tho heirs of such on one," the legacy is in
that case divided among the heirs of the
person named, in tho manner of an inherit-
ance, a male getting as much as two females;
because there is reason to imagine that the
object of the testator, in using the word
heirs was that the same distinction might
be observed in the partition of he legacies
as obtains in the case of inheritance. '
692
WILLS.
[VOL. IV
Case of a bequest to "the Mawlas" of the
testator. — IF a person make a bequest "to |
his Mawlas,"* and ho have some Mawalas who |
had emancipated him, and others whom he
had emancipated, the bequest is void ; be-
cause the term Mawla partakes of two diffe-
rent meanings, an emancipator, and a f reed-
man, and it cannot be discovered which of
these the testator intended. Neither can
the intention bo construed to comprehend
both ; because a word bearing a double
meaning cannot be used in more than one of
its senses at a time ; and as it is unknown
which sense the testator meant it in, the
legatee is therefore uncertain ; and any un-
certainty concerning the legatee annuls the
bequest. (In several of the books of Shafei
it is recorded that the bequest is construed
in favour of all the Mawlas, both the emanci-
pators and the emancipated, as the term used
applies to both.) It is to be observed that
where the term Mawla is mentioned, in be-
quest, it comprehends every one whom the
testator may have actually emancipated,
whether in health or in sickness ; but not his
Modabbirs or Am-Walids, as their emancipa-
tion does not take place until after his death,
and his bequest is in favour of such only as
are free previous to that event. Aboo Yoosaf
maintains that a Modabbir or Am-Walid is
also included, because, although these be
not free previous to the testator's decease,
still as a cause of freedom has taken place,
and is established in them, they may be said
to have been emancipated— In this bequest
is also included any slave of the tetstator to
whom he may have said, "you are free if I
beat you not before my death" (provided
he did not afterwards beat him) ; becasue the
slave is in this case free before the testa-
tor's decease, and from the time that his
strength and power of beating failed him.
If the testator heve Mawlas whom he had
emancipated, and also the children of those
Mawlas, and likewise Mawlas by Mawalat, f
his freedmen Mawlas and their children are
included in the bequest, but not his Mawlas
by Mawalat. It is recorded from Aboo
Yoosaf, that those last are likewise included,
and that all those there description equally
participate in the bequest, as the term Mawala
comprehends the whole. Mohammed argues
that Mawla is a term which partakes of two
different meanings ; but a word of double
meaning cannot be used in more than one
sense at a time ; and as emancipation is an
absolute and unretractable act, and a con-
tract of Mawalat may be rescinded at plea-
sure, a Mawla by manumission has prece-
dence of a Mawala by Mawlat, and those are
consequently included in preference. But
* Mawla is a term applying either to the
patron or the client (see WILLA) ; and ex-
presses the relation between the emanci-
pated and his emancipator.
t See Vol. Ill, pp. 513 and 517.
the Mawlas of the testator's Mawlas* are not
included in the bequest, which relates only
to the Mawlas of the testator, not to those of
another. It is otherwise with the children
of the testator's Mawlas ; for they stand
related to the testator because of their free-
dom proceeding from him. It is also other-
wise where the testator has no Mawlas by
manumission, nor children of those Mawlas ;
for in that case the Mawlas by Mawalat are
included in the bequest, as the term Mawla
applies to those by manumission, literally,
and to those by Mawalat, metaphorically ;
and whore the literal sense cannot be fol-
lowed, the figurative sense may be adopted.
IF, in the above case, the testator have
only one freedman and several freodmen of
his freedman, the half of the legacy goes to
the freedman, and the remaining half re.
verts to the testator's heirs : and there is
nothing whatever for the freedmon of his
froedman ; for the term Mawla applies lite-
rally to the freedmen of the testator, and
figurativey to the freedmen of those freed-
men ; and it is impossible that the word
should be meant in two flenses, as it cannot
bear, at once, a literal and a figurative
meaning. Neither are the freedmen of the
testator's parents or children included, they
not being his freedmen either actually or
virtually.
CHAPTER V.
OF USUFRUCTUARY WILLS.
An article bequeathed in usufruct*— Iv a
person bequeath the service of his slave, or
the use of his house, either for a definite or
an indefinite period, such bequest is valid;
because as an endowment with usufruct,
either gratuitous or for an equivalent, is
valid during life, it is consequently go after
death ; and also, because men have occasion
to make bequests of this nature as well as
bequests of actual property. So likewise, if
a person bequeath the wagos of his slave, or
the rent of his house, for a definite or in-
definite term, it is valid, for the same reason.
Must be consigned to the legatee. — IN both
cases, moreover, it is necessary to consign
over the house or the slave to the legatee
provided they do not exceed the third of the
property, in order that he may enjoy the
wages or service of the slave, or the rent or
use of the house during the term prescribed,
and afterwards restore it to the heirs
But if it constitute the sole estate, being a
slave, he is possessed by the heirs and legatee
alternately, or being a house, it is held among
them, in their due proportions. — IF the whole
property of the testator consist of the slave
* That is, "the freedmon of his freed-
men," or "the emancipators of his emanci-
pators/! \
BOOK LIL— CHAP. V.]
WILLS.
693
or the house in that case the slave is to be
possessed one day by the legatee, and two by
the heirs, alternately ; but the house, on the
contrary, is to be portioned into three equal
parts, of which one is given to the legatee,
and two to the heirs, — -the legatee being en.
titled to one third, — the estate, and the
heirs to two thirds. The reason of the dis-
tinction here made between a house and a
slave is, that a slave is incapable of being
divided, and therefore an alternate use of
him is established from necessity ; whereas
a house, on the contrary, is capable of divi-
sion ; and as division is the most fair and
equitable mode (since retaliation necessarily
induces a preference of one over the other in
point of time), it ought to be adopted where
it is practicable. Still, however, if the
parties agree to enjoy the house by turns, it
is lawful, as the right rests entirely with
them :— but division is the most equitable
mode.
Nor are the heirs (in the latter instance)
allowed to sell their share.— IT is not in this
case lawful for the heirs to sell the two thirds
of the house which are allotted to them,
This is according to the Zahir Rawayet. It
is recorded from Aboo Yoosaf that such sale
is lawful, because these shares are purely
their own property. The ground on which
the Zahir Eawayet proceeds is, that a right
of residence may eventually be established
to the legatee in the whole house, by so much
other property of the testator being after-
wards discovered as may cause the house to
cojae within a third of his property. Be
sides, the legatee has a controlling power
over the heirs with respect to their portions,
so far as to restrain them from executing
any deed which may injure or affect his
share.
The bequest becomes void on the death of
the legatee.— lv the legatee should die before
the expiration of the limited term of usufruct,
the article bequeathed in usufruct immedi-
ately reverts to the heirs of the testator ; for
the bequest was made with a view that the
legatee might derive a benefit from the tes-
tatore's property ; but if the article were to
devolve to the legatee's heirs, it induces the
consequence of their being entitled to the
use of the testator's property without his
consent, which is contrary to law. If the
legatee die during the testator's life time, the
bequest is void ; because the acceptance of it
is suspended upon the death of the testator,
as has been already explained.
A bequest of the produce of an article dors
not entitle the legatee to the personal use
of the article.— I* a person bequeath the
produce* of his house or of his salave to
Zeyd, in that case some are of opinion that
it is lawful for Zeyd to reside in the said
house himself, or to use the slave for his own
* By the term "produce"; [Arab. Hasil] as
here used, is to be understood the earnings
or hire of a /slave, or the rent of a house, &c.
service, because, an equivalent for the use is
\p fact the same as the use itself, so far as
relates to the accomplishment of the testator's
object. The more approved opinion, how-
ever, is, that it is not lawful ; for a bequest
of produce is a bequest of money, as it»is
that which constitutes produce ; whereas
residence or service is an enjoyment of the
use ; and the effect of these is "different with
respeot to the heirs ; for if any just debt
should afterwards appear against the testator,
it might be repaid by means of a restitution
of the rent by the legatee, which could not
bo done in case of his having had the actual
use.
Nor does a bequest of the use entitle him
to let it to hire.— IT is not lawful for the
usufructuary legatee of a slave or a house to
let them out to hire. Shafei maintains that
he is at full liberty so to do, because, in con-
sequence of the bequest, he becomes (as it
were) proprietor of the article ; and, as such,
he is entitled to transfer it either for a return
or otherwise, usufruct (according to him)
being equivalent to actual property. It is
otherwise with a loan, that being (according
to his tenets) simply a licence [to the use of
a thing], not an investitutre.* The argu-
ments of our doctors upon this point are
twofold. — FIRST, a bequest is an endowment
with property, without a return, referred to
the testator's decease ; and hence the legatee
is not empowered to make a transfer of the
legacy even without a return, because of the
analogy it bears to a loan ; for a loan, ac-
cording to our doctors, is an investiture
with the use of a thing granted in the life-
time of the lender ; and the borrower is
not permitted to hire out the article lent
(hire being an investiture for a return), so
here likewise. — A proof of this is that an
investiture for a return is strong and bind-
ing, whereas investiture without a return is
weak and not binding ; and a person who is
not empowered with respect to the weakest
of the two cannot be empowered with re-
spect to the strongest. Bequest, moreover,
as being a gratuitous deed, is weeak and not
binding.— -Now in gratuitous deeds to volun-
tary agent is at liberty to retract, not the
other party :— but as, in the case of a bequest,
the voluntary agent is the testator, and it is
impossible for him to retract after his de-
cease, retractation is therefore not supposed
possible in this instance ;— yet still as the
bequest is not originally of a forcible and
irrevocable nature, the legatee of usufruct
is of course not at liberty to let the article
to hire, since hire, as being a contract of
exchange, is forcible and irrevocable. SE-
CONDLY, usufruct (according to our doctors)
is not property ; but the investiture of it
for property induces a creation of the cha-
racter of worth in it, necessarily, in order
to establish an equality between the articles
opposed to each other in exchange.
* See Vol. III. p. 478.
694
WILLS.
[VOL. IV
the power of such creation rests only with
one who is a proprietor of usufruct as a
dependent of his right of property, or in
consequence of a contract of exchange, and
who is consequently empowered to make
over the property to another jn the same
manner in which he himself may have held
it. But when a person who acquires the
property of usufruct without any return on
his part, and in an original manner (that
is, not in virtue of its subjection to some-
thing else), afterwards makes it over to
another for a return, it follows that he
makes another proprietor of a thing in a
degree superior to what he himself in effect
was, which is unlawful.
A bequest of the use of a slave does not
entitle the legatee to carry him out of the
place, unless his family reside elsewhere.—
IF a person bequeath the service of his slave
to another, the legateee it not entitled to
carry the slave from the city of the testator ;
— unless his own family reside in another
city, in which case he may carry him thither,
provided he exceed not a third of the tes-
tator's property, The reason of this decision
is, because the bequest must take effect and
be executed in conformity with the intent of
the testator; and in a case where the family
of the legatee reside in the same city with
testator, his intent is that the legatee
shall take the service of the slave there,
without exposing him (the slave) to the
trouble of a journey elsewhere ;— whereas,
on the other hand, where the family of the
legatee reside in a different city, the intent
the testator is that the legatee shall carry
the slave thither in order that the family
may enjoy the use of his service, without
putting them to the trouble of removing
to his [the testator's] city to enjoy this
advantage.
A bequest of a year's product, if the article
exceed a third of the estate, does not entitle
the legatee to a consignment of it.— IF a
person leave one year's product of his slave
or house to another, and he have no other
property except such house or slave, the
legatee in that cane receives one third of a
year's product ; because product, as being
property, is capable of division. If, there-
fore, the legatee require the heirs to make a
division of the house, in order that he may
himself collect the product from his own
share (being a third), it would not be ad-
mi t ted. Aboo Yoosaf, indeed, according to
one report, holds a contrary opinion; for he
argues that the legatee is a partner with the
heirs ; and a partner has a right to demand
a division of the comrtnon property. In
answer to this, however, it may be observed
that this right amongst copartners arises
from their having a property in the article
itself ; whereas the legatee, in the present
instance, has a property only in the product
cf the article, and consequently is not en-
titled demand a division.
In a Sequent of the use of an article to one,
of usufruct is exclusively entitled to the use
during his term—Iv a man bequeath the
person of his slave to Zeyd, and the service
of him to Omar, and the slave exceed not
a third of the testator's estate, his person
belongs to Zeyd, and his service to Omar ;
for as the testator has bequeathed a specific
thing to each legatee respectively, each is
therefore entitled to his own right. As,
moreover (the bequest to the usufructuary
legatee being at any rate valid), if the slave's
person had not been bequeathed, that would
have belonged to the heirs, at the same time
that his services would have belonged to the
legatee ; so in the same manner his services
belong to the legatee of usufruct where the
testator has bequeathed his person to an-
other ; for bequest resembles inheritance,
inasmuch as the right of property to the
article is established after death in both
instances.
A bequest of an article to one, and its con-
tents to another, if connectedly expressed
entitles the second legatee to nothing. — IP a
person bequeath his female a slave to one and
the child in her womb to another, or a ring
to one and the stone of it to another, or a
leathern bag, containing dates, to one, and
the dates to another, and the legacy do not
exceed a third of the estate, — in this case
the first legatee gets his legacy, but the
legatee of the contained article is not en-
titled to any thing. This is where the second
bequest is immediately conducted in the
same sentence with the first. But if they
be mentioned separately (as if the testator
should first say, "I bequeath my female
filave to Zeyd," and then remain silent, and
afterwards say, "I bequeath the child with
which she is pregnant to Amroo"), the effect,
according to Aboo Yoosaf, is the sama as
above mentioned ; whereas Mohammed main-
tains that in this case the female slave goes
to the first legatee, and her child is shared
equally between the two (and the same holds
with respect to the two other cases of the
ring and the bag). The argument of Aboo
Yoosaf is that as the testator first bequeathed
the female slave, and afterwards the child
in her womb, it may be inferred that his
object in the first bequest was the female
slave only, the second bequest being merely
an explanation of his meaning in the first,
—which explanation is approved, whether
it be connected in the same sentence or not ;
for as the bequest is not binding till after
the death of the testator, his explanation
connectedly or unconnectedly is one and the
same ; in the same manner as holds where
a person first bequeaths the person of hi*
slave to one and afterwards the service of
him to another, — in which case the legatee
of the person is not a partner of the legatee
of usufruct with respect to the service
* In other words, "he is at liberty, at
any period after majdng the beq\ est, to alter
tri.— CHAP. VI.]
WILLS.
695
the slave. The argument of Mohammed is
that the word ring comprehends both the
stone and the hoop, and so likewise, the
word female slave comprehends both the
slave herself and also the child in her womb,
— and the word bag includes both the bag
and its contents. With respect, therefore,
to the ring-stone, the child, and the contents
of the bag, there are two different bequests
to two different persons, whore both the
legatees are equal partners in each. Nor
is the second bequest, in this instance, a
retractation of the first, it being, in effect ,
the same as where a person first bequeaths
a ring (for instance) to one, and again be-
queaths the same ring to another, — in which
case the second bequest is not a retractation
of the first, but the two legatees are equal
partners in the ring ; and so hero likewise.
It is different where a man first bequeaths
the person of his slave to one, and then the
property of him to another, as the word
slave does not comprehend the service of
that slave. It is also different whore a second
bequest follows in immediate connexion
with the fir.st ; for in that case tho whole
forms (as it were) one sentence indicating
tho design of tho testator to be that tho
hoop of the right (for instance) shall go to
one, and the stone to the other.
-4 bequest of the fruit of a garden implies
the present fruit only, unless it be expressed
in perpetuity.— lv a person bequeath to any
one "the fruit of his garden ;" in that case
the legatee gets the fruit actually in being
at tho time of the testator's death, not what
may be produced afterwards. If, however,
tho testator say. "I bequeath tho fruit of
my garden perpetually to such an one," the
legatee is in that case entitled to the fruit
then existing, as well as to whatever may
afterwards grow there during his life. But
if, on the other hand, the testator bequeath
the produce of his garden (not the fruit),the
legatee is then entitled to the present pro-
duce and to whatever may be collected from
it until his death, although tho word per-
petual should ot have been expressed ; for
as the word fruit, in its common acceptation,
means a thing actually in being, it cannot
therefore be applied to what is not in being,
unless by an express provision for that pur-
pose :—whereas produce, in the common
acceptation of the term, comprehends not
only what at present exists, but also what
may hereafter exist in succession ; and
therefore its including what may appear
after the testator's decease does not depend
upon the mention of any particular pro-
vision or term.
A bequest of the produce of an animal
implies the existent produce only, in every
instance.— IF a person bequeath the wool of
a sheep, or its milk, or young, and then die,
the legatee is in that case entitled to what-
ever may be extant (for these things) at the
period of the testator's death, and not to
what may afterwards appear notwithstand-
ing the word " perpetual " have been ex.
pressed ; as the term wool, or so forth (as
mentioned above), do not comprehend what
U not actually in being. It is otherwise
with respect to fruit (although that term
also, in its common acceptation, compre-
hends only what is actually existent, and a
bequest of non-existent fruit tho never thetess
valid), because ordained contracts* (such as
of gardening and hire) with respect to non-
existent fruit being good in LAW, it follows
that the word fruit, mentioned With a con-
dition of perpetuity, comprehends also what
is non-existent, and that a bequest of such
is valid. It is otherwise with the wool, the
milk, or tho young of a sheep; for as, with
respect to the non-existent of those articles,
there are no ordained contracts, a bequest of
such is not valid : — contrary to what is
existent ; for these are subjects of a valid
contract (such as Khoola and the like), and
therefore a bequest of them ia likewise
valid.
CHAPTER VI.
OF WILLS MADE BY ZIMM£ES.
.1 church or synagogue, founded during
health, descends to the founder's heirs.- IP a
Jew or a Christian, being in sound health
build a church of a synagogue, and then die,
such building is an inheritance, according to
all our doctors ; because Haneefa holds an
erection of this nature to bo equivalent to a
Wakf, or pious appropriation, which (agree-
able to his tenets) is not absolute,t but
descends to tho heirs of the founder ; and
the two disciples, on tho other hand, hold
all such erections to be sinful in their
nature ; whence they are of no validity [as a
public foundation], and therefore descend to
the heirs [in the same manner as any other
of the founder property].
In the bequest of a house to the purpose of
an infidel plach of worship, it is appropriated
accordingly.— Ii? a Jew or Christian will
that, "after his death his house shall be
converted into a church or synagogue for a
particular set of people/' the bequest is
valid, according to all our doctors and takes
effect to the extent of a third of the testator's
property ; because a bequest has two if.
fercnt characters, the appointment of a
successor, and an actual endowment ; and
the testator is competent to either of these.
Whether any particular legatees be men-
tionedt or otherwise.- IF a Jew or Christian
will that "his house be converted into a
church or synagogue for a sect of people,,'**
without specifying the particular sect, the
bequest is valid, according to Haneefa.
* Ordained contracts are such aik are
authorized and sanctioned by the K&RAKT
and concerning the validity of which, there.*
fore, no doubt can be entertained.
t See Vol. II, p. 231.
WILLS.
[VOL. IV
According to the two disciples, on the con-
trary, it is not valid ; for a deed of that
nature is in reality sinful, although it may
appear pious to the testator ; and a will for
a sinful purpose is null, because the execu-
tion of it would be a confirmation of sin.
The argument of Heaneofa in, that the
founding of churches or synagogues is held,
by these persons, to be an act of^piety ; and
as we are enjoined to leave them to the
exercise of whatever may be agreeable to
their faith, the bequest is therefore lawful,
in conformity with their belief.
OBJECTION. — -What is the difference be-
tween the building a church or synagogue in
the time of health, and the bequeathing it
by will, that Haneefa should hold it inherit-
able in the former instance, and not in the
latter ?
REPLY. — The difference is this : that it is
not the mere erecting (of the church, &c.)
which extinguishes the builder's property,
but the exclusive dedication of the building
to the service of GOD, as in the case of mosque
erected by Mussulmans : and as an infidel
place of worship is not dedicated to GOD,
indisputably, it therefore still remains the
property of the founder, and is consequently
inheritable [in common with his other
effects] ;— whereas a bequest on the con-
trary, is used for the very purpose of de-
stroying a right of property.
THE bequests of Zimmees are of four
kinds.* — I. Those made for purposes held
pious in their belief, but not in the belief
of Mussulmans, such as the building of a
church or a synagogue (as already men-
tioned), or the slaughter of hogs to feed the
poor of their sect ; in which cases Haneefa
holds the bequest to be valid, in conformity
with the faith of the testator, whereas the
two disciples deem it invalid, as being sin-
ful.—II. Those made for purposes held
pious with Mussulmans, but not with ZLm-
mees, such as the erection of a mosque, a
pilgrimage to Mecca, or burning a lamp in
a mosque, in all of which instances the
bequests is invalid in conformity with the
belief the testator, according to all our
doctors ; unless, however, it be made in
favour of some particular persons, in which
case it is valid, as under such circumstance
it is an investiture, the mention of "build-
ing a mosque," or so forth, being considered
merely in the light of a counsel — (in other
words, as if the testator had bequeathed his
property to particular persons, counselling
them therewith to erect a mosque). Ill
Those made for a purpose held pioud both by
Mussulmans and Zimmees, such as burning
a lamp in the holy temple (of Jerusalem),
or waging war against infidel Tartars,f—
* The distinctions here stated apply solely
to bequests for particular purposes.
•f^Koofr at Toork : the name by which the
harfds of robbers who used to infest the
northern provinces of Persia were formerly
distinguished.
which are valid, whether made in favour of
specific persons or not. — -IV.^Those made for
purposes not held pious either by Zimmees
or Mussulmans, such as the support of
singers and dissolute women. — -which are
invalid, as being of a sinful tendency ;—
unless, however, they be made in favour of
particular persons, and then they are valid.
The will of a sensualist or innovator is the
same as of an orthodox Mussulman, unless
he proceed to avowed apostecy — A SEN-
SUALIST,* or an innovator,f provided he
proceed not to open and avowed infidelity,
is, in point of bequest, in the same state
with a perfect believer, because the law
regards only his apparent state, which is
that of a Mussulman ; but if he proceed to
open infidelity, he is then considered as an
apostate ; and with regard to his will there
is a difference of opinion (in the same man-
ner as our doctors have differed withregard
to every other deed of such persons), — Ha-
ncefa holding that in this case his bequest
remains in suspense, and becomes valid
upon his repentance, or null upon his death
or expatriation,) — and the two disciples (on
the contrary) maintaining that it is in every
respect valid.
The will of a female apostate is valid.—
The will of an apostate wcman is valid.
This is approved; because women in such
cases are left to themselves, and not put
death, as in the case of men. J
A Moostamin may bequeath the whole of
his property. — IF a Moostamin bequeath the
whole of his property to a Mussulman or a
Zimmee, it is valid ; for a bequest of the
whole of an estate is deemed illegal only as
it affects the right of the testator's heirs
(whence it is that if they assent such bo-
quest is valid) ; but the heirs of the Moos-
tamin are possessed of no cognizable rights,
they being, as it were, dead, so far as relates
to the Mussulman government, because of
their being in a hostile country. Besides,
the property of a Moostamin is in security
only in virtue of the protection he receives
from the state, which protection he enjoys
in his own right ; not in right of his heirs.
But if he bequeath a part only, the residue
is ransmitted to his heirs. — IP a Moostamin
bequeath part of his property, the bequest
is executed accordingly, and the remainder
is transmitted to his heirs, notwithstanding
they be residents in an hostile country ; such
being the law with respect to Moostamins.
An emancipation, or Tadbeer, granted by
him on his deathbed, takes effect in toto. — IF
a Moostamin, immediately before his death.
* Arab, Sahib-al-hawa. Hawa signifies
the sensual passions, a complete conquest
over which is essential to the chrracter of a
good Mussulman.
t Arab. Sahib- al-biddat. A free-thinker
or secrtary,— Abroacher of new and heterodox
inions in matters of faith.
J See Vol. II. p. 229.
.Boon LU. -(!n±i». VII.J
WILLS.
607
emancipate his slave, or m»<ko him a Modab-
bir in tho Mussulman territory, it it valid,
and tho slave is accordingly free, notwith-
standing his value exceed a third of his
master's estate ; for a bequest beyond a third
of tho property it is deemed illegal only as it
affects tho right of the testator's heirs ; but
a Moostamin's heirs possess no cognizable
right, as was already mentioned.
Any bequest in favour of a Mussulman is
valid.— Iv a Mussulman or Zimmoo make a
will in favour of a Moostamin, it is valid;
for a Moostamin, so long as he resides in
a Mussulman country, is considered in the
light of a Zimmce ; and as the exercise of
generosity and benevolence in favour of such
is therefore allowed to Mussulmans during
life, it is also permitted them to extend such
acts to a period after their death,-" (Tt is
related of Haneefa and Aboo Yoosaf, that
they held wills in favour of Moostanlins to
bo illegal, because of their intention to re.
turn to their own country ; and also, because
the Mussulmans not only allow this, but even
do not suffer them to reside in their domi-
nions more than a year, unless they submit
to the payment of the capitation-tax. — -The
former is, however, the better opinion.)
The bequests of a Zimmee are subject to
the same restrictions with those of a Mussul-
man.— -IP a Zimmoo bequeath more than a
third of his c.stnto to a stranger, or to an
lieir, it is not valid, as being contrary to the
laws of the Mussulmans to which they have
laws to conform with respect to all temporal
concerns.
He, may make a bequest in favour of an
unbeliever of a different srct.—lv a Zimmee
make a will in favour of an infidol of a dif-
ferent persuasion, it is valid, because of tho
analogy of legacies to succession by inherit-
ance, all tho different descriptions of those
persons who disbelieve tho true fuith being
considered as of one class.
Not being a hostile infidel.— Iv a Zimmce,
residing in tho Mussulman territory, make a
will in favour of a hostile inlidel, it is not
valid for as inheritance does not obtain
between those, because of the difference of
country, it follows that a bequest from the
one to the other is of no effect,be quest being
similar to inheritance.
CHAPTER VII.
OF BXBOUTOBS AND THEIR POWERS.
An executor, having accepted his appoint-
ment in presence of the testator, is not after-
wards at liberty to reject it. — JF a person
appoint another his executor, it remains with
that other cither to accept of or decline the
appointment, in the presence of the testator;
because no one has the power of compelling
another to interfere in his concerns. But if
the executor accept his appointment in the
presence of the testator, and afterwards,
either in his absence, or after his death,
decline it, such refusal is not admitted ;
because the testator had placed a reliance on
his consent ; and t her fore, if tho rejection
were allowed of either in his absence c?
after his decease, he would, necessarily be
deceived .
His silence leaves him an option of rejec-
tion.— IF a person appoint another his exe-
cutor, and that other remain silent, without
giving any indication of his acceptance or
refusal, he is in that case at liberty, after
tho death of the testator, to accept on refuse
the appointment, as may be most agreeable
to him.
But any act indicative of his acceptance
binds him to the execution of the office.—
BUT if a person, under such circumstances,
should, immediately after the death of the
testator, dispose of any part of the effects by
sale, then, as an act of this kind is a clear
indication of his acceptance, the executor-
ship becomes obligatory on him,. The sale
moreover, is valid in this instance, notwith-
standing tho executor may not have con.
sidcred himself as such at that time ; for
his executorship (like inheritance, bequest
being a sort of succession as well as inherit*
ance), does not depend on his knowledge ;
and, as being an executor, a sale transacted
by him is valid.
Having rejected the appointment* after the
testators decease, he may still accept of it,
unless the magistrate appoint an executor in
the interim.— IF a person appoint another
his executor, and the person so appointed,
remain silent until the testator's deceass
and then reject the office, and afterwards
declare his acceptance of it, such acceptance
is valid, unless tho Kazoe, during the in*
torim, should have sot him aside, and ap-
pointed another, in consequence of his first
declaration ; because the refusal does not
immediately annul the appointment, that
being injurious to the decease ; and although
the continuance of it be prejudicial and
troublesome to the executor, still he has the
merit of it, which is an equivalent for the
disadvantage, — whereas the injury to the
deceased has nothing to counterbalance it,
The executorship therefore endures in this
case. If, however, tho Kazee set hi m aside,
his decree to that effect is valid, as he pos-
sesses the power of removing an inconveni-
ence, to which executors are frequently sub-
jected, and which may render the continuance
of tho office injurious to them. The Kazee,
therefore, to remedy this, may discharge the
executor from his office, and appoint another
in his room, to act with the estate, thereby
preventing an injury both to te excutor
and tho deceased. If, moreover, the executor,
after being thus dismissed by the Kazee, de-
clare his willingness to undertake the exttu-
torship, such declaration is not admittedor
attended to, as he here assents after his
appointment having been altogether annulled
by the order of the Kazee.
WILLS.
L. iV
Where a slave, a reprobate, or an infidel,
are appointed, the magistrate must nominafe
a proper substitute. — A PERSON may appoint
a slave, reprobate,* or an infidel, to be his
executor ; but it is incumbent on the Kazce
ta annul such appointment, and nominate
another person, because of the disadvan-
tages which would attend the comfirination
of it in either of those instances ; for a
slave could not act but by the power of his
master ; a reprobate may be suspected of
fraud ; and it is not fit such a trust should
be committed to an infidel, as the enmity
which every infidel may be supposed to
entertain towards a Mussulman on the score
of religion will occasion a disregard to his
interest. The dissolution of such appoint-
ments is therefore incumbent on the Kazee,
notwithstanding their original validity.
The appointment of the testator's slave is
invalid, if any of the he.irx have a attained to
maturity, but not otherwise.-* IF a person
appoint his own slave his executor, any of
the heirs being arrived at the age of matu-
rity, it is not valid ; because such heirs may
prevent the slave from the execution of his
office by selling their property in him to
another, and thereby rendering him inca-
pable of acting but by the consent of the
purchaser. If, on the contrary, the heirs be
all infants, the appointment is in that case
valid, according to Haneefa. The two dis-
ciples maintain that it is not valid (and such
is what analogy would suggest) ; because
slavery is incompatible with the exercise of
power ; and also because, in this particular
instance, it would follow that the property
was master over the proprietor, which is
contrary to LAW. The argument of Haneefa
is, that the slave is sane and adult, and
therefore capable of the discharge of such
trust. Neither has any person the power of
prohibiting him from it, because the heirs,
although they be his masters, yet cannot
exert this power, on account of their youth.
As, moreover, the deceased appointed him
to this trust, it may hence be inferred that
his tenderness, and regard for the heirs was
superior, in his opinion, so that of any other.
This appointment, therefore, is valid ; in the
some manner as that of a Mokatib ;— in
other words, if a person appoint his Moka-
tib his executor it is valid ; and so here
likewise.
In case of the executor's incapacity, the
magistrate must give him an assistant.— Iv
an executor be unequal to the execution of
his office, it is incumbent on, the Kazee to
associate another with him , in order that
the duties of the office may be properly exe-
cuted.
But he must not do so on the executor
pleading incapacity, without due examina-
tion.—lv an executor represent to the Kazee
his lability to execute the duties of his
charge, it is requisite, in such case, that
the Kazee, before he attend? to his repre-
sentation, make particular«inquiry into the
truth of it, as complainants of this kind
often assert falsehoods, with a view to alle-
viate their own burden. But if it shall
appear to the Kazee, on due examination
that the executor is utterly incapable of the
office, he must release him, and appoint
another in his place, this being advantage-
ous both to the executor and to the estate.
And if he appear perfectly equal to the
office, he cannot be removed. — IF an executor
be perfectly equal to the discharge of his
office, and trust worthy therein, the Kazee is
not at liberty to dismiss him ; for any per-
son whom the Kazoe may appoint in his
place must be less eligible, as the deceased
had particularly selected him, and p'gnified
his confidence in him. He therefore must
be continued in preference to all others ;
even to the testator's father, notwithstand-
ing his supposed tenderness ; and conse-
quently to others a fortiori.
He cannot be removed on the complaint of
the. heirs, unless his cnljwbitity be ascer-
tained.— Ii*1 all or part of the heirs prefer a
complaint against the r\e<uilor, still tho
Kazeo must not dismiss him immediately,
nor until his guilt bo axrertained, as he acts
under an authority derived from, the de-
ceased. If, however, he prove culpable, it
is incumbent on the Kazee to dismiss him
and appoint another in his place ; for the
deceased nominated him to the office from
supposing him worthy of confidence ; but
upon being found culpable he no longer con-
tinues so, insomuch that if tho testator were
living he would himself discharge him ;
and as he is incapacitated, by death, from HO
doing, the Kazee must take this upon him as
his substitute.
One of two joint executors cannot act with-
out the concurrence of the other.— IF a man
appoint two executors, neither of them is
entitled, according to Haneefa, and Moham-
med, to act without tho other, except in
particular cases, of which an explanation
shall be hereafter given. — Aboo Yoosaf is of
opinion that in all cases cither of them may
act without the other, because, an executor
is endowed with his power of action in
virtue of tho will of the testator ; and as
power of action is a thing sanctioned by the
LAW, and incapable of division,* he enjoys
his power complete and perfect in the same
manner as a complete authority to contract
their infant sister in marriage appertains to
each of her brothers respectively. — (Tho
ground of this is, that exeoutorship is a
succession, which succession cannot be estab-
lished in the executor, unless the authority
of the testator devolve to him in the same
degree in which it had apertained to the
* Arab. Fasik.
peatediy defined.)
(The term has been re-
* That fa, cannot be enjoyed or exercised
partially. .
BOOK LIT.— CHAP.
WILLS.
600
testator, that is, completely and perfectly.)--
The testator's choice, moreover, of the two
to bo his executors is an argument of the
particular attachment of each to his interest,
which attachment is equivalent to the con-
sanguinity of two brothers in the point of
contracting their infant sister in marriage, —
The arguments of Haneefa in support of his
opinion are twofold. — - FIRST, the power of
an executor, being derived from the testator,
is of consequence to be exercised in tho
manner prescribed by him ; and in the case
in question the testator has entrusted this
power to both the executors, on tho condi-
tion of their being united in tho trust, for he
does not expressly assent to their acting
otherwise than jointly, and the above con-
dition is moreover attended with advantage,
as the deliberations of two persons are better
than of one. It is otherwise with two
brothers, in the circumstance of contracting
their infant sister in marriage (as adduced
by Aboo Yoosaf), sineo the canso of such
authority being vested in thorn is relation-
ship, a cause wliioh exists equally in each.
The contracting jn marriage, moreover, is
a right of the infant, resting upon her
guardian (insomuch that if the infant re-
quire hor guardian to contract her to any
person, being her equal, for whom she has a
liking, he must comply), whereas, in the
case here considered, the acting [with the
estate] is tho right of the executor himself
not of another resting upon him. In the
case of contracting the infant in marriage,
therefore, if one of the two brothers so con-
tract her, he merely discharges a duty in-
cumbent on tho other brother, and his act is
therefore valid ; whereas, in the case of exo.
cutorship, if one of the two act alone, ho
exercise a right appertaining to tho other,
and his so doing is therefore invalid ;— in
the same manner as where two persons owe
a sum of money to one, in which case it
would be perfectly lawful for either of them
to discharge the whole debt, whereas, sup-
posing one man to owe a sum of money to
two others, it would not be lawful for him to
pay the whole to either of them.
Except in suck matters as require imme-
diate execution,— THE case excoptod by
Haneefa and Mohammed, in which they
hold the acts of either executor, singly, to
be valid, are such as require immediate exe-
cution. This it is lawful for cither exe-
cutor, singly, to disbusro the funeral
charges, as a delay in this might occasion
the body to become offensive ; whence it is
that a similar power is vested in the neigh-
bours. In the same manner, either of the
executors, singly, may purchase victuals or
clothes for the infant children of the testator,
this being a matter of urgency, and which
admits of no delay.
Or which are of an incumbent nature.—
So likewise, it is lawful for either of the
executor to restore a deposit, and usurped
article, or a thing purchased by the testator
u.nder an invalid contract. In preserving
the estate of the testator, also, and in dis-
charging his debts, the act of either executor
is lawful independent of tho other. For
none of these are considered as an exercise
of power, but merely the performance of a
duty, — insomuch that the depositor has him-
self a right to seize and carry away his
deposit, if ho find it among the effects T>f
the deceased, and the creditor has a similar
right with regard to his debt ;— and it is,
moreover, the duty of every one into whose
hands property may fall, to attend to the
preservation of it, whence this comes under
the description of aid and assistance, not of
nn exercise of power ;— neither do any of
these acts require thought or consideration.
Either of the executors has also a right
singly to discharge a legacy, or emancipate
a slave, if directed by the testator, because
such deeds require no thought or considera-
tion.
Or in which the interest or advantage
of the estate are concerned. — -IN the same
manner, either of them may institute a suit
in claim of the rights of tho testator because
a conjunction of both in so doing would be
impracticable, since, if they wore to do it
at one and the same time in the assembly of
the Kazoo, they must occasion noise and
confusion (whence it is that only one of two
agents for litigation is allowed to plead at
a time). Tho acceptance for a gift for an
infant is likewise an act which neither may
perform singly ; for in case of delay there is
a possibility of the gift being rendered null
by the death of the donor previous to the
seizure. These acts,, moreover, being per-
mitted to a mother and nurse, is a proof that
they are not exertions of power. It is like-
wise permitted to any of the executors,
singly, to sell goods where there is an appre-
hension of their spoiling, as in th case of
fruit, and the like : and also to collect to-
gether and preserve the scattered property
of the testator, as delay might occasion tho
destruction of it ; and such permission is,
moreover, given to every person into whose
hands property may fall, whence it may be
inferred that this is not an oxertionof power
(It is recorded, in the Jama Sagheer, that
none of the executors, whore there are more
than one, has singly the power of selling
goods, or receiving payment of debts, be-
cause these are exercises of power which
they must perform jointly, in conformity
with the will and intention of the testator.)
Case of a testator appointing different
executors at different times. — -IF a person
appoint two executors in a separate manner
(as if he should first say to tho one " I have
appointed you my executor," and again, at
a different period, to the other " I have
appointed you my executor'1), some allege
that in this case each of them has indivi.
dually a power of exorcising the functions
of his appointment, without consulting the
other, in the same manner as two agents,
where they are appointed by different com-
missions j — the reason of which is that h«
700
WILLS.
IV
testator, in appointing the two separately,
indicates his assent each acting from his
own judgment, without the other's asistance,
or advice. Others, again, say that con-
earning this case also a disagreement subsists
between Kaneefa and Mohammad on one
aids, and Aboo Yoosaf on the other ; because
ft will is not established until the death of
the testator ; and at that time both are
executors together, notwithstanding they
had been appointed separately. It is other
wise with two agents appointed under dif-
ferent commissions ; for the Appointment of
each of those still continues distinct and
separate, as settled by the constituent.
In ease of the death of a joint executor,
the magistrate must appoint a substitute.— 1v
one of two executors die, it is incumbent on
the Kazee to appoint another in his room.
This is the opinion of Ilaneefa and Moham-
med ;beoause, according to their doctrine,
the remaining executor has not, of himself,
power to act on everv occasion, and ho
interest of the deceased therefore requires
the appointment of another to operate with
him ; and it is also the opinion of Aboo
Yooaaf, because, although the remaining
executor be (according to him) empowered
to act of himself • still it behoves the Kazee
to appoint another his companion ; for the
design of the testator evidently as, to leave
two successors the management of his con-
cerns ; and as this may be fulfilled by the
appointment of a substitute for him who
dies, one must be appointed accordingly.
Unless the deceased have himself nomi-
nated his successor. — IF the deceased exe-
cutor have appointed the living executor to
act for him, it is in that case lawful for the
latter (according to the Zahir Rawayet) to
act alone, nor is it incumbent on the Kazee
to appoint another in the room of the
deceased ; because here the judgment of the
deceased executor virtually subsists in the
living one, as it were, by succession. — (There
is a tradition of Haneefa having contradicted
this doctrine, because of its repugnance to
the object of the testator, namely, the agency
of two persons : in opposition to the case
where a dying executor appoints some other
person to succeed him ; for such appointment
is valid, because of its being attended with
the advantage of the judgment of two distinct
persons, as was intended by the tastator.)
The executor of an ertcvtor is his substitn'e
in efficfi. — IF an executor, previous to his
death, appoint another person his executor,
in that case the person so appointed is en-
titled to act as executor, both to him, and
also to the person to whose affairs his imme-
diate testaor had acted as executor. This
is according to our doctors. Shafei maintains
that the person so appointed is not entitled
to act as executor to the first deceased, be-
cause^f the analogy his appointment bears
to *uat of an agent ; in other words, if a
'person, during his life time, appoint an agent
to act for him. that agent is not permitted
to delegate hu powers to another without
having previously obtained the eonsent of
his constituent.- (The ground of analogy
between these two cases is, that in the same
mnnncr ns the constituent is supposed to
place a reliance on the agent, and on him
ouly, so also the testator may be supposed
to act with regard to the executor.) The
arguments of our doctors upon this point nro
twofold.— FIRST, an executor derives hi*
power from the testator : and it is therefore
lawful for him to appoint an executor to suc-
ceod him ; — in the same manner as in the
case of a grandfather ; in other words, a
lather has the power of bestowing his child
in marriage, which devolves upon his father
after his death ; and the grandfather has in
such case the power of appointing an agent
lor the execution of the child's marriage ;
and so likewise, it is lawful for an executor
to appoint another executor, as tho power
appertaining to tho testator devolve* upon
Jus executor, in the same manner a.s a father's
right to dispose of his child in marriage
devolre* npon tho grand father. Art, more-
over, the grandfather is the father's subnU-
tuto with regard to the power which devolves
5° aim. so in the same manner the executor
is tho substitute of the tostator ; because the
nomination of ftn executor is, in effect, an
appointment, by the testator, of a substitute
with respect to the matters in which he is
mmslf empowered; and as the executor, at
the time of his death, possessed a power with
respect to both estates (his own, and alao
that of his testator), it follows that the
second executor (that is, the one appointed
by him) is his substitute with respect to both
estates also.— -SECONDLY, as tho testator had
recourse to tho assistance of tho executor,
notwithstanding he knew there was a possi-
bility of his dying in the interim, and
thereby leaving his object unaccomplished,
it may be inferred that his intention was
that his, executor should in such case appoint
another. It is otherwise with an agont ; for
he is not at liberty to appoint any other
person his agent without tho consent of his
constituent ; because, as the latter is still
living, and consequently has it in his power
to accomplish his object himself, it is there-
fore not to be supposed that he will consent
to his agent appointing another ago tit undnr-
him.
An executor is entitled to possess himself
of the portions of infant and absent adult
heirs, on their behalf. — IF an executor, the
legatees being present, divide off the estate
of tho testator from the legacies, on behalf
of his heirs who are infants, or adult
absentee, and take possession of their por.
tions, it is lawful ; for an heir is successor to
the deceased ; and as an executor is also a
successor to him, he is of course a competent
litigant on bohalf of infant or absent heirs,
and may, of consequence, mako a divisiont
and possess himself of their portions on their
behalf. — insomuch that if those portions
were to perish in his hands, still they are
not at liberty to participate with, the legatees
BOOK LIL- CHAP. VII.]
WILLS.
701
in what remained to them after such divi-
sion.
But not of the. legacies of infant or absent
legatees. — IF, on the contrary, an cxcutor,
the heirs being adult and present, divide of
the legacies from the estate, and take pos-
session of them on behalf of infant or absent
legatees, it is unlawful ; for a legatees not a
.successor to the deceased in every respect,
he being constituted a proprietor by a new
and supervenient cause ; and as, therefore,
the executor does not stand as litigant on his
behalf, his taking his [the legatee's] portion
is not valid, — insomuch that if the legacy
were to perish in his [the executor's] hands,
the legatee would be entitled to take a third
of whatever had remained to the heirs.
Neither as any compensation due from the
executor in this instance ; because an
executor is a trustee : and as the power of
conserving the effects of the testator is lodged
in him, the case is therefore the same as if
the loss had happened previous to the divi-
sion of the olTccts.
A legacy op pro printed to pilgrimage, if
lost, mufttJte repaired, to tJte extent of a third
of the estate. - -Jf a person bequeath a sum
loir the performance of a pilgrimage to
Mecca, and then die, and the executor
tlivide off the said sum from the heirs, and
tako possession of it, and it bo afterwards
lost or destroyed, either in his charge, of in
that of the person whom he hud appointed
for the performance of the pilgrimage, in
that case, aecording to Hancefa, a third of
the remaining property of the deeeased must
bo appropriated for the pilgrimage. Aboo
YooBuf, on the other hand, holds that if the
sum thus lost have boen originally equiva-
lent to a third of the property, nothing is
afterwards to be taken from the heirs ; but
that if it was less, the deficiency must be
applied to the purpose of tho pilgrimage-.
Mohammed, on the contrary, is of opinion
that in neither easo is tho executor to take
any thing from the heirs : because the setting
aside of a particular sura, for the perform-
ance of the pilgrimage, WHS the undoubted
right of the testator ; and as, if ho had him-
self set aside the sum for that purpose, and
it had afterwards been lost or destroyed,
nothing further would have been required,
and the legacy would have been void, it is in
tho same manner void where tho sum was
set aside by tho executor, as ho acts for, and
stand* in tho place of, the deceased . The
argument of Aboo Yoosaf, in support of his
opinion, is that a third of tho whole property
is a fund for the execution of wills, to which
extent only they are to bo executed, and no
farther. Tho arguments of llaneefa, in sup-
port of his opinion on this point, are twofold.
FIRST, the performance of the pilgrimage
was tho object of tho testator, not the sotting
aside a sum for that purpose; and therefore
the appropriation or delivery of the money,
without the accomplishment of the object, is
of no consideration, it being, in effect, the
name as if the sum had been lost previous
to the division,— in which ease a third of the
remainder would be appropriated to tho pil-
grimage. SECONDLY, the division, with
respect to the legacy, is not perfect and com-
plete until the portion bequeathed for the
purpose of pilgrUnag bo expended there upon
as there is no person to take possession of it?*
Where, therefore, this sum is not expended
in tho performance of pilgrimage, the parti-
tion is incomplete, and the case is (conse-
quently) tho same as if the sum had been
lost or destroyed before the partition.
A legacy, after being divided off by the
magistrate, descends to the legattee's heirs in
case of his decease. — IF a person bequeath a
third of one thousand dirms to another who
is at that time absent, and tho heirs consign
the said sum to the Kazee, in order to divide
and set apart the share of the absent legatee,
tho division thus made by the Kazee is valid
because of tho original validity of the will,
insomuch that if tho absentee should after,
wards die, previous to his having declared
his acceptance, the legacy nevertheless de-
volves to his heirs. The* office of Kazee,
moreover, is instituted with a view to the
benefit of mankind, that he may attend to
tho conservation of their rights, especially
with respect to such as are dead or absent/-
and as among these attentions to the rights
of mankind is tho setting aside and taking
posession of the portions of absentees, such
acts by him on behalf of an absentee aro
valid of course:— insomuch that if such por-
tion were destroyed in his possession and
the legatee should afterwards appear, still
he would have no claim upon the heirs.
An executor may sell a slave of the estate,
for the discharge, of the debts upon, it, in
absence of the creditors. — IT is lawful for an
executor, in order to discharge tho debts of
the decascd, to sell a slave for a suitable
price, in the absence of the creditors ; for as
the testator might have done so during his
lifetime the executor, as his representative,
is entitled to do the snme. The ground on
which this proceeds is, that tho right of the
creditors to the effects of tho deceased lies,
not in tho things themselves but in their
worth ; and the worth of the slave is not
••inmhlatod by tho sale, as the price (which
is in reality the worth) still remains.
Unless the slave be involved in debt. — IT is
otherwise with respect to an indebted slave ;
for the sale of such in the absence of the
creditors is not valid, as their right lies in
tho person of tho slave, they having a claim
to the earnings of his labour, which would
be annihilated by tho sale of him,
An executor, having sold and received the
price of an article which afterwards proves
to be. the property of another, is accountable
to the purchaser for the price he had ao re*
ceived.~~lv a person appoint another hia
executor, directing him, after his decease, to
* In other words, there is no individual
le&ntee..
702
WILLS,
[VOL. IV
sell a slave, and bestow the price in charity,
and the executor accordingly sell the slave
and take possession of the price, and it bo
afterwards lost or destroyed with him, and
the slave prove to be the property of another
person, he (the executor) is accountable to
the purchaser for the price, agreeably to the
laws of sale ; and he is entitled to take an
equivalent from the effect of the deceased,
being, as it were, an agent on his behalf.
This indemnification, according to Hancefa,
he is to take from the whole of the estate at
large, and such is the Zahir Rawayet. It is
recorded from Mohammed, on the contrary,
that ho is to indemnify himself from the
third of the effects as the instructions of
the deceased were in the nature of a will ;
and the third of the property is the fund for
the execution of a will. The ground of the
doctrine of the Zahir Kawayet is, that as
the executor, in the sale of the slave, was
deceived by the testator, the restitution
made by him to the purchaser is therefore
a debt due to him from the testator ; and
the debts are discharged from the whole of
the estate, not from the third. It would be
otherwise if the Kazee, or his Ameen, should
sell the slave, and he afterwards prove the
property of another ; for in this case the
obligations of the sale do not rest upon
those officers, but the purchaser comes at
unco upon the estate for an equivalent to the
price lost or destroyed as above ; since other-
wise the door of magistracy would be shut,
and the rights of mankind consequently
injured, as no man will undertake the office
of Kazee unless he be exempted from re-
sponsibility. It is to be observed that what
is now advanced, that "the executor is to
take an equivalent from the effects of the
deceased ;" proceeds on the supposition of
these being sufficient to answer this pur-
pose ; for if they be inadequate to it, the
executor is entitled to an indemnification
only in the greatest possible degree ; and if
the deceased should have no effects whatever,
the executor (like any other creditor) has no
claim for indemnification.
But if this have been lost, he may reim-
burse himself from the person to whom the
article had fallen by inheritance. — IF an
executor sell a slave which had fallen to the
share of a child of the deceased, and take
possession of the price, and it bo afterwards
lost in his hands, and the slave prove the
property of another person, the purchaser
has in that ease a claim for restitution from
the executor, who i« entitled to indemnify
himself from the share of the child in whoso
behalf he acted ;— and the child is entitled
to an equivalent from the shares of the
other heirs ; for upon the slave proving the
property of another person, the distribution
of inheritance, as at first executed, is an-
nulled, the ease being, in fact, the same as if
no^<ach slave had ever existed, or been
accounted upon as part of the estate.
An executor may accept a transfer for a
$ety due his infant ward. — IF a person in-
debtcd to an orphan like a transfer on some
other person, and the executor (the guardian
of the orphan) accept the same, such accept-
ance is approved, provided it be for the inte-
rest of the orphan, because of the person on
whom the transfer is made being richer (for
instance) than the transferrer, and also a
man of probity ; for the power of acting is
vested in the executor, merely that he may
employ it for the interest of the orphan :— -
but if the transferrer be richer than the
other, the acceptance is not approved, as
being, in its tendency, prejudicial to the
orphan.
Or sell or purchase moveables on his
account. — IT is lawful for an executor to
sell or purchase moveables, on account of
the orphan under his charge, either for an
equivalent, or at such a rate as to occasion
an inconsiderable loss, — but not at such a
rate as to make the loss great and apparent;
because, the appointment of an executor
being for the benefit of the orphan, he must
avoid losses in as great a degree as possible;
— but with respect to an inconsiderable loss,
as in the commerce of the world it is often
unavoidable, it is therefore allowed to him
to incur it, since otherwise a door would be
shut to the business of purchase and sale.
An executor, in giving a bill of sale, must
not insert his power as an executor in it, but
must give a separate paper to that effect, out
of caution ; for if the latter also wore in -
sorted, it might happen that the witness to
the sale might set his name to the bottom of
the instrument without examination, which
would implicate a false testimony, since
with the executorship he has no concern.
Some, moreover, have asserted that the
attestation of the witness ought to run in
this manner — " Sold by Zeyd the son of
Omar," and not "by Zeyd te executor of
such a person :" — but others maintain that
this is immaterial, and that the latter mode
may with propriety be adopted, as executor-
ship in a matter of notoriety.
He may also sell moveable s on account of
an absent adult heir. — AN executor has the
power of selling every species of property
belonging to an adult absent heir, excepting
such as immoveable: — -for as a father is
authorized to sell the moveable property of
his adult absent son, but not such as is in.
moveable, his guardian (the executor) has
the same power. The ground of this is that
the sale of moveable property is a species of
conservation, as articles of that description
are liable to decay, and the price is much
more easily preserved than the article itself.
With respect, on the contrary, immoveable
property, it is in a state of conservation in
its own nature ; whence it is ulawful to sell
it,— unless, however, it be evident that it
will otherwise perish or be lost, in which
case the sale of it is allowed.
He cannot trade with his ward's portion.—
IT is not lawful for an executor to trade
with the property of the orphan ; for the
conservation of it, merely , is oommjtte4 to,
feoo Lit— CflAf. Vllt]
WILLS.
him, not the power of trading with it, —
according to what is mentioned in the
Awzah upon this subject.
He may sell moveable property on account
of the infant or absent adult brother of the the
testator. — ACCORDING to Mohammed and
Aboo Yoosaf, the executor of a brother,
with respect to an infant brother, or one of
mature age, who is absent, stands in the
same predicament as the executor of a
father with respect to his adult absent son
(in other words, he is empowered to sell
the moveable property of the orphan or ab-
Hentee) ; and so likewise of an executor
appointed by the mother or uncle ; for as the
mother and uncle are permitted to interfere
in the management of the property so far
relates to its preservation, so also is the
executor who represents them.
The power of a father's execuctor precedes
that of the grand -father.— THE power of the
father's executor, in the management of the
property of his orphans, is superior to, and
precedes that of the grandfather. Shaikh is
of opinion that in this respect the grand-
father has the superior power ; because the
LAW has ordained him to be the rcprcsont-
tive of the father, where the latter has-
i-cased to exist,— whence it in that (fulling
the father) tho grandfather inherits to his
grandson. The argument of our doctors I'M,
that as, in consequence of tho will, the
authority of the father devolves upon his
executor, the executor's authority is there-
fore that of the father, in effect,— and con-
sequently the father's executor precedes to
grandfather, in tho samo manner as the
father himself would. The ground of this is,
that as tho father, notwithstanding tho ex.
istenuo of the grandfather, appointed another,
to act for his children, it may bo honco in-
ferred that ho considered such appointment
more beneficial to them than if they had been
loft to tho management of tho grandfather.
If there h* wo executor, the. grandfather ».v
the father^ representative. — I* » father die
without appointing an executor, tho grand-
father represents tho father ; * because a
grandfather Is most nearly related to the
children of his son, and most interested in
their welfare ;— whence it is that the grand-
father is empowered to contract the infant
wards in marriage, in preference to the
father's executor,— notwithstanding tho
latter take precedence of him in point of
managing and acting with the property, for,
the reasons already assigned.
CHAPTER VIII.
OF EVIDENCE WITH RESPECT TO WILLS.
The evidence of two executors to the ap-
pointment of a third is not valid unless he
claim or admit it.-^lv two executors give
* Literally, "is in the stead of," or "stands
in the place o£"
evidence that the deceased had associated a
third person with them, and that person deny
Iris having done HO, the evidence of tho ex-
ecutors is of no effect; because their assertion
having a tendency to their own advantage,
in the case it will afford thorn from part pf
their labour, lays thorn open to suspicion.
If, on the contrary, tho third person claim
or admit of the executorship, their evidence
is valid, on n favourable construction, Ana-
logy would suggest that here also the evi-
dence is null, in tho same manner as in the
former instance, and for tho same reasons.
The ground of a more favourable construction,
in this particular, is that as tho Kazee has
tho power of either appointing an executor
at the first, or associating a third person (by
that person's consent) with tho two executors,
without any testimony on their part, it
follows that their testimony merely prevents
the Kaxee from tho trouble of nomination,
by rendering it unnecessary for him to seek
out and name a proper person to assist in
the executor-ship ;— tho person still, however,
holding his office in virtue of tho Kazoo's
nomination.
The evidence of orphans to (he appoint*
went of an exn-ittor i.t not admitted if fa
deny if.— IF two orphans givo evidence that
their deceased father had appointed a parti-
cular person his executor, and tho person
mentioned deny tho same, their evidence is
not, credible, being liable to a suspicion in.
the advantages they would draw from tho
labours of a person exerted towards the pre-
servation of their property.
The testimony of executors with respect to
properly, on he half of an infant.— IF two
executors give evidence, on behalf of an in.
fa nt heir (their ward) concerning property of
the deceased, or of any other person, it is Of
no effect; because their testimony merely toiida
to prove their right to tho management of
such property.
Or of an absent ndull, M not admitted.—
lr two executors givo evidence, on behalf of
an adult heir, concerning property of tho
deceased, it is of no effects ; but it is valid
concerning property appertaining to any
other person. This is tho doctrine of Haueefa.
Tho two disciples are of opinion that in both
cases the evidence is valid, because it is not
liable in either of thorn to any suspicion, as
the power of an executor over the property
ceases after the hoir attains the maturity.
The argument of Haneefa is, that as oxeoul
tors have the power of conservation and also
of selling tho moveable property of an adult
heir in this absence, it follows that their
evidence, in favour of an adult heir, con-
c em ing any part of the deceased's estate, is
not altogether free from suspicion. It is
otherwise with respect to their evidence, in
behalf of an adult heir, concerning and other
property, for over that the executors Cannot
possess any authority, as the deceased ^bn.
stituted them his substitutes with respect tc
his own estate only, not with respect to the
property of others.
HERMAPHRODITES
L. IV
The mutual evidecne of parties, on behalf
of each other, to debts due to each from an
estate is valid ; but not their evidence to
legacies. — IF two persons boar evidene to a
debt of one thousand dirrns, duo from a
person deceased to Omar and Zeyd, and
Pmar and Zeyd give a similar evidence in
favour of these two, the evidence on both
parts is valid. If, on the contrary, each of
the parties in the same xnmiicr give evidence
that legacies had been loft by the deceased to
the other, their attestations are of no effect.
This is the doctrine of Haneefa and Moham-
med. Aboo Yoosaf maintains that in neither
ease are these evidences valid; and such
also (according to the relation of Khasaf ) is
the opinion of Hanoefa. There is also a
tradition of Aboo Yoosaf having concurred
in the opinion of Mohammed. The reason*
urged in support the validity of the ovi-
denoe, in the case of debt, is that debt re-
lates solely to the person; and a-t the person
admits a great variety of rights, the evi-
dence of both parties is therefore admitted.
—Neither does it follow, in this case, that
cither party is to partake of what may be
obtained in payment by the other, HO as to
cause the evidence of this party to bo a m°ro
establishment of their own right of partici-
pation,— insomuch that if a stranger were to
pay, to one of tho porties, of his own an-
cord, tho debt alleged to bo duo to that
party, still tho other party is not at liberty
to claim any share in such payment. Tho
reasons, on the other hand, against tho vali-
dity of the evidence, in this instance, arc that
as the death [of the debtor] occasions tho
relation to shift from the person to tho pro-
perty, since in consequence of the down so
the person no longer remains (insoraiK-h that
if any ono party wero to obtain payment of
his right from the estate of tho deceased tho
other party participates with thorn therein,
provided the estate suffice for tho dischargo
of tho debts of both), it follows that the
evidence of each, respectively, in behalf of
the other, tends to establish a right of par-
ticipation in whatever payment that other
may obtain in consequence ; and accord,
ingly, the testimony is here liable to suspi-
cion. It is otherwise where the debtor is
living ; for in that case the testimoney of each
party [of creditors] on behalf of the other
is admitted ; since as the debt, at that time,
rests upon his person, not upon his property
(the former still continuing existent), a par.
tioipation, therefore, is not established in
this instance.
Unless each legacy, respectively, consist
of a slave. — 1» two persons give evidence
that a particular person had bequeathed his
female slave in a legacy to two others, and
the two others give evidence that the same
person had bequeathed a male slave to those
two, both evidences are valid ; for as their
testimony does not in any respect tend to
establish a participation, it is terefore liable
to no suspicion, and must be admitted ac-
cordingly.
A mutual evidence nf Ihix nature is void
where it involves a right of participation
in the witnesses. — IP two persons give evi-
dence that a particular person had be-
queathed the third of his property to Zeyd
and Amroo, — and Zeyd and Amroo, on tho
other hand, givo evidence that the same
person had bequeathed a third of his pro.
porty to these two, tho evidence of both
parties is void and of no effect (and so like-
wise if the two were to givo evidence that
the person had bequeathed his male slave to
Zoyd and Amroo, — -and Zeyd and Amroo, on
the other hand, give evidence that the said
person had bequeathed his female slave to
those two) ;— because as tho evidence on
each part tends, in those instances, to estab-
lish a right of participation, it is therefore
not altogether free from suspicion.
BOOK Mil
OJj1 HBUMAPHUODITJSS.
Section I.
Of who are Hermaphrodite.?.
ll< rm'ii)krt>dilcs arc cither m'tlc, or f finite.
-A KIIOONUA, or hermaphrodite, is a per-
son possessed of the parts of generation of
butli a mm and a woman. If, therefore,
Much person discharge urine from tho malo
mom bur ho* is accounted a male, or if from
tho fomiU* momber, a female ;— because it is
so recorded in tho traditions, and likewise
reported from Aloo ; and also, bc<Muse. tho
riroumstanco of tho urino being discharged
from cither member in particular, donot.tM
that member to bo tho original, and tho
other merely a defect. If, on tho contrary,
tho person discharge tho urine from both
me.mbcrs, regard is p:iid to that from whieh
it first proceeds, an this denotes that member
to bo the original. If, on tho other hand,
the person discharge his urino from botii
members equally (that is, at ono and tho
same time) ho is a Khoonsamoosh'kil, or equi-
vocal hermaphrodite, according to Itaneofa.
Or ambiguous. — NOB is any regard paid
to tho superior or inferior quantity of tho
urino in this instance, because a superiority
of discharge from either member does not
denote that member to bo the primary, since
this circumstance arises merely from the
urinary passage in the ono being wider than
in the other. The two disciples maintain
that regard must in this case be paid to the
comparative quantity of urine ; and oonse-
* The gender of an absolute hermaphro-
dite is dubious. The translator follows the
Arabic text in expending it throughout in
the masculine, that being the moat generally
applicable.
BOOK LI II.]
HERMAPHRODITES.
705
quontly, that the sex is dotei. mined accord-
ing to the member from which the greatest
quantity proceeds ; because this denotes
that member to be the superior and original
and also, because the greater quantity is, in
effect of law, the whole. From whichever
member, therefore, the principal quantity
of urine is discharged, that member is
accounted the superior. If, however, the
urine proceed from both passages alike (that
is, at the same time, and in equal quantity),
the person is accounted an equivocal her-
maphrodite, according to all our doctors, as
in this case neither member possesses any
superiority over the other. — What is here
advanced applies solely to hermaphrodites
not yet arrived at the ago of maturity ; —for
upon an hermaphrodite attaining to matu-
rity, if his board grow, or he have con-
nexion with a woman, or nocturnal emis-
sions, or his breasts appear as those of a
man, he is accounted a male, those being
indisputable tokens of manhood ;— but if the
breasts swell like those of a woman, or the
menstrual discharge appear, or pregnancy,
or carnal connexion with a man, the herma-
phrodite is accounted a female, such being
the tokens of womanhood. If, on the con-
trary, no distinguishing tokens of either sex
appear, or the tokens of both (such as a
beard, with the breast of a woman), the
person is an equivocal hermaphrodite.
Section II.
Of the Laws respecting equivocal Herma-
phrodites.
An equivocal hermaphrodite. — IT is a rule
with respect to equivocal hermaphrodites,
that they are required to observe all the
more comprehensive points of the spiritual
law, but not those concerning the propriety
of which [in regard to them] any doubt
exists.
Must take his station, in public prayers, be-
tween the men and the women.— Ay equivocal
hermaphrodite, in standing behind the jlmam
for the purpose of prayer, must take his
station immediately after the man and
before the woman, as it is possible that he
may be a man, and it is also possible that ho
may be a woman. If, therefore, ho chance
to stand among the women, he must recite
the prayers repeatedly, for as it is possible
he may be a man they would otherwise bo
nuagatory. If, on the contrary, he stand
among the men, his prayers are valid ; but
the men who are next to him are to recite
their prayers repeatedly, out of caution, as
it is possible that he may be a female.
Observing (in other respects) the customs
of women.— IT is laudable in an equivocal
hermaphrodite to cover his head, during
prayer, with the skirt of his garment, and
also to sit in the posture of women ; for if
he be a man, this is merely a deviation from
custom, which does not imply any positive
illegality ; but if he be a female, his neglect-
ing so to d / would induce an abomination,
it being indispensably incumbent on women
*to be covered upon that occasion. It is also
laudable in him, if he bo without a garment,
to recite the prayers repeatedly ; but still
the prayers are lawful although ho should
neglect so to do. It is, moreover, abomi-
nable in him to wear silk or jewels.
He must not appear naked before man or
woman, or travel along with either, except a
relation ; and he must be circumcised by a slave
purchased for that purpose* — -IT is abomina-
ble in an equivocal hermaphrodite to appear
naked before either man or women, or to be
in retirement with either man or woman
except his prohibited relation. In the samo
manner, it is abominable in him to journey
in company with a man other than his pro-
hibited relation, — or with a woman notwith-
standing sho be a prohibited relation, as it is
not lawful for two women to travel together,
although they be relations. It is also abomi-
nable that he be circumcised by either a man
or a woman ; and therefore, to perform this
ceremony, a female salve must be purchased
at his expense ;— or, if he be destitute of
property, the price of such slave must be
advanced to him, by way of loan, from the
public treasury, with which he may pur-
chase, her for the purpose of circumcising
him ; and having so done, sho is to be sold,
and her price paid into the treasury,as he
has then no farther occasion for her.
Hides to be observed by him during a
pilgrimage. — IF an equivocal hermaphrodite
undertake a pilgrimage during his adoles-
cence (that is, when nearly arrived at matu-
rity), Aboo Yoosaf declares he is uncertain
which modes of dress is most proper for him
to adopt ; for if he be a male, his wearing a
seamed garment is abominable ; and he
bo a female, it is abominable to wear any
thing else. Mohammed, however, says that
he ought to wear a seamed garment, in the
same manner as woman ; because it is still
more abominable for a woman to neglect
this during pilgrimage than for a man to
wear it.
Divorce or emancipationf suspended upon
the circumstance of sex, are not determined,
in relation to an hermaphrodite. — If a man
suspend the emancipation of his slave, or the
divorce of his wife, upon the circumstance
of her producing "a male child," and she
be delivered of an hermaphrodite child the
divorce or emancipation do not take place
until the sex or condition of the child be
fully ascertained, since the person canot
incur the penalty, in this instance, because
of the doubt.
Until his sex be ascertained.— If a man
declare, "all my male slaves are free,'* or,
"all my female slaves are free," — and he be
possessed of an hermaphrodite slave, this
slave is not emancipated until his rr M con-
dition be ascertained, since here the nufcster
cannot be forsworn, because of the douUt
If, on the contrary, he thus mention his
male and female slaves together, the herma-
phradite is in that case emancipated,
706
HERMAPHRODITES.
[VOL. IV
one or other description applies to him
indisputably, as he must bo cither a male -or
female.
His declaration of his sex «.s- not admitted.
TF an hermaphrodite declare himself to be a
male, or a female, and he be of the equivocal
description, hi.s declaration is not credited
as hi* plea is repugnant to the suggestion
of proof. But if he be not of an equivocal
description, his declaration may bo credited,
he being better acquainted with his own
state than any other person.
Rules to be observed in his interment.—
IP an equivocal hermaphrodite die before
his condition be ascertained, the ceremony
of ablution must not be performed upon his
body by either man or we/man, neither of
those being allowed to perform it to the
other. Ablution, therefore, being imprac-
ticable in this instance, the ceremony of
teyummim [rubbing with dust or sand]
must be substituted for it ;— and it is men-
tioned in the Jama Raraooz, that if the
teyummim be performed by any other than
a prohibited relation, the hand must be
covered with a cloth.
IF a hermaphrodite die at an age border-
ing on maturity (at twelve years of age,
according to the Jama Ramooz), the corpse
is not to have the ceremony of ablution per-
formed upon it, whether it be male or female
Upon depositing it, moreover, in the tomb
or grave it is laudable to cover the same
with a cloth, this being indispensable with
respect to woman, although not with respect
to men.
WHEN there is occasion to repeat the fu-
neral prayers over a man, a woman, and a
hermaphrodite, at the same time, the bier of
the man must be placed next the Imam, that
of the hermaphrodite next, and beyond all
the bier of the woman.
WHERE there is any reason for interring a
hermaphrodite in the same tomb [or grave]
with a man, the former must be deposited
after the latter, as it is possible that he may
be a female ; and a partition of earth must
also be constructed between them. If, on
the other hand, a hermaphrodite be interred
in the same tomb [or grave] with a woman,
he must be deposited first, as it is possible
that he may be a man.
IT is laudable to shroud the body of a
hermaphrodite in the same manner as that
of a woman, by wrapping it in live cloths ;
for, if it be a female, such is that ordained
practice with respect to w^men ; and if it
be a male, that is merely an excess of two
cloths, which is a matter of no moment.
Rules of inheritance with respect to her-
maphrodites.—-IF a man die, leaving two
children, one a hermaphrodite, and the other
a son, in that case, according to Haneefa,
t£; whole inheritance is divided between
tfhem in three shares, two going to the son,
and one to the hermaphrodite ; because he
hold a hermaphrodite to be subject to the
law of a woman, unless his condition be
to be otherwise. Shobbaia, on
the contrary, maintains that in this case the
hermaphrodite is to receive half the share of
a male heir, and half the share of a female,
—by first calculating the amount of his
shares, supposing him to be a male, and then
the same supposing him to be a female, and
adding the two together, and paying him a
moiety of the added sums. Mohammed and
Aboo Yoosaf subscribe to this opinion. They
however, differ in their exposition of it — •; for
Mohammed holds that the whole inheritance-
is to be divided into twelve parts, seven of
which go to the son, and five to the hernia
phrodite ; — whereas Aboo Yoosaf alleges that
it is to be divided into seven parts, four of
which go to the son, and three to the herma-
phrodite. The argument of Aboo Yoosaf is
that the son, if he stood alone, would bo
entitled to the whole inheritance ; and the
hermaphrodite, if he stood alone, would be
entitled to three fourths of the inheritance,
—he being entitled (when standing alone) to
a half, if accounted a male, or to tho whole
if accounted a female ; for the whole pro!
perty consists of four quarters, the half of
which is two quarters, — and these, beinir
added together, make six quarters, the half
of which is three. Whore, therefore, those
two unite in one inheritance, the estate is
divided between them according to their
respective proportions of right ; and as the
right of the son is to four fourths, and that
of the hermaphrodite to three fourths, the
former gets in the proportion of four, and
tho latter in tho proportion of three:— and
accordingly, tho whole inheritance is divided
into seven parts, four of which go to the
son, and three to the hermaphrodite. The
argument of Mohammed is that, supposing
the hermaphrodite to be a male, the inherit-
ance would be divided between him and the
son in equal shares ; or supposing him (on
the other hand) to bo a female, it would be
divided between them in three lots. We
must therefore have recourse to the smallest
number which admits of division by two
and by three ; and as this number is six,
it follows that On the former supposition
the inheritance is to be divided equally
between the two, three shares of the six
going respectively to each,— or that, on the
latter supposition, it is to be divided between
them in three lots, two shares of the six
going to the hermaphrodite, and four shares
to the son. The hermaphrodite, therefore,
is entitled to two shares, unquestionably •
and there being still a doubt with respect to
the one redundant share, that is divided
into two. Hence the hermaphrodite gets
two shares and an half; and a fraction thus
falling to his share, the root of the proposi-
tion (six) must be multiplied by two, in order
that there may be no fractions; * and the
whole calculation, being twelve, will come
out right, in this way, that five go to the
* That is, in order to reduce the whole to
integral parts,
BOOK LIIL]
MISCELLANEOUS GASES.
707
hermaphrodite, and seven to the son. The
argument of Haneefa is, that it is necessary,
jn the first place, to establish the herma-
phrodite's right in the inheritance ; and as
the smaller portion of inheritance (namely,
that of a woman) is unquestionable, and any
thing beyond it in doubtful, that alone is to
bo established, and due, which is certain and
indisputable, not any more, as a right to pro-
perty is not admitted under any circum-
stance of doubt,— the point in question being,
in fact, the same as where a doubt exists with
respeet to a right in property, founded on
any other pause beside inheritance, in which
case the unquestionable proportion only
would be decreed, and so here likewise ;—
excepting, however, in the case of a smaller
share* going to the hermaphrodite, suppos-
ing him to be a male ; for then he, would be
entitled to the share of a son, since, in such
instance, that would be his indisputable
right ;as where, for instance, a woman dies,
leaving heirs her husband, mother, and a
full sister f who i« an hermaphrodite,— or,
where a man dies, leaving heirs his wife, two
maternal brothers, and a full sister who is
an hermaphrodite; — in the. former of which
cases (according to Haneefa) one half of the
property would descend to the husband, a
third to the mother, and the remainder to
the hermaphrodite,— and in tho latter, a
quarter would descend to the wife, a third to
the two brothers and the remainder to the
hermaphrodite ; for in both these cases the
remainder is smaller than either of the two
full shares, that is, the share of tho herma-
phrodite supposing him to be a man, and
the same supposing the hermaphrodite to be
a woman.
OHAFTKR THE LAST
MISCKLLANTIOFS CASES
The intelligible sign* of a dumb person
suffice to verify Ma bequests, and render them
valid ; but not those of a person merely de-
prived of speech.-— WHERE people read a
deed of bequest to a dumb person, and
desire to know whether they shall testify
such deed on his behalf ? and the dumb
person makes a sign by an inclination of the
head, equivalent the expression of assent
"Yes ! " or, where a dumb person himself
write* Ruoh deed, and they thus desire to
* Namely, a smaller share than the half of
the whole.
| This might be rendered, with more strict
property, "a fraternal connexion," an her-
maphrodite being, in fact, neither a brother
nor sister. The translator, however, thinks
it most advisable to adhere literally to the
original,
know whether they shall testify it on his
behalf? and he makes u sign ; by an inclina-
tion of his head in tho affirmative,— -the
bequest, provided the sign he made in such
a manner as is commonly uwd to denote
affirmation, is valid :— but this mode of
affirmation by a sign does not suffice with
respect to a person whoso inability to ape a*
is supervenient, occasioned (for instance) by
some recent disorder,— Shafei maintains that
tho sign in question is cognizable and valid
equally with respect to both ; for the in.
ability alone is the cause of its being at all
admitted us sufficient, a cause which exists
alike in both.— Our doctors, however, con-
ccive a natural difference between a person
originally dumb, and one who merely labours
under a recent incapacity of speech, for
various reasons. — FIRST, signs are not cog-
niznhlr, unless they bo habitual and their
meaning ascertained, which is the case with
the signs of a dumb person, but not with
those of one who has merely lost his speech.
(Still, however, our doctors hold that if this
person bo so long deprived of speech as to
render signs habitual to him, and their
meaning ascertained, he then stands in the
same predicament with a dumb person in
this particular.)— SECONDLY, the person in
question is chargeable with a neglect in not
having made his will before he had lost his
speech, whereas no such neglect can be
charged to the dumb person. — -THIRDLY, it
is most probable that a recent incapacity of
speech will bo removed and yield to remedies
which is not the case with dumbness, and
therefore there is no analogy between them.
A dumb person may execute marriage,
divorce, purchase or sate, and sue for or
incur punishment, by means of either signs
or writings ; but he cannot thereby sue for or
inc.ur retaliation.— WHKRK a dumb person is
capable of either writing intelligibly, or
making intelligible signs, marriage, divorce,
purchase, of sale, declared by him, are valid,
and retaliation is also execute on his behalf,
or upon him ; but he is not liable to punish,
ment,* nor is punishment inflicted on hi«
behalf.— His written deeds are valid, and
cognizable, for this reason, that tho writing
of an absentee is equivalent to the oral de-
claration of a person actually present (in-
somuch that the Prophet, in promulgating
his laws, sometimes used one mode, and
sometimes another) ; and necessity is the
ground of validity with respect to the writing
of an absentee, which ground exists still
more strongly in the case of a dumb person.
—It is to he observed that writings are of
three different sorts or descriptions : I
regular testimonials! (meaning, such as are
* Meaning, punishment for offences against
GOD, namely, for whoredom and slander ;
as in explained a little farther on.
J Arab. Moost'beon Marsom. * is a
technical terra, applied to all regular deer's,
contracts, <feo.
708
MISCELLANEOUS CASES.
i,. IV
executed upon paper, and have a regular
title, superscription, and so forth, &s is
customary), which arc equivalent to real
declaration, whether the person he present
or absent : II. irregular testimonials* (mean-
ing, such as are not written upon paper,
but upon a wall, or the leaf of a tree, or,
upon paper without any title or superscrip-
tion), which are not admitted as proof
farther than merely as they signify the
writer's object or design : and II. writings
which are not testimonials in any sense f
(meaning such as are delineated in the air,
or upon water), which, as they are merely,
equivalent to words not heard, are no way
cognizable, nor attended with any effect.—
With respect to signs made by a dumb per-
son, they are recognize in the cases of
marriage, divorce, and so forth (as mentioned
above), from necessity, since those aro
matters in which the right of the individual
alone is concerned, and which aro not re-
stricted to any particular form of words, but
are even, in some instance (such as of
Beeftyo-Taata, or sale by a mutual surrender).
effected without any words whatever ; and
retaliation also is a right of the individual,
— But there is no necessity for punishment,
as that is a right of GOD, whence the pre-
vention of it by the existence of any doubt),
and therefore, if a dumb person verify the
report of a slanderer, still he is not liable
to punishment.— neither is punishment in-
flicted upon him if ho himself slander
another by signs, because the slander is not
express, which is the condition of its being
punishable.— The difference between punish-
ment and retaliation is, that the former is not
established by doubtful evidence, whereas
the latter is so ; — for if witnesses eharge a
particular person with "illegal carnal con-
nexion," or a person make confession of
"illegal carnal connexion," till punishment
is not to be inflicted ; whereas if witnesses
testify to "a murder*' in general terms, or »(
person make a confession of "a murder,*
retaliation is inflicted, although the term
"wilful1* should not have been expressly
mentioned. — The ground of this is that re-
taliation possesses the character of reciprocity,
as having been ordained for the preparation
of injuries ; and it is therefore admitted to bo
established notwithstanding a doubt, in the
same manner as all other matters of recipro-
city which concern the rights of the individual
— With respect, on the contrary, in such
punishments as are inflicted purely in right
of GOD, they have been ordained for the
purpose of determent ; and as that does not
bear the character of reciprocity, punishment,
as not being a matter of necessity, is not
S Arab. Moost'been Ghayr Marsoom. This
K the same term, only with the addition of
the primitive Ghayr.
t Arab, Ghayr Moost'been.
See Vol. II. p. 141.
established under any cireumstanee of doubt.
— Mohammed, in treating of ACKNOWLEDG-
MENTS,* says "the writing of an absentee is
not cognizable as proof, with respect to re-
taliation upon himself, such acknowledgment
send a written acknowledgment, inducing re-
taliation upon himself, such acknowledgment
is not cognizable). Our author remarks,
upon this passage, that it may be taken in
two ways. FIRST, by the absentee may be
meant any absentee, whether dumb or other-
wise ; and on this construction the point
admits of two determinations ; the one what
is here mentioned ; and the other, what has
been before recited. SECONDLY, by tho
absentee may bo meant a person who is not
dumb ;— * and if ho [Mohammod] had said "tho
writing of an absentee, not being dumb, is
not cognizable as proof with respect to re-
taliation, since, having the power of speech,
it is possible that ho may himself appear,
and make an express eonfession by word of
mouth ;- an expectation which cannot bo
entertained with respect to a dumb person,
wince it is impossible that such person
should speak, so as to make an express oral
confession." Some of our doctors entertain
an apprehension that the signs of a dumb
person, who is at the same tir.ie able to write,
are cognizable ; because signs are admitted
as proof purely from necessity, which does
not exist in this instance.— This appre-
hension, however, is repugnant to what has
been before mentioned, as from that we are
to infer that the signs of a dumb person aro
cognizable, notwithstanding he be capable
of writing ; for as it is their said that ** if a
dumb person make signs, or write, it is valid,"
it follows that signs and writings are of equal
weight, and that either of them suffices :—
the reason of which is that signs and writings
arc, both of them, admitted as proofs purely
from neeessity ; and as, on tho orio hand,
writing possesses an expliuitness of whole
.signs are destitute (tho design or meaning of
the person being ascertained indubitably from
what he writes), whereas signs are of an-
ambiguous nature, so, on the other hand,
signs possess an explicitness of which writings
are destitute, as they approach still nearer
to speed ;— and signs and writings are
therefore upon an equal footing.
The writing of a person who has boon de-
prived of the use of speech by any accident,
for two or three days, is not cognizable, any
more than that of an absentee who is not
dumb, since there is still room to hope that
he may be able to speak, as his organs of
speech remain.
Case of slaughtered carcases being promis-
cuously mixed with carrion.— IF the car.
cases of slaughtered f goats be promiscuously
* Probably in the Mabsoot.
f Arab. Mazboot, meaning those reugu-
larly slain according to the prescribed form
of Zabbah. (See Vol. IV. p. £87.)
BOOK LTIT )
MISCELLANEOUS CASES.
700
mixed with those of carrion* goates, and the
one be not known from the other, and the
number slaughtered exceed the number of
carrion the persons about to use them must
make a deliberate selection, and eat such
only as they suppose most likely to have
been lawfully slain. — But if the number of
carrion exceed the number slaughtered, or
if they be equal in number, none of them
must be used. — What is here advanced ap-
plies solely to a situation which admits a
latitude of choice ; for in a situation of
necessity the selection may be made under
either circumstance, and those used which
the people suppose most likely to have been
lawfully slain ; because as, in time of want,
indubitable carrion is allowed to be lawful,
it follows that what comes within the pos-
sibility of having been duly slain is lawful
a fortiori : but still a deliberate selection
must be made, since it is most likely that by
this means those will be used which have
been duly slain ; and the selection is there-
fore not to be dispensed with except in cases
of extreme urgency. Shafei maintains that,
in a situation which admits a latitude of
choice it is not lawful to eat any of the
goats, notwithstanding the number of those
• Arab. Moordar, meaning tho«e which
have died a natural death, or have not been
slain according to the prescribed form.
duly slain exceed the number of the carrion ;
for as the selection is an argument of neces-
sity, it is not to be practised except in a case
of necessity, which does not apply to a situa-
tion admitting a latitude of choice. The
argument of our doctors is, that the circum-
stance of the slain goats exceeding the car-
rion in number is equivalent to necessity,
whence the eating of some of them is lawful
after a due selection ; — in the same manner
as it is lawful to take and use articles sold
in a Mussulman market, because of the
greater number of commodities there exhi-
bited being lawful, notwithstanding a market
be not altogether free from certain prohibited
articles, such as stolen or usurped goods,
and the like ; the ground of which is, that
as it is not always possible to make a dis-
tinction with respect to small matters, a
regard to them is remittled, since otherwise
the business of life could not be carried on ;
and accordingly, a small degree of dirt, or
of nakedness, in prayer, is not of any
moment. In a case, therefore, where the
number of slaughtered goats exceeds that
of the carrion, the eating of some of them is
allowed, from a species of necessity. It
is otherwise where the number of the carrion
exceeds or equals that of the slain ; for in
this case, supposing the situation to be such
as admits a latitude of option, no necessity
whatever exists.
THE END
INDEX.
A.
ABOMINABLE SALES AND PURCHASES,— -Sec
SALES, 266, 279
ABOMINATIONS —
Difference of opinion concerning the extent
of the term Makrooh, 594
Of eating and drinking : —
It is abominable to eat the flesh or drink the
milk of an ass, or to take the urine of a
camel, except medicinally, 595
Or to use vessels of gold or silver, 595
But not vessels of lead, glass, crystal, or
agate, 595
Or to drink out of vessels, or ride upon a
saddle, or sit upon a chair or sofa orna-
mented with jjold or silver, 595
The information of an infidel may be credited
with regard to the lawfulness of any par-
ticular food, 595
A present may be accepted by the hands of a
slave or an infant, 595
The word of a reprobate may be taken in all
temporal concerns, but not in spiritual
matters, 596
So of a person of unknown character, 596
The word of an upright person, whether
freeman or slave, may be taken in spiritual
matters, 596
It is laudable to accept an invitation to a
marriage feast, notwithstanding any irre-
gularities which may be practised there,
597
Unless they be known beforehand, 597
Of Dress, 697
Women may dress in silk, but men must
not, 697
Further than what is merely onanamental, 597
A pillow of silk is allowable, 597
And a dress of silk to warriors, 597
Or of mixed cloth, 597
Of Ornaments, 597
Men are not to wear ornaments of gold or
silver, except on signet rings, girdles and
swords, 597
The setting of a ring may be of gold, 598
Gold is not to be used in any cases of neces-
sity where silver will answer equally well,
598 , H j
Infants must not be sumptuously apparelled,
598
Vain superfluities are not allowable, 598
Of the Commerce of the Sexes, and of looking
at or touching aly person, 508
ABOMINATIONS — continued.
Men must not look at strange women except
in the face, hand, or foot, 598
A man, if young, must not touch a strange
woman, 598
A female infant may be touched or looked at,
598
Rules to be observed by a magistrate with
respect to women, when acting in the
judicial capacity, or by a witness, 598
A woman may be looked at with a view to
marriage, 599
Rules to be observed by a physician in pre-
scribing for women, 599
A man may view or touch any part of another
man, except his nakedness, 599
A woman also may look upon any part of a
man, except his nakedness, provided she
be free from lust, 599
Or at any such part of another woman, 599
A man may view his wife or his slave in any
part, 599
A man may look at the person of his kins-
woman, 599
Male and female relations may touch each
other, if there be no apprehension of pas-
sion, 600
Or sit in private or travel together, 600
A man may look at the female slave of
another in the same manner as at his kins-
woman, 600
And may also touch her with a view to pur-
chase, 600
An adult female slave must be put in a
decent female habit, 600
An eunuch or hermaphrodite is the same as
a man with respect to these rules, 600
A male slave must not view his mistress but
in the face and hands, 600
A man may gratify his passion with his
female slave in whatever way he pleases,
600
htibra or waiting for the purification of
women : —
A man must not have connection with his
purchased female slave, until one term of
her courses have elapsed, 601
This rule operates only on purchase, not_on
the seller, 601
In the purchase of a menstruous female slave
the purchaser must wait for another com-
plete term, 601
INDEX
ABOMINATIONS — continued
A person purchasing his partner's share in a
female slave, must wait until her next
unification, f>ol
Otf.er rules to be observed respecting other
female slaves, 601
Where the carnal act is unlawful, all in-
centives to it are prohibited, 602
Pregnant women are purified by delivery, and
immature females by the 'apse of one
month, 002
Rule respecting adult females not subject to
courses, 602
Devices used to elude the abstinence re-
quired. 602
A person pronouncing Zihar must entirely
abstain from his wife until he have made
expiation, 602
A person indulging in wantonness with two
female slaves who are sisters, must put one
of them away before he can have connec-
tion with the other, 603
Men must not kiss or embrace each other,
uOJ
But tl cy mav join hands, 603
Of the rules to be observed in Sale, 303
Dung may be sold, but not human excrement,
603
Unless mixed with mud, 603
A person may purchase and have connection
with a female slave on the faith of the
seller's assertion respecting her, 604
But if the seller be a slave, precaution must
be used, 604
A woman may marry after observing her
edit, or receiving authentic information of
her widowhood or divorce, 604
Information tending to annul a marriage
must not be credited unless supported by
testimony, 604
A man may not marry a female slave on her
informing him that she is free, 604
A Mussulman is not allowed to pay his debts
by the sale of wine, but a Christian may pay
his debts in this manner, 605
it is abominable to monopolize the necessaries
of life, or to forestall the market, 605
but a person may monopolize the product of
his own grounds, or what he brings from a
distant place, 605
Sovereigns must not fix prices, 606
Except in cases of necessity, 606
A monopolizer, xipon information, must be
required to sell his superflous provisions,
oO(>
A combination to raise the price of pro-
vision must be remedied by the magistrate
fixing a rate, 606
Arms must not be sold to seditious persons,
b06
The crude juice of fruit may be sold for
making wine, 606
'. house may be let to hire anywhere out of
the city for the purpose of a pagoda or a
Church, 606
A Mussulman may carry wine for an infidel,
and receive wages for so doing, 606
Rules respecting the ground and houtts at
Mecca, 607
ABOMINATIONS— continued.
Implied usury is abominable, 607
Miscellaneous Cases : —
The Koran ought to be written without
marks or print, 607
Infidels may enter the sacred mosque. 607
It is abominable to keep eunches, 607
It is allowed to castrate cattle, 607
A Jew or Christian may be visited during
sickness, 607
Vain imprecations in prayer not allowed, 607
Gaming is disallowed, 608
Presents, except ot cloth, or money, or enter-
tainments, may be accepted from a mercan-
tile slave, 608
General rules with respect to infant orphans
or foundings, 608
A master must not fix an iron collar on the
neck of his slave, 609
But he may imprison him, 609
Clysters are allowed in cases of necessity,
609
The allowances of Kazee are to be defrayed
from the public treasury, 609
Case of Kazee dismissed after having receiv-
ed his allowance, 609
Female slaves may travel, being attended by
a kinsman, 609
ABOO BAKR xvii
ACCEPTANCE.— See SALE, 241
ACCIDENTS. — See FINES, 662
ACCIDENTS, 612
ACKNOWLEDGMENTS —
Chapter I. — Of Ikrar, or acknowledgments,
427
Definition of the term, 427
Acknowledgment proceeding from a compe-
tent person is binding upon the acknow-
ledger, 427
But not upon any other person, 427
The points that establish competency are
freedom, 427
Sanity of mind and maturity, 427
Acknowledment is not invalidated by igno-
rancy of the subject, 427
But it is so by ignorance of the person in
whose favour the acknowledgment is made,
428
Acknowledgments generally made must be
specified to relate to something of a valu-
able nature, 428
And if more be claimed than the Acknow-
ledger specifies, his assertion upon oath is
credited, 428
An acknowledgment expressed under the
general term property, must be received
according to the explanation of the acknow-
ledger, 428
But if made to a great property, it cannot
mean less than what constitute* a Niaib in
the property to which it relates, 438
Cases of acknowledgment relating to many
dirms, 429
Or to dirms generally, 429
Acknowledgment made in favour of an em-
bryo, in virtue of bequest or inheritance,
is valid, 429
Provided the birth take place Within a pro*
bable period, 429
INDEX
713
ACKNOWLEDGMENTS — continued.
And if the embryo prove still born, the thing
acknowledged must be divided among the
heirs, or if twins be born it must be divided
between them, 4>9
But if such acknowledgment be ascribed to
an impossible cause, it is null, 429
And so also if it be made without specifying
any cause, 429
Acknowledgment relating to a thing existing
but not yet produced is valid, 429
Acknowledgment of a debt under a condition
of option is valid, and the condition be-
comes null, 429
Chapter II.
Of exceptions, and what is deemed equivalent
to exceptions :
The exception of the part of a thing acknow-
ledged is valid, if immediately joined with
the acknowledgment ; but if the whole be
excepted, the exception is not attended to,
430
The exception must be homogeneous with the
acknowledgment, otherwise it is invalid,
430
A reservation of the will of God renders the
acknowledgment null, 430
In an acknowledgment regarding a house, an
exception of the foundation is invalid, 430
An exception of the court yard of a house is
admitted, 431
A reservation of non-delivery of the article
is done away by the delivery of it to the
acknowledger, 4.U
Objection, 431
Reply, 431
But in case of a disagreement with respect to
the article, both parties must be sworn, 431
If the article be not specific, the reservation
is not regarded, 431
A reservation of non-receipt of the thing
acknowledged must be credited, 4^2
A reservation of the cause of obligation being
illegitimate does not annul the acknowledg-
ment, 432
An exception with respect to the quality of
money acknowledged to be due, is set aside
by the counter-ajsertion of the person in
whose favour the acknowledgment is made,
432
But not when the exception relates to the
species and not to the quality, 433
An exception with respect to the quality is
admitted if the cause of the obligation be
not mentioned by the acknowledger, 433
And also where it is mentioned, if it be either
usurpation or trust, 433
With respect to the deposit or usurpation of
Satooka dirms, 43 v
An exception of a part from the whole is not
to be credited if made separately, 434
Unless this arise from some unavoidable acci-
dent, 43*
In an, of usurpation or damages, article must
be accepted, 434
Where the property is lost, if the acknow-
ledger allege a trust and the other party
assert an usurpation, the acknowledger is
responsible, 434
ACKNPWLEDGMENTS— continued
Objection, 434
Reply, 434
But not if he assert a trust and the other a
loan, 434
Case of the, of receipt of money with a re-
servation of its being the property of the
acknowledger, 435
Case of the, of receipt of specific property
with a reservation to the same effect, 435
Case of a dispute with respect to immovable
property, 435
Chapter I (L
Of acknowledgments made by sick persons, 436
Debts acknowledged on a death-bed (without
assigning the cause of them), are preceded
by debts of every other description, 436
Objection, 436
Reply, 436
A dying person cannot concede any specific
property, 437
Nor laake a partial discharge of his debts,
excepting those contracted duiing his ill-
ness, 437
A debt acknowledged upon a death-bed is
discharged after all other debts, 437
If there be no other debis it is discharged
previous to the distribution of the inheri-
tance, 4^7
An in favour of an heir, is not valid unless
admitted by the co-heirs, 437
And so also of an, in favour of a part of the
heirs, 4iK
The, of a dying person in favour of a stranger
is valid to the amount of the whole estate,
438
Objection, 438
Reply; 438
But it is annulled by a subsequent acknow-
ledgment that the stranger is his son, 4 <8
In favour of a repudiated wife, 438
Of parentage with respect to infants, 439
With respect to parents, children, and
patrons are valid, 439
If confirmed by the parties, 439
The, of a dying persons with respect to an
uncle or a brother, entitles them to inherit
if he have no other heirs, but does not
establish their parentage, 439
Of a brother by the heir entitles to inheri-
tance, but does not establish parentage,
440
Of, made by a co-he»r of the partial payment
of a debt owing to the person from whom
the inheritance descends, 440
ADDRESS, Introductory, iv
ADULTERY, — See DIVORCE, PUNISHMENTS, 180
AFOO. — See ZAKAT.
AGENT. — See PAWNS, 645
AGENTS —
In marriage and their powers; 42- 14
Appointment of, may be established by
casual information, 350
Dismissal must be duly attested, 351
AGENCY —
Attestation of a person's appointment to an.
is not to be credited, 36*
For composition, 446
ri4
INDEX
^KNCY— continued.
Chapter I.
A person may lawfully appoint another an
agent to act on his behalf in contracts,
376
And for the management of suits or criminal
prosecutions, or for the payment or execu-
tion of all rights, except retaliation or
punishment, 377
Objection, 377
Reply, 377
A person under accusation may employ an
agent to conduct his defence, 377
Cannot be appointed to manage a suit unless
the constitutent be sick or absent, 377
Or about to travel, 378
A woman may appoint an agent for litigation
in all cases, 378
To be valid, must proceed from a competent
constituent, and must be vested in a person
of understanding, 378
A Mahijoor slave, or an infant capable of un-
derstanding, may be appointed an agent,
378
But the obligations they enter into are not
binding upon them, but upon their consi-
tuent, 378
Contract concluded by agents are either such
as the agent refers to himself, 378
Or to his constituent, 379
An agent cannot be appointed to receive a
loan, 379
A debt contracted to an agent cannot be ex-
tracted by his constituent, 379
But if payment be made to the constituent
it is valid, 379
And the debtor may (in his payment) deduct
a debt owing him by the constituent, 379
Or by the agent when he alone is indebted to
him, 379
Chapter II.
Of Agency for Purchase and Sale, 379
For purchase, 379
An agent must be properly instructed with
respect to what he is to purchase, /i79
Except where his powers are general, 379
An agency is invalid where the terms in
which it is expressed leave a great degree
of uncertainty with respect to the subject
of it, unless in case of subsequent expla-
nation, 381
A power to purchase taam (food) is restricted
to the purchase of ^heat or flour, 380
An agent may return goods purchased by him
to the seller on account of a defect, 380
But not after having delivered them to his
constituent, 380
A right of pre emption may be enforced
against an agent before deliver to his
constituent, but not afterwards, 380
Agency in Sirf or Sillim is valid, 381
An agent paying for goods with his own
money is entitled to repayment from his
constituent, 381
He may detain from his constituent what he
^urchase, until he be paid the price, 38 1
ri3ut if the purchase perish in the agent's
hands during such detention, he is respon-
sible 381
AGENCY — continued.
Case of an agent purchasing, at the rate of
hi« instruction, a larger quantity of an
article than was specified in the instruc-
tion, 382
An agent cannot purchase for himself any
specific article which he is directed to
purchase for his constituent, 382
Unless he purchase it for something of a
different nature from the price specified,
382
Or through the mediation of another agent,
382
Case of, in purchase of an indefinite slave,
382
Which admits of four descriptions, 383
Case of dispute between the agent and con-
stituent respecting a slave who, after being
purchased by the agent, dies in his hands,
383
In a case of dispute between an agent and
constituent respecting the purchase of a
specific slave, the declaration of the agent
must be credited, 383
An agent avowing his commission cannot
afterwards retract, unless the alleged con-
stituent deny the commission, 384
An ag:nt is not at liberty, if he choose, to
purchase only one of two slaves specified,
384
But not if the purchase be at an evident
disadvantage, 384
Nor if the price exceed the rate expressed in
his instructions, unless the difference be
trifling, 384
An agent may liquidate a debt due from him
to his constituent by the purchase of a
specific article, 385
But if the article be not specified, and perish,
after purchase, in the agent's hands, the
debt is not liquidated, 385
Where an agent and constituent disagree
respecting a purchase, a judgment must be
given cccording to the value, 385
Or according to the declaration of the seller,
386
Of the appointment of ag«»nt by slaves for
the purpose of purchasing their own persons
in thfcir own behalf, 3M6
A person may employ a person to purchase
his freedom from his master, 386
A slave may act as the aijent of another
person in purchasing his own freedom, 3-s7
Objection, 387
I Reply, 387
i Oj Agency for Sale, 387
1 An agent for sale cannot sell to his father or
i grandfather, 387
I He may sell the article committed to him at
| whatever rate, and in return for whatever
| commodity he think fit, 387
| Objection, 388
! Reply, 388
An agent may purchase a thing at any rate
not greatly exceeding the value, 388
An agent for the sale of a slave may lawfully
sell any part or portion of him, 388
An agent for the purchase of a slave may
purchase him either wholly qr in shares, 388
INDEX
715
AQENCY — continued.
An agent to whom an article of sale is
returned by a decree of the Kazee, in
consequence of an original defect, may
return it to his constituent, who must
receive it back without any suit, 389
Objection, 389
Reply, 380
And so also where the defect is supervenient,
provided the Kazee's decree be not founded
on the agent's acknowledgment, 389
In which case the constituent is not obliged
to receive it back without a suit, 389
If the defect be original, the constituent must
receive back the article from his agent
without litigation, whether it be returned
by the purchaser in consequence of his
[the purchaser's] acknowledgment or not,
390
A constituent must be credited with respect
to his instructions, 390
An agent for sale is not responsible for con- |
sequences, 390
Miscellaneous Cases : —
Joint agents cannot act separately without a
mutual occurence, 391
Objection 301
Reply, 391
Except in the management of a suit, 391
Gratuitous divorce or manumission the re-
storation of a deposit, or the discharge of
a d*bt, 391
An agent cannot appoint a secondary agent,
391
Unless by consent of his constituent, or un-
less his powers be discretionary, 391
Contracts entered into by a secondary agent
in the presence of the primary are, how-
ever, valid, 391
And they are also valid, although made in
his absence, provided he afterwards consent
to them, 392
And the same of a contract engaged in by
an> stranger, 392
Or that (in a case of purchase or sale) the
constituent has previously fixed the rate,
W2
Joint agents must act together, although the
constituent have fixed the rate, 392
A Mokatib, a slave, or a Zimmee, cannot act
on behalf of an infant daughter, being a
Musslima, 392
And the same of an apostate or infidel alien,
392
Chapter III.
Of the Afipoint-nent of Agents for Litigation
and for Seisin.
Khasoomat, or litigation, means a conyersa.
tion carried on between two persons in the
way of contention and disagreement, 292
Agency for litigation implies and involves an
agency for seisin, 392
But decrees are passed on the contrary prin-
ciple in the present times, 393
An agent empowered to take possession of a
debt is also an agent for litigation, 393
A commission to take possession of substance
does not involve ? commission to litigate,
393
AGENCY— continued.
An agent for litigation is empowered to make
concession on behalf of his constituent,
394
Case of an appointment of agency with an
exception of acknowledgment, 394
Agency for the receipt of a debt committed
to the surety for the debt is invalid, 395
Case of a plea of agency urged for the
receipt of a debt in absence of the consti-
tuent, 395
Objection, 396
Reply, 396
Case of a plea of agency urged for the receipt
of a trust in absence of the constituent,
396
A person commissioned to receive a trust on
the plea of having purchased it, is not en-
titled to receive it from the trustee, 396
A person commissioned to receive a debt is
entitled to receive it, although the debtor
plead his having alreadv paid it, 396
The seller of an article cannot be compelled
to take back the article from the pur-
chaser's agent on a plea of defect, until the
purchaser swears to the defect, 396
A person receiving money to appropriate to a
particular purpose, may pay his own money
in lieu of it, 397
Chapter IV.
Of the Dismissal of Agents : —
A constituent may dismiss his agent at
pleasure, except where the right of another
person is concerned, 397
An agency continues in force until the agent
receives due notice of his dismissal, 397
A commission of agency is annulled by the
death, confirmed lunacy, or apostasy, of
the constituent, 397
But not by apostasy if tho constituent be a
woman, 398
Case in which an appointment of agency by a
Mokatib, a Mazoon, or a co-partner are
annulled, 398
A commission of agency is annulled by the
death or lunacy of the agent, 398
Or by his apostasy and flight to a hostile
country, 398
Agency is not renewed by the repentance and
return of an apostate constituent, 399
Agency for any particular act is annulled by
the constituent himself performing that
act, 399
An agency dissolved by any act of the con-
stituent cannot afterwards revive, 399
AQUEDUCTS, 612
AHL.— See WILLS, 691
AHYA-AL-MAWAT, 609
AILA, 109— See DIVORCE, 103
Oath cannot be demanded of Defendant in
claims for, 402
AKALA, OR DISSOLUTION OP SALES, 281
AKRABA.— See WILLS, 690
ALEE—
Husband of Prophet's daughter, Fatima
xvi
Expected nomination to Khalifat, xvi»
715
INDEX
ALIEN. — See MARRIAGE, DIVORCE, INFIDEL, xvi
Infidel cannot act for an infant daughter
being a Musslima, 392
Declarations of not to be credited, 12
Zakat to be levied on the property of, to the
value of fifth dirms or upwards, 1 -
Proportion, to be levied on property of, 13
Must not be exacted repeatedly, 13
ALMS.—See ZAKAT
Zihar may be expiated by, 121
ALMS-DEEDS. — See GIFT, 489
ALMS- GIFT —
Of mal, includes all property subject to mal,
349
AL SEYIR, OR THE INSTITUTES. — See INSTITUTES
AMIR-BA YAD, OR LIBERTY,— See DIVORCE 89
AMREE.— See GIFT, 489
AMROO, 14
AM-WALID.— See INHIBITION, 528.- SALE, 267.-
WILLA.
ANIMALS —
Accidents by — See FINES.
Borrowed, how restored, 481
Slaying. — See Food, slaying animals for, 587
Hired perishing from ill-usage, 496
ANNULMENT. — See EVIDENCE, 366
Of agency, 329
When annulled, cannot afterwards be revived
Of bequest, 675
APARTMENT. —See SALE, 294
APOSTATE —
Cannot act for an infant daughter, being a
Musslima, 393
APOSTASY. — See AGENCY, 398. — INFIDEL —
PUNISHMENT, 179
By Compulsion, 523
APPROPRIATIONS, 231
Definition of, and various opinions lespec-
ting it, 231
Alienation of an article appropriated is
completed by a decree of the magistrate,
and the declaration of the appropriator,
or the consignment of it to a procurator,
232
A decree of the magistrate fixes the appro-
priation, but the decision of a referee does
not, 233
Case of an appropriation made upon a death-
bed, 233
The appropriator's right of property is de-
stroyed ,' but without a transfer of that
right to any other person, 233
Any undefined part of a thing may be
appropriated, 233
Case of appropriation of land, where an
indefinite portion of it afterwards appears
to be the property of another person, 234
The object of an appropriation must be of a
perpetual nature, 234
Objection, 234
Reply, 234
Appropriation of immovable and of mova-
ble property, 234
T^appropriation of articles in which it is
iot customary is unlawful, 235
rtn appropriation cannot be sold or trans*
ferrcd, 235
ButJ.t may be divided off, where it consists
of an undefined part of anything, 235
APPROPRIATIONS— continued.
In case of dividing it off, the payment of a
balance made by the appropriator is law-
ful, but if made to the appropriator it
invalidates the appropriation, 236
The income of an appropriation must be ex-
pended (in the first instance) upon keeping
it in repair, 236
Unless the appropriator be rich, in which
case he is answerable for the repairs,
236
But in such degree only as may suffice to
preserve it in its original state, 236
The repairs of a house are incumbent upon
the individual occupant pro tempore, 236
Or if he neglect this, the magistrate must let
the house and furnish the repairs out of
the rent, 236
But the occupant is not liable to any com-
pulsion, 236
Objection, 237
Reply, 237
And none can let the house but the magis-
trate, 237
Decayed materials are to be used for repairs,
237
Case of appropriation with a reserve of the
use to the appropriator during life, 237
Or with a reserve of a liberty to change the
subject, 238
Or with a reserve of a right of option, 238
Or with a reserve of authority, 238
A mosque is not alienated from the founder ;
otherwise than by the performance of public
worship in it, 239
Cases of a mosque as connected with a dwell*
ing-place, 239
Ground appropriated to building a mosque
cannot be sold or inherited, 239
A mosque cannot in any instance revert into
the property of the founder, 240
Case of appropriation made to the use of
the community at large, 240
They may be consigned to a procurator, 240
Appropriations may be consigned to the
prince or chief magistrate, 240
ARBITRATION, 343
AREEAT.— See LOANS, 478
AS'HAR— See WILLS, 689
ASSES.— See ZAKAT
ATTESTATION.— See EVIDENCE
AWKIYAT —
An ounce of silver, value between six and
seven shillings, 9
AWLAD.— See WILLS, 691
AYNIT SALE —See BAIL, 326
AYSHA —
Step-mother of Fatima. xvi
B.
BAIL.- See SALE, 294
In partnership. 218
Given upon death-bed, 219
For property, 320
In which two are concerned, 328 ^
For the person, 319
Pledges not received in case of, 638
INDEX.
717
BAIL— continued.
Or Kafalit; 317
Definition of terms used in, 317
Chapter I,
Distinctions, 318
Bail for person, 318
Under what forms contracted, 318
The surety must deliver up the person for
whom he is bail at the stipulated period,
and, in failure of this, is liable to imprison-
ment, 318
If the principal disappear, the surety must be
indulged with time to search for him and
the contract is fulfilled by delivering up the
principal at any place which admits of liti-
gation, 318
The death of the principal releases the surety,
319
And the death of the surety annuls the con-
tract, 319
If the claimant die, the heirs or executors may
demand the fulfilment, 319
The surety is released by delivering up his
principal, 319
Or by delivering himself up, 319
Or by his being delivered up by a messenger,
The judgment of the claim may be suspended
upon the non-production of the principal,
3 1:7
Hut still the, for the person remains in force,
319
If the the time be fixed and the principal die
in interim, the surety becomes responsible,
320
A case of bail for property connected with
bail for the person, 320
For the person cannot be exacted in case of
punishment or retaliation, 320
Buv may be taken if offered by the accused,
320
A pledge may be accepted for the payment
of any fixed tribute, 320
For property is lawful, if founded upon a
just debt, whether the extent be known or
uncertain, 320
In a case of, the claimant is at liberty to
make his demand, either upon the surety
or principal, 321
Upon either or both, 321
May be suspended upon any fit and proper
condition, 321
Where the, is given in an unlimited manner,
the amount is ascertained by testimony, or
that failing, by the declaration of the
surety, 321
May be contracted with or without the con-
sent of the principal, 322
Circumstances under which a surety has or
has not a right to demand compensation
from his principal, 322
He cannot claim reimbursement until he has
actually discharged the claim upon the
principal, 322
But he may proceed as the claimant proceeds
322
He is released by*a discharge of the principal,
but the principal is not released by an ex-
emption to him, 322
BALL.— Continued. t
And the same of a suspension of the claim,
322
A surety compounding the debt of the princi-
pal with the claimant, discharges both from
any further demands, 323
And has a claim upon the surety for what he
pays in composition, 323
A surety compounding for an exemption on
his own behalf, does not discharge the
principal, 323
Cas» in which the surety's right against the
principal depends upon the terms of his
exemption or discharge, 321
An enlargement from cannot be suspended
upon a condition, 323 .
In cases of punishment or retaliation is valid
only for the p>rson, 324
May be given for the price, but not for the
goods in a sale, ^24
For the performance of work by a specific
animal is not valid, 324
Contract of, must be performed with the
consent of the claimant, 324
Except where the debtor is dying, 324
Objection, 324
Rep'y, 325 , , ..
Case of, gratuitously entered into on behalt
of an insolvent defunct, 325
A debtor paying his surety, the sum for
which has been given before the surety
has satisfied the creditor, cannot claim it,
325 . ,
Case of a delivery of substance by the
principal to guard his surety against loss
325 . .
Case of bail discharged by an aymt sale
326 f
Evidence cannot be heard in support ot any
claim against the surety which does not
come within the description in the contract
of bail, 320 .
A decree passed against the surety in the
absence of the principal cannot effect the
latter unless the, were entered into by his
desire, 326
Case of Kafeel-be'l-dirk, 327 .
An attestation to a contract of sale is not
equivalent to Kafeel-be'l-dirk, 327
Of Zamins or guarantees : —
The guarantee of agents to their employers
is null, 327
The guarantee of partners in a purchase and
sale to each other is null, 327
Guarantee for land tax, and all other regular
or justifiable imports, is valid, 327
Difference between a suspended debt and sus-
pended, 328
Against accident in the sate of a slave, 328
Security of fulfilment is null, 328
Surety for a surrender of the article to the
purchaser is invalid, 329
Chapter II.
Of bail in which two are concerned, 329
Case of two who are joint principals i
debt, and who are, for each other, 329
Case of two persons who are, for a third, to
the amount of the whole claim, and also
reciprocally for each other's security; 389
718
INDEX
BAIL. — continued.
In the dissolution of a reciprocity partner-
hip, each partner is responsible for any
ebts contracted under their partnership,
30
Case of two Mokatibs, on each other's behalf
for their ransom, 330
Chapter III.
Of bail by freeman in behalf of slaves, and
by slaves in behalf of freeman, 330
A person becoming surety on behalf of a
slave for a claim to which the slave is not
liable until after emancipation, 330
For the person of a slave is cancelled by his
death, 331
To a claim of right in slave subjects the
surety to responsibility in the event of the
slave's decease, 331
By a slave in behalf of a master, or by a
master in behalf of a slave, does not afford
any ground of claim by the surety upon
the principal, 331
The consideration of Kitabat is not a subject
of ,331
Nor a consideration in lieu of emancipator s
labour, 331
BAKER —
Hire of, 492
BANISHMENT — See EXPATRIATION.
Of loose women. 181
BANKRUPT. — See INSOLVENT DEBTORS
BARTER —
In, the mutual delievery must be made by
both parties at the same time.— See SALE,
248
Rules of, 267, 282, 307
Disputes in, 307
Base money, 315
Sale in exchange for, 318
BARTERER,
Testimony of a, 363
BAZAT,— See ZAKAT; 13
BAZIK, 619
BEASTILITY. — See PUNISHMENTS, 185
BEASTS OF PREY, 591
BEES—
Sale of,— See SALE 269
BEQUESTS. — Sec WILLS, 671
Rescission , 674
For poi us purposes, 688
To an heir is invalid, 437
By an inhibited prodigal, 529
Must not exceed a third of testator's pro-
perty, 674
Acceptance and rejection of, 672
By an insolvent, 673
Cases of joint, 679
Of an apartment in a partnership house, 681
To pious purposes, 688
By Zimmees, 695
By dumb persons, 707
BESPEAKING OP ARTICLES FROM A WoRKMAN,308
Bf*X, OF SALE—
Attestation to, 357
BIRDS.— See SALE, 268
BIRDS OF PREY, 591
BiRTH.—See DIVORCE, 134 et seq.
Evidence of, 358, 401, 426
BITUMEN. — See ZAKAT, 19
BLIND —
Instruction by. —See SALE, 257
purchase and sale by, 257 .
The evidence of a blind man is inadmissible
359
BLOOD —
Sale of, is null, 267
BONDAGE —
Composition in claims of, 445
BORROWED ARTICLES.— See LOANS
Borrowing with a view to pawn, 651
BREAD —
May be sold for flour.— See SALE, 293
BRICKS, 308
BRICKMAKER —
Hire of a, 492
BRISTLES —
Of a hog, 270
BRIDGE — . .
One partner cannot contract, upon a nvuiet,
without consent of others, 617
BROTHER —
Tistimony of, admissible, 361
BUILDING— „ r
Land may be borrowed for the purpose or,
430
Projecting over the highway, 660
BULLION.— See ZAKAT,
Representative of value, 220
Usurpation of, 530
BURYING.— See Vows.
BURYING-GROUND —
Appropriation of, 233
BURIAL— . , r , .,
Evidence of, amounts to evidence of death
358
BUTTER —
Sale of the milk, 268
C.
CALVES.— See ZAKAT
CAMEL'S COLTS
Zakat of —See ZAKAT, 4
Method of slaying, 591
CAPITAL STOCK —
In Mozaribat contracts, 456
CARRION — . .
Slaughtered carcases bein? promiscuously
mixed with, 708
Sale of, null 265
Definition of 618
CARRION CROW—
Unlawful to eat, 591
CATTLE.— See ANIMALS.—
Have a right to drink from a well, &c., 613
Labouring, exempt from Zakat. — See ZAKAT.
Straying, 210
CHARITY —
Agency for distribution of, 379
Bequest of, 688
CHASE.— See HUNTING,
CHATTEL PROPERTY—
Definition of, 10
CHILD.— See BIRTH, .
CHILDREN.— See INFANTS.-— *
Are, under father from infancy, 138
INDEX
719
CHRISTIAN.— SEE OATH, 401,
May act as agent for Mussulman to buy or
sell unlawful articles— See SALE, 272.
Claim of parentage by a, 425,
May be visited in sickness, 607.
Bequests by, 695.
Church founded by Zimmees, 695.
CIRCUMCIZED —
Testimony of one who remains uncircum-
cized, 363.
CLAIM —
Right to water cannot be given in competi-
tion for, 618
Distinction between plaintiff and defendant,
399
A plaintiff must particularly state the sub-
ject of his claim, 400
Which if it be movable property, must be
produced in court, 400
The defendant must appear to answer to a
valid, 400
And must produce the subject of it, 400
Or the value of it must be specified, 400
Or if the subject consist of land, the Plain-
tiff must 'define the boundaries. &c,, and
must make an explicit demand of it, 400
A, for debt, requires only the claim, 401
And a descriptive of the species and amount,
401
Process to be observed by the Kazee, 401
Chapter If.
Of oaths. 401
An oath must not be required of the de-
fendant when the plaintiff's witnesses,
although not immediately present, are
within call, 401
An oath cannot be exacted by the plaintiff,
401
The evidence adduced on the part of the
plaintiff must be pr<.fered to that adduced
on the part of the defendant, 401
The defendant refusing to swear, the Kazee
must forthwith pass a decree against him
402
The Kazee must give three separate notices
to the defendant, 402
Refusal to swear is of two kinds, real and
virtual, 402
An oath cannot be exacted from the defen-
dant in, respecting marriage, divorce,
Aila, bondage, Willa, punishment, or
Laan, 402
Objection, 403
Reply. 403
A thief refusing to swear becomes liable for
the property stolen, 403
A, founded on divorce before consummation,
entitles a wife to her half-dower where the
husband declines swearing, 403
Pleas of consanguinity admit of an oath
being tendered to defendant, 403
Case of a claim of retaliation, 404
Where plaintiff's witnesses are within call,
the defendant must give bail for his
appearance for three days, 404
But if they are not within call, bail cannot
be required of defendant, 404
Of the manner of swearing and requiring an
oath, 405
CLAIM — continued,
The.oath must be taken in the name of God,
405
The Kazee must dictate the terms of it, 405
Swearing by divorce or emancipation must
not be admitted, 405
Jews must swear by the Pentateuch, and
Christians by the Gospel, 405
Pagans by God, 405
Oaths must not be administered in an infidel
place of worship, 405
Oaths of Mussulmans need not be corrobo-
rated by swearing them at a particular
time or in a particular place, 405
Case in which the oath of the defendant
must relate to the cause, and cases in
which it must relate to the object, 405
In a case of inheritance the oath of the
defendant must relate to his knowledge,
406
When a defendant enters into a composition
with the plai itiff, an path cannot after-
wards be exacted from him, 406
Chapter I II,
Tahalif or the Swearing of both Plaintiff and
Defendant : —
A seller and purchaser are mutually to swear
where they both disagree and are desti-
tute of evidence, 407
Formula of oaths of a seller and purchaser,
407
Where both parties swear, the sale must be
dissolved by an order of Kazee, 407
A seller or purchaser upon declining to swear,
loses his cause, 408
The parties are not to be sworn where their
disagreement relates to something not essen-
tial to their contract, 408
In disputes respecting any sup^radded stipu-
lation, the assertion of the respondent must
be credited, 408
The parties are not to be sworn where the
goods perish in the hands of the purchaser,
Objection, 408
Reply, 4U8
Case of a dispute concerning the price of
two slaves, where one of them dies. 409
Mode of swearing the parties in this instance,
409
Case of a disagreement concerning the price
in the dissolution of a contract of sale
after delivery of the subject of it, 410
Where the price has been »>aid in advance,
and the parties agree to dissolve the con-
tract, but disagree concerning the sum
advanced, the assertion of the seller must
be credited, -111
Cases of disagreement between a husband
and wife resp cting dower, 411
Case of a dispute between lessor and lessee
concerning the rent or the extent of the
lease before delivery of the subject, 412
After delivery of the subject, 412
Dispute concerning the ransom, 412
Dispute between husband and wife concerning
furniture, the article in dispute is adjudged
to the party to whose use it adapted, 413
720
INDEX
CLAIM—COM tinned
If a dispute be between the survivor and the
heirs of the deceased, the article must be
adjudged to the survivor, 413
If one of the parties be a slave, it must be
adjudged to the party who is free, 413
Of Per sons who are not liable to Claims, 413
A person is not liable to a claim who sets up
a plea of disposit, pledge, or usurpation in
the article claimed, supported by the testi-
mony of witnesses( unless he be a person
of notoriously bad character, 413
Or that his witnesses bear defective testi-
mony, 414
Or is liable if he set up a plea of right of
property, 414
Or if the plaintiff sue him on a plea of theft
or usurpation, although he produce evi-
dence to prove a trust, 414
And so also if the plaintiff sue upon a plea of
theft without specifying the thief. 414
out not if the plaintiff sue him on a plea of
purchase, 415
Chapter IV.
Of things claimed by two Plaintiffs, 415
If the, be laid to a thing of a divisible
nature, and the proofs on each part be
equal, the thing must be adjudged equally
between both claimants, 415
If it be a wife, the right must be adjudged
according to her declaration, 415
Or if the witnesses specify dates, according
to the prior date, 415
A dercee adjudging a wife to a single claim-
ant, cannot be reversed in favour of a sub-
sequent claimant, unless his witnesses
prove a priority of date, 416
The claimants to a slave on a plea of pur-
chase, upon his being adjudged between
them, are severally at liberty to pay ghalf
the price or to relinquish the bargain, 416
But if they specify and prove dates, the
slave must be adjudged to the prior pur-
chaser, 416
Where one party pleads purchase and the
other gift and seisin, without specifying
dates, the article must be adjudged to the
purchaser, 416
Objection, 417
Reply, 417
A claimant on a plea of purchase, and a
claimant on a pica of marriage, are upon
an equal footing, 4i7
Two claims equally supported, must be deter-
mined by the priority of date, 417
Two pleas of purchaser, preferred against one
person, must also be determined by the
oldest date, 417
If against two different persons; the article i*
adjudged equally between both claimants,
417
Unless one only adduces evidence to a date,
Vifen it must be adjudged to him, 418
where four claimants plead a right in a thing
as derived from four different persons, the
article is adjudged among them in equal
lots, 4,18
CLA IM — con ti nued
The evidence of the possessor must be pre-
ferred to that of the plaintiff, where it
proves a prior date of right, 418
The evidence on the part of the plaintiff is
preferred where the claim is laid abso-
lutely, 418
And the same where the subject in dispute
is immovable property, 418
Case of claims to animals, founded upon
generation, 419
Or to any other property, founded upon a
of rig"
419
cause 01 right, equivalent to generation,
The possesor of an article, proving his having
purchased it from the claimant, sets aside
his plea, 419
If each party prove a purchase from the
other (without specifying the date), no
decree can take place, 41^
And so also if each pr>ve payment of the
price, 420
In disputes concerning land, a decree must be
passed in favour of the last purchaser,
420
The production of any number of witnesses
above the lawful number makes no diffe-
rence with respect to the decree, *20
Case of a claim made by two persons to a
house where one claims the half and the
other the whole, 421
In claims founded upon generation, regard
must be paid to the date stated by the
claimant, 421
One party pleading a trust and the other
asserting an usurpation, each is upon an
equal footing, 421
Of disputes concerning Possession : —
The possession of an animal is ascertained by
any act which implies an use of the animal,
421
The right of one using a thing is preferable
10 that of one laying hold of it, 421
Right of possession over a founding is estab-
lished by his own acknowledgment, 422
The Court of Serai is adjudged between the
disputants, 422
A decree cannot be issued respecting a claim
to land without the adduction of evidence,
422
Chapter V.
Uf Claim of Parentage : —
A claim made by the seller of a female slave
to a child born of her within less than six
months after the sale, is established, 422
And if the purchaser make the same claim,
still the claim of the seller is preferred,
422
If the birth happen within from six months
to two years after the sale, his claim is not
admitted without the verification of the
purchaser, 422
The mother become his Am-Walid if the
child be living at the time of the claim,
423
If made by the seller after the mother has
been emancipated by the purchaser, it is
valid; but if the child she ild have been
emancipated by him, it is null, 423
INDEX
721
CLAIM— continued .
A claim made by the original seller after a
second sale is valid, and that sale is null,
423
A claim established with respect to one twin,
establishes it with respect to the other
also, 424
A daim of offspring cannot be established
after an acknowledgment in favour of an-
other person, 424
A claim of parentage made by a Christian is
preferable to a claim of bondage advanced
by a Mussulman, 425
A claim of parent aqe by a married woman is
not admitted unless at least one woman
testify to the M.th, 426
Or (if she be in her Edit) one man and two
woman, 426
But if her husband verify her claim, there is
no occasion for such evidence, 426
Case of a person begetting a child upon a
female slave, under an erroneous possession,
426
CLOTH.— See SALE.
CLOTHING. — See Vows, 172
CO-HEIRS—
Testimony of, See EVIDENCE, COIN : —
May be sold by weight, 291
COINAGE —
Rules respecting base, ^15
COLTS OF CAMELS —See CAMELS.— ZAKAT,
COMPACTS OF CULTIVATION.— See CULTI-
VATION OF.
COMPACTS OF.
COMPACTS OF GARDENING.
of Mosakat, or Compacts of Gardening, 584
Nature of a compact of gardening, 584
Doctrine of Shafei upon this subject, 58*
Analogy requires the specification of a term,
but is not essential, 585
Except where the trees are newly planted,
585
Or where the compact is declared to be for
as long as the trees, &c., shall last, 585
The specification of too short a term invali-
dates the compact, 585
But not where it is possible that the end of
it may be answered within that period,
r,85
The compact cannot be dissolved by either
party but under some plea or pretext.
585
A compact may be entered into whilst the
fruit is qreen, but not after it is ripe,
586
If the compact be invalid, the gardener gets
wages, 586
The compact is annulled by the decease of
either party, rules in case of the proprietor
dying, 586
Rule in case of the gardener dying, 586
Rule in case of both parties dying, 586
Rules in case of the compact expiring whilst
the fruit is yet green, 586
The compact may be dissolved by any plea
or pretext, 586
COMPACTS OF GARDENING — continued.
A lease of open land of planting in conside-
ration of a part of the produce is invalid,
5&7
COMPENSATION.— See SALE, 259
COMPLETE RETIREMENT. — See KHALWAT. —
SAHEEB.
COMPOSITION—
of Soolh in Composition, 440
Definition of the term, 440
Chapter I.
May be made in three modes.
1. With acknowledgment
2. Under silence
3. And after denial, 441
By concession of property for property, is
equivalent to sale, 441
And is rendered invalid by an ignorance of
the.thing to be given in, 441
By a concession of usufruct is equivalent to
hire, 441
But the term of usufruct must be specified,
441
After denial, are equivalent to an exchange
with respect to the plaintiff, but not with
respect to the defendant, 441
The concession of a house by a, does not in-
duce a right to shaffa, 442
Objection, 442
Reply, 442
Bui shaffa is induced by the act of giving a
house in, 442
Cases in which part of thing given must be
restored, 442
If the, be after denial or silence, and the
thing compounded for prove the right of
another, the consideration must be re-
turned, and the plaintiff must lay his claim
against him who has the right, 442
And the same, proportionally, where any
part of it proves the property of another,
442
If the thing given in, after acknowledgment,
prove the right of another, it must be
restored, and the plaintiff is entitled to
an equivalent from the defendant, 442
If this happen in, after silence or denial, the
plaintiff must claim from defendant the
article in dispute, 443
A, for an undefined part of a thing is not
affected by the right of another after-
wards appearing to a part of that thing,
443
In consideration of, a part of the subject is
invalid, 44.1
Disputes concerning property may be com-
pounded, 443
And also claims of usufruct, 443
Are lawful in homicide, 443
But if acceded to for one unlawful articles
nothing is due, 444
There is no. for punishment, 443
Claiming of parentage, 443
Or for sufferance of ajbuilding on the high-
way, 145
A claim of marriage may be compr«pded
whether the claim proceed from a man
woman, 445
722
INDEX
COMPOSITION — continued.
Claim of bondage may be compounded,
445
But it leaves no right of Willa in the claim-
ant, 445
A privileged slave cannot compound for
offences committed by himself, but he
may for offences committed by his slave,
,445
Case of composition for a property usurped,
and which perishes in the usurper's hands,
445
Claim of, a share in a partnership slave,
446
Chapter II.
Of gratuitous or voluntary Composition, and
of the appointment of Agents for Composi-
tion, 446
An agent for, in a case of bloodshed or debts,
is not responsible foi the consideration un-
less he expressly agree to be so, 44(>
But he is where the, is of property for pro-
perty, 446
Fa2ool*e are of four description, 4-46
1 Of debt by property for which the cum-
pounder is responsible, 446
II. Of anything for a specific property
which must be immediately delivered by
the compounder, 447
III. Of anything for unspecified property,
but which the compounder delivers, 447
IV. Of anything for unspecified property,
and which the compounder does not
deliver, 447
Case of a Fazoolee compounding for a specific
article without referring the same to his
property, 447
Chapter III
Of Compositions of Debt ; —
A debt owing in consequence of any
contract concluded, when credit may be
compounded by payment of a part, 448
And the same of similar, of debt owing in
consequence of any act which subjects to
responsibility, 448
'Debt may be compounded by a forbearance
of the same sum, 448
But not if the postponed payment be stipu-
lated in money of a different denomina-
tion, 448
A postponed debt cannot be compounded by
the immediate payment of a part, 448
A debt of bad money cannot be compounded
by the payment of a smaller sum in good
money, 448
But a debt of good money may be com-
pounded by bad, whether the sum be
smaller than or equal to the demand, 449
A debt in money of two denominations may
be compounded by a smaller sum of either
denomination, 449
Case of a proposal from a creditor to grant
his debtor a complete discharge on condi-
tion of his paying one -half of the debt
within a limited time, 449
Which admits of three different statements: —
the proposal has no condition
in failure of payment.
COMPOSITION — continued.
II. Where it is annexed that in failure of
payment the proposal shall be void,
III. Where the discharge is primarily
stated, 449
An acknowledgment may be stipulated for a,
450
But if the stipulation be publicly proposed,
the composition is of no effect, 450
Of participated debts, 450
One of two partners compounding his share
of a debt due to them jointly, the other
partner may either take his proportion of
the, or look to the debtor for his share,
450
One of two partners receiving payment of
his share in a debt due to them jointly,
and paying the other his proportion of
what is recovered, has still a claim upon
them remainder, 450
If the other prefer receiving payment of his
part solely from the debtor, and the pro-
perty be lost, or the debtor prove insol-
vent, he has then a claim to his proportion
of what has been received by his partner,
but not where his partner has compounded
for his share by a commutation, 450
In a release from a part of his share by one
partner, the right of his creditors con-
tinues in proportion to their remaining
claims, 451
One of two partners may agree to a post-
ponement of payment, 451
One of two partner receives his share by
usurping anything from the debtor or by
losing or destroying anything belonging to
him, or by accepting a lease in, or by
burning a piece of cloth, his property, 451
One of two partners annuls his share by
marrying the debtor (being a female) and
settling his share of the debt as her dower,
or by compounding with it for an offence,
451
Or compounding his share of the debt by a
purchase, the other may either take his
share from the debtor or an equivalent for
his proportion in receipt from the purchaser
451
Objection, 452
Reply, 452
One of two partners in a sillim contract can-
not compound for his share, 452
Of Takharij,452
Definition, 452
Heirs may compound with a co-heir for his
share of inheritance, ccnusting of lands
or effects, by any equivalent, 453
Or by one precious metal where the inhe-
ritance is in another, 452
An inheritance of bullion or effects may be
compounded for by gold or silver ; but
this gold or silver must exceed the share
of the same metal inherited ; and the heir
must be put in possession of such excess
at the time of adjusting the, 453
An inheritance of money may be compounded
for by money, each species being opposed
to the other respectively, 453
INDEX.
723
COMPOSITION — continued.
The inheritance of a debt cannot be com-
pounded, except by the heir agreeing to
release the debtor from his proportion,
453
Or by the other heirs paying him that pro-
portion gratuitously, 453
Or lending it to him, to transfer to the
debtor, 453
The case of, of an inheritance where the par-
ticulars of the estate are not known, 454
Where the particulars are only known in part,
454
The inheritance of an insolvent estate can
neither be compounded for nor distributed,
453
COMPULSION —
Oflkrah. 510
A person forced into a contract may after-
wards dissolve it, 519
Unless the means of, be traflint?, 519
The purchaser becomes proprietor of goods
sold upon, 51Q
The acknowledgment extorted by, is invalid
519
But the seller may resume the article, pro-
vided he does not signify his assent to the
sale, 519
Case of a Waffa sale, 520
A compelled sale is rendered valid if the
seller willingly receives the price, 520
Not so if he be compelled to receive it, 520
A sale in which the seller is compelled,
but not the purchaser, leaves the latter
responsible for the article, in case it be
lost in his hands, 520
A person may lawfully eat or drink a prohi-
bited article upon a compulsion which
threatens life or limb, 521
A person must not declare himself an infidel,
or revile the Prophet upon, unless he be
in danger of otherwise losing his life or
limb, 521
A person destroying the property of another
upon, is not responsible ; but the com-
peller is so, 522
A person murdering another upon, is an
offender ; but the compeller is liable to
retaliation, 522
Case of compelled divorce or emancipation,
523
Of compelled appointment of agency for
divorce or emancipation, 523
No deed, in itself irreversible, can be re-
tracted after being executed by, 523
Whoredom by, incurs punishment, 523
Of apostasy upon, 523
Of Islam upon, 524
Of a husband acknowledging his having
apostatized upon, 524
CONCESSION—
Of an object claimed, 402
In what cases not allowed, 404
In Composition, of immoveable property, 442
CONDITIONAL BAIL.— Sec BAIL.
CONFESSION.— See PUNISHMENT.
Of whoredom— Sec WHOREDOM,
Of Drunkenness, 196
Of Slander, 199 ,
CONSANGUINITY —
Plea.of, 403
CONSIDERATION —
Of Kitabat.— See RANSOM.
CONSTITUENT —
Testimony of, must be credited with respect
to his instructions.— See AGENCY.
CONTRACT —
Of Marriage.— See MARRIAGE.
Of Partnership. — See PARTNERSHIP.
Of Sale.—See SALE.
Of Bail.— See BAIL.
By Agents. — See AGENCY.
Of Mozaribat— See MOZARIBAT.
Of Hire.— See HIRE, 509
By Infant.— See INFANT.
By Lunatic. — See LUNATIC.
Of Heir.— See HEIR, 489
Of Pawn.— See PAWN.
Evidence of annulment of, 366
CONTRIBUTION.— See BAIL.— PARTNERSHIP, 224
CONVERSING —
vows respecting, 163
COOK —
Hire of a, 492
GOPARCENY —
Partnership of joint inheritance, 217
CO-PARTNERSHIP.— See PARTNERSHIP,
COPPER COINAGE, 346
CORN. — See GRAIN. — SALE. —
Whether included in sale of land, 245
! COURTS OF JUSTICE —
I Establishment of, by Mahommedans, xiv
CREDITOR —
Denying his debtor's acknowledgment, can-
not afterwards substantiate his claim but by
proof, or the debtor's verification, 346
Rights of, 136-138
Joint partners in a debt, 450
CRIMINAL CASES —
Evidence required in. — See EVIDENCE, 353
CRIMINAL PROSECUTIONS—
Agency for. — See AGENCY.
CRIMINALS —
Evidence of atrocious, 362
CROCODILE —
The flesh of, unlawful, 592
CROW. — See CARRION.
CUCUMBERS, 262
CULTIVATION —
Of waste lands, 609
Compacts of : —
Compacts of cultivation or Mozarea, 578
Definition of the term, 579
Difference of opinions concerning compacts
of cultivation, 591
They require that the ground be capable of
cultivation, 579
That the parties be duly qualified, 579
That the term of their continuance be ex-
pressed, 579
That the party be specified who is to supply
the seed, 579
That the share of the other party be —
pressed, 579
That the land be delivered upto the cultiva-
tor, 580
INDEX
CULTIVATION— conti nued .
That both parties participate in the produce,
580
And that the particular seeds be mentioned,
v?80
Of compacts of cultivation, four descriptions
And two are invalid, 580
The period of their duration must be known,
and the produce must be participated
between the parties in indefinite propor-
tions; 680
If the grain alone be mentioned, the straw
goes to him who supplies the seed, 581
And it may be stipulated to go to him, 581
But it cannot be stipulated to go to the other,
581
The produce is participated according to
agreement, and if nothing be produced,
the cultivator has no claim, 581
Where the contract proves invalid, the pro-
duce goes to him who furnishes the seed
and the other party, 581
If he be the cultivator, gets wages, not ex-
ceeding his right under the compact, 581
Or if the proprietor of the ground, an ade-
quate rent, .581
And also an adequate hire for the cattle, if
supplied by him, 5 2
If it be the proprietor who thus gets the
produce, he may keep the whole, but if the
cultivator, he must bestow the surplus in
charity, 582
The party who agrees to supply the seed is at
liberty to retract previous to the sowing,
582
And if the proprietor of the ground thus re-
tract, the cultivator is not entitled to any-
thing, 582
The compact is annulled on the decease of
either party, 582
If the proprietor of the ground die when the
crop has appeared, the compact is c is-
solved at the end of that year, 582
But if he die before that, it is dissolved
immediately, 582
The proprietor of the ground may dissolve
the compacts with a view to sell the
ground for the discharge of his debts, 58
But if the crop be growing, the sale must be
delayed until it be ready for cutting, 583
Rules in case of the compact expiring before
the crop is ready to cut, 583
If the cultivator die, his heirs may continue
the cultivation, but are not entitled to
wages, 583
The incidental charges are sustained by the
parties in proportion to their respective
shares, 583
General rules in compacts of cultivation,
584
And of gardening, 584
D.
/
DAR.— See SALE, 294
DATES—
Sale of fresh for dried, 202
DAWEE.— See CLAIMS, 399
DAWBE Hins, 137
DEATH—
Evidence of burial amounts to evidence of,
358
DEATH-BED. — See APPROPRIATIONS, — WILLS,
676, 685
Acknowledgments made on, 437
Sickness.
Rules for ascertaining, 685
DEBT. — See INHIBITION, 530
Acknowledgment of, on death-bed. — See
WILLS, 680
Case of acknowledgment of, 339, 531
Commutation for a, 315
Claim of a, bailed, 321
And bail, difference between, 328
Imprisonment for, 338
Owing from a father to his son, 33O
Cases of claim to, 34h
Owing to an agent, cannot be demanded by
the constituent, 370
Liquidation of, by an agent, 385
Discharge of, by, 391
Compositions for, 448
Right of inheritance in a, 391
Gift of, 489
Difference between a suspended debt and
suspended bail, 328
In a claim for, the evidence of the debtor
proving a discharge must be ere liter',
346
Claim for, — See CLAIMS, 401
Composition of. — See COMPOSITION, 443
Of participated, 450
Release from, 451
Transfer of, 332
Of Hawalit, 332
Defmtion of term, 332
The transfer of a debt, 332
Is rendered valid by the consent of the ere*
ditor and transferee, 332
It exempts the debtor from any demand, 335
Objection, 332
Reply, 332
Unless the transferee deny or become unable
to fulfil his engagement, 332
The transferee has a claim upon the debtor
for what he transfers upon him, 333
Objection, 333
Reply, 333 '
A debtor may transfer his debt upon a pro-
perty in the hands of another person, 333
A transfer may be restricted to what is due
from the transferee to 'he debtor, 333
The loan of money in the manner of Lifitja
is disapporoved, 333
A right of wa*er cannot be sold to pay, 618
Incurred in partnership by reciprocity, &c.
224
Incurred by partnership contracted in sick-
ness, 437
Discharge of, from the estate of a defunct,
437
Partnership in, 450
Owing to a Mczaribat concern, 455
Priority of, 527
Payment of, by the magistrate, 531
by an executor. — See WILLS.
A mussulman cannot pay his, by sale of
wine, 605
INDEX
725
DEBTOR.— See INHIBITION, 530
General rules with respect to, 531
(Insolvant) not subject toZik.it, 2
Insolvency of a, established by a decree of
the magistrate, 4
(Insolvent) bequest by, is void. — See WILLS.
DECORUM. — See INTERCOURSE B&TWEEN THE
SEXES. Observance of, between man and
man, 599
DECREES —
Judicial, must be enforced, 432
Of a dismissed Kazee disputed, 352
In disputes between agent and constituent,
385
DECLARATION. — See SALE, 241
Respecting property when made upon oath
to be credited, II.— See ZAKAT.
Of Zimmees, 12
DEDICATION —
Of English translation, iii
DEEAYAT,— See FINES, 660
DEED—
Suspended in its effect upon the will of God
is null, 347
When a witness may attest the signature of,
3S7
Of Trust.— See DEPOSITS.
Of Gift—See GIFTS.
In itself irreversible, can be retracted after
being executed by compulsion, 323
DEFECT — See SALE. —
\gents may return goods purohised for
them to the seller on account of, .380
DEFENDANT — See CLAIMS —
Difference between, and plaintiff, 400
When oath required of, 401
Refusal to swear, 402 et seq.
Oath cannot be exacted from, in claims
respecting marriage, divorce Alia, bondage,
Willa, punishment, or Laan, 402
In case of inheritance, oath of, must relate
to his knowledge, n07
Swearing of — See CLAIMS, 407
Impeaching plaintiff's witness must appear
to answer to a claim or suit, 364
Required to give bail, assertion of, upon oath,
must be accredited, 404
DEFUNCT —
Bail on behalf of an insolvent, 325
DELIVERY. — See SALE.
DEPOSITS —
Deposits, or Widda, 471
Definition of the terms used in deposit, 471,
A trustee is not responsible for a deposit
unless he transgress with resp ct to it, 471
He may keep it himself, or commit the care
of it to any of his family, 471
But if he give charge of it to a stranger, he
becomes responsible, 472
And so also if he lodge it in a place of
custody belonging to another, 472
He is not made responsible by putting in out
of his own possession with a view to the
immediate preservation of it, 472
He becomes responsible on neglecting to
deliver it on demand, 472
If he mix it inseparably with hit own pro-
perty, he must make the proprietor a
compensation, 472
DEPOSITS — continued.
If the mixture be occasioned by accident, the
proprietor becomes a proportionate sharer
in the whole, 473
If the trustee expend a part, and supply the
deficiency by mixture from his own pro-
perty, he is responsible for the whole, 473
In case of transgression with respect to the
deposit, the trustee is responsible so long
as the transgression continues, 473
If the trustee deny the deposit upon demand
he is responsible in case or the of it,
474
But not if the denial be made to a stranger,
474
A trustee is at liberty to carry the deposit
with him upon a journey, 474
Provided the contract be absolute, the road
safe, and the journey necessary, 474
Unless this be expressly prohibited, 474
In a case of a deposit by two persons, the
trustee cannot deliver to either his share
but in presence of the other, 474
Two persons receiving a divisible article in
trust, must each keep a half, 475
Restrictions are not regarded where they are
repugnant to custom or convenience, 475
Or where they relate to the particular apart*
ment of a house, 175
Where the deposit is transferred to a second
trustee, arid lost, the proprietor receives his
compensation from the original trustee,
476
Case of a claim advanced by two persons to a
sum of money in the possession of a third,
476
DESCENT.— See PARENTAGE.
DETENTION —
Of trove property. 211
DEWAN, 336
DEYIT. — See DEEYAT.
DICE—
Thrown to determine causes, 415
DIRK. 327
DlRMS —
A silver coin, value twopence, 9 n.
Black and white, 224
Various qualities and descriptions of, 432
DISAVOWAL.— See EVIDENCE. — RETALIATION.
DISCHARGE —
Of principal and surety.— See BAIL.
DISMISSAL. —
Of agents, 397
DISPUTES —
In Mozaribat contracts, 4F1
Relative to the price in SharTa. — See SHAFFA.
DISSOLUTION —
Of contracts of hire. — See HIRE, 509
Of contract of sale.— See CLAIMS, 410.—
SALES, 280
DIVISION AMONGST MUSSULMANS—
Causes of, xvi
DIVORCE —
Marriage of an infidel couple is not dissolved
by their jointly embracing the faith, 63
Unless it be a marriage within the prohibited
degrees, 63 %
But if one of them only be converted,
separation takes place, 63
726
INDEX
DIVORCE— continued.
If the conversion of either happen in a
foregin country, separation takes place upon
the lapse of the woman's term of probation,
65
If the wife be an alien, she is not to observe
an edit from separation in consequence of
her husband's conversion, 65
The conversion of the husband of a Kitabee
does not occasion separation, 65
Case of a convert removing from a foreign
land into a Mussulman territory, 65
A women entring from a foreign to a Mus-
sulman country, is at liberty to marry, 66
But if pregnant, she must wait until her
delivery, 66 i
In the case of apostasy, separation takes
place without divorce, 66 j
But if man and wife apostatize together, their '
marriage still continues, 66 i
Chapter I.
Of Talak al sonna, or regular Divorce, 72 j
Distinctions of, 12. \
Talak absan. or most laudable, 72
Talak Hoosn or laudable, 72
Talak Biddat, or irregular divorce, 73
Points to be attended to in adhering to the
•oona, 73
Mode of adhering to the sonna in repudiating
a wife not subject to the courses, 72
Or one who is pregnant, 7*
Case of, pronounced during menstruation, 74
Of the persons who are competent to pro-
nounce, 75
Pronounced by compulsion is effective, 74
Or in a state of inebriety, 76
Of a dump person, 74
Number of, in respect to free woman and
slave, 76
A master cannot, the wife of his slave, 76
Chapter II
Of the execution of, 76
The manner of express, 76
Different formulas of express, 77
Divorce, when applied to any specific part or
member of the body ; such as does not (in
common use) imply the whole person, is
of no effect, 77
A partial divorce is complete in its effect,
77
Equivocal, 77
An indefinite form, 77
With reference to place, 78
Of, with reference to time, 78
Separation takes place upon either party be-
coming possessed of the other as a slave, 80
Or when a husband purchasing his wife, 80
Of a wife (being a slave), when suspended
upon the emancipation of her owner, takes
place upon the occurrence of the condition,
81
Of, by comparison, and several descriptions of
it, 81
The number of, may be determined bv signs
made with the fingers, 81
But not unless it be expressed with relation
to number, 82
Pronounced with an expression of vehemence
rreversible in its effect, 82
DIVORCB— continued. m
To whom pronounced with a simile, 83
Of, before cohabitation, 85
Three take place on an unjoined wife when
they are pronounced together, but only the
first when they are pronounced separately,
83
In implied, 83 . ...
—are three forms which effect an irreversible
84 ...
seventeen which effect an irreversible,
84
Chapter II.
Of delegation of, 87
Definition of the phrase, S7
Section I.
Of Ikhtiyar, or Option, 87
Delegation by option confers on the wife
a power of divorcing herself ; but this right
of option is restricted to the precise place or
situation in which she receives it,
87
And is annulled by her removal, 87
Intention on the part of the husband is
requisite to constitute a delegation, 87
Under this form a single divorce only takes
place, whatever may be the intention, a 3
And to effect, it is requisite that the personal
pronoun be mentioned by one or other of
the parties, 88 .
That is*, either by the husband, in his de-
claration, 88
Or by the wife in her reply, 88
Takes place, although her option of it be
expressed in the Mozaree or common tense,
88
Where the husband gives a power of option
thrice repeated, and the wife make only a
single reply, yet three divorces take place
from it, independent of the husband's
intention, 88
Where the word, is mentioned by the hus-
band, the, which follows is reverible, 89
Section II
OfAmir-ba-Yedt or Liberty :—
In the delegation of liberty, takes place
according to the number mentioned by
the wife, independent of the husband's
intention, and the, which follow is irrever-
sible, 89
Delegation of liberty may be restricted to
a particular time, or to several different
specified periods of time, 89
Objection, 89
Reply, 89 . .
, And it is not annulled by the wife's rejection
! of it, until the time or time mentioned
j be fully expired, 89
i The time of it may be fixed for the occurrence
i of any specified event, 90
' It is not annulled by delay (where there is
no specification of time), nor until the
i wife rises from her seat, &c., 90
But it is annulled on the instant of her rising
I from her seat, 90
' It is not annulled by a change of posture
i from a more active to a more quiescent
' position, 90
INDEX.
727
DIVORCE — con tinned.
A wife may signify her wish to consult her
friends without prejudice to her right of
option.
Section HI.
OfMasheeat, or Will :—
Where a man empowers his wife to, herself
in express terms, the, which follows is
reversible, 91
Although her reply be expressed in the form
of an irreversible. 91
Her power, when thus granted, cannot be
retracted, 91
The power may be granted generally, 92
A wife empowered to give herself three
divorces, may give herself one, 92
But when empowered to give herself one, she
cannot give three, 92
Where the wife's reply disagrees with the
husband's declaration with respect to the
nature of the, it takes place according to
his declaration, not according to her reply,
92
When the power is conditional upon the
pleasure of the wife it is annulled by her
reply, and is according with the husband's
declaration, <?2
And also by her suspending her will upon
that of her husband, 93
When the power is expressed with an un-
restricted particle (in respect to time), it
is perpetual, extending to all times and
places, 93
But not when it is expressed with an un-
restricted particle in respect to place, 93
Chapter IV.
Of, by Yameen, or Conditional Vow, 94
Definition of Yameen with respect to, 91
Pronounced with reference to a future mar-
riage, takws place upon the occurrence of
such marriage, 94
Or upon the occurrence of any other circum-
stance on which it may be conditionally
suspended, 9>
Provided it be pronounced during an actual,
or with reference to an eventual, pop-
session of authority, 95
Objection, 94
Reply, 95
Five conditional particles of various effect, 95
A conditional vow of, is not annulled by the
extinction of property, 95
Case of a dispute between the parties con-
cerning the occurrence of the condition,
96
Objection, 96
Reply, 96
Rule in case of, suspended upon the courses,
96
Case of a man first procuring a conditional
divorce and then repudiating his wife by
two express divorces, 97
Or by three express divorces, 93
Case of, suspended upon carnal connexion
with wife, 98
O//ftisna, that is, Reservation or Exception
99
With a reservation of the will of God, does
not take place, 99
DIVORCE— con mued.
Unless it be renounced with a pause
between the, and the reservation, 99
Objection, 99
Reply, 99
Pronounced with an exception in point of
number, takes place accordingly, 99
Chapter V.
Of the Divorce of the Sick : —
A wife divorced by a dying husband inherits
if he die before the expiration of her
Edit, 99
Unless she be divorced at her own request,
or by her own option, or for a compensa-
tion, 100
In case of any possible collusion between the
parties, by the husband, after a declared,
acknowledging himself indebted to her, or
bequeathing her a legacy, she receives
whatever may be of least value, inheri-
tance, debt, or legacy, 100
Pronounced in a situation of danger, cuts off
the wife from her inheritance, unless the
danger be imminent or certain, 101
A conditional, pronounced in sickness, does
not cut off the wife from her inheritance,
unless the condition be her own act, 101
Objection, 102
Replv, 102
Provided that act be of an avoidable nature,
102
Where recovery intervenes between a sick-bed
and the dtath of the husband, the wife is
cut off from inheritance, 102
And so also where her apostacy intervenes,
102
But not where her incest intervenes, 10
Occasioned by the slander of a dying husband
does not cut off the wife from her inheri-
tance, 103
And so also of a death-bed, occasioned by
Aila, 103
Where a death-bed, is reversible the wife in-
herits in every case, 108
Chapter VI.
Of Rijaat, or returning to a divorced wife, 103
Definition of Rijaat, 103
A man may return to a wife repudiated by
one or two reversible divorces, 103
Provided he do so before the expiration of
her Edit, 103
Rijaat is of two kinds, express and implied,
103
The evidence of witnesses to Rijaat laudable,
but not incumbent, 104
The wife should have due notice of it, 104
A declaration of previous Rijaat, made after
the declaration of the Edit, is to be credited
where both parties agree in it, 104
But not where they disagree, 104
The declaration of a wife who ia a slave must
be credited respecting the termination of
her Edit, 104
At what time the power of Rijaat terminates,
105
A husband may take back an unenjoyed
divorced wife, provided she be delivered of
a child within such a time as establishes
its parentage in him, 106
728
INDEX
DIVORCE— continued.
A man acknowledging that he had never
consummated with his divorced wife has
no power of Rijaat, although he have been
in retirement with her, 106
Rijaat may be established by the birth of a
child, 106
A woman under reversible, may adorn
herself, 107
A man must not approach a reyersibly
divorced wife without giving her intima-
tion, 107
A divorced wife cannot be carried upon a
journey until Rijaat be established, 107
Cohabitation is not made illegal by a re-
versible, 107
Of Circumstances which render a divorced Wife
unlawful to her Husband, 107
A man may marry a wife repudiated from
him by one or two irreversible divorces,
107
Objection, 107
Reply, 107
But if by three divorces, he cannot marry her
until she be previously married to another
man, 108
Nature of the consummation in the second
marriage which renders a divorced wife
lawful to her first husband, 108
The second marriage, when contracted under
a legalizing condition, is disapproved ; yet
the woman is rendered legal by it to her
first husband, 108
The first husband, recovering his wife by an
intervenient marriage, recovers his full
power of, over her, 109
The wife's declaration of her having been
legalized is to be credited, 109
Chapter VII.
O/Aiia, 109
Definition of, 109
The mode in which Aila is to be established,
109
In breach of Aila expiation is incumbent,
109
But if it be observed, a, irreversible ensues
at its termination, 109
A vow of abstinence for a term short of four
months does not constitute Aila, 110
A vow of abstinence, under a penalty
annexed, constitutes an Aila, III
Aila holds respecting a wife unc er reversible,
111
But drops on the accomplishment of her
Edit, 111
An Aila made respecting a woman before
marriage is nugatory, 111
An AiU made respecting a wife at a distance |
may be orally rescinded, 112 j
An equivocal expression of divorce takes |
effect according to the husband's inter- '
pretation of his intention, 112
Chapter VIII.
Of Khoola, 112
Definition, 112
Reasons which justify Khoola, or, for com-
pensation, 112
Which occasions a single irreversible, 112
DIVORCE— -continued.
The wife is responsible for the compensation,
113
Difference between a wife requiring Khoola
in lieu of an unlawful article, and re-
quiring, in lieu of the same in express
terms, 1 13
The compensation for Khoola may consist of
anything which is lawful in dower, 114
Case of Khoola required in lieu of property
unspecified, 114
Case of Khoola in lieu of an absconded
slave, 114
Cases of Khoola granted for a specific sum,
114
A proposal of Khoola made to the wife, with
a reserve of option to the husband, is
invalid, 115
The assertion of the husband respecting
Khoola is to be credited, 115
A mutual discharge leaves each party without
any claim upon the other, 1 16
Khoola entered into by a father on behalf of
an infant daughter is invalid, 116
Unless he engage to hold himself responsible
for the compensation, 116
Or refer it to his daughter's consent, 116
Chapter IX.
Of Zihar, 117
Definition, 117
Zihar prohibits carnal connexion until expia-
tion, 117
Nature and duration of Zihar, 117
If the prohibition occasioned by Zihar be
violated, yet no additional penalty is in-
curred, 117
Zihar cannot occasion, 1 17
Zihar is established by a comparison with
any part of the body which implies the
whole person, 117
A general comparison takes effect according
to the husband's explanation, 118
And thp same of a comparison in point of
prohibition, 118
Zihar has no effect upon any but a wife,
118
Objection, 118
Reply, 118
Zihar collectively pronounced takes place upon
every individual to whom it is addressed,
119
Of Expiation : —
A Zihar may be expiated by the emancipation
of a slave, &c., 119
The emancipation of a slave of any descrip-
tion suffices, 11(>
Unless such vlave be defective in one of his
faculties, 119
The emancipation of a deaf slave suffices,
119
But not that of one who has lost both his
thumbs, 120
Or who is insane, 120
Unless it be an occasional insanity only, 120
Nor of a Modabbir, or Am-Walid, or Mo-
katib, who has paid part of his ransom,
120
That procured for a parent or child suffices,
120
INDEX
729
DIVORCE — continued.
But not that of a share in coparcenary slave,
120
The partial emancipation of a sole share
(when followed by the emancipation of the
remainder) suffices, 120
But not if carnal connexion take place be-
tween the two emancipations, 120
Zihar may be expiated by fasting two months,
121
But if carnal connexion take place during |
the fast, it must be commenced de novo, j
121
Fasting the only mode in which a slave can !
expiate Zihar, 121 j
Zihar may be expiated by the distribution of '
alms, 121
Carnal connexion during expiation by alms j
does not require that the alms be distri-
bated anew, 122
Chapter X. i
Of Laan, or Imprecation, 123 }
Definition, 123
A man accusing his wife of whoredom must I
verify his charge by an imprecation, 123 I
Conditions .under which an imprecation is
incumbent, 123 '
Objection, 123 I
Reply, 123 i
Not incumbent upon slaves or infidels, 123 |
Nor, where the wife is a slave, an infidel, or ,
a convicted slanderer, 124 ;
Objection, 124 j
Reply, 124 i
Nor where both parties are convicted slan-
derers, 124
Form of imprecation and manner of making
it, 124
When both parties have made imprecation,
a separation takes place, 124
The husband, on receding from his impre-
cation, may again marry his wife, 125
Imprecation occasions a decree of bastardy,
125
A husband receding from imprecation must
be punished for slander, 125
Imprecation not incumbent where the hus-
band or wife is an idiot, or an infant,
125
Or where husband is dumb, 125
Or where the accusation is indirectly in-
sinuated, 126
Imprecation made posterior to the birth of a
child does not effect that child's descent,
126
Chapter XI.
Of Impotence, 126
An impotent husband must allow a year's
probation, after which separation takes
place, 126
And the wife retains her whole dower, if the
husband should ever have been in retire-
ment with her, 126
But the wife's claim of separation may bt
here defeated by the husband swearing that
he had enjoyed her, 127
Rulei to be observed at the expiration of tht
year of probttton, I?7
DIVORCE— continued
The year of probation to be calculated by the
lunar calendar, 127
A husband cannot annul the marriage, where
the defect is on the part of the wife, 12S
A wife cannot sue for a separation on the
ground of the husband being leprous, 128
Scrophulous, or insane, 128
Chapter XII.
Of the Edit, 128
Definition, 128
Edit of, of a free woman is three menstrua-
tions, 128
Of one not subject to course, three months,
122
Of one who is pregnant, the term of her tra-
vail, 128
That of a slave is two menstruations, 128
And of one not subject to courses, one month
and a half, 128
Edit of widowhood, 129
after, 129
A female slave emancipated during Edit
must observe the Edit of a free woman,
129
Rule of Edit of a woman past child-bearing
129
in an invalid marriage, 129
Edit of an Arn-Walid. 130
of the widow of an infant, 130
of a menstruous woman, 130
of a divorced woman who has connexion
with a man during the ferm of her Edit,
130
Of a woman who adults man during
her Edit of widowhood, 131
of a widow or a divorced wife may be
accomplished without her knowledge, 131
from an invalid marriage, 131
A woman's oath confirms the accomplishment
of her Edit, 131
Case of a woman re-married after divorce and
again repudiated, 131
Of Hidad, or Mourning, 1 32
Definition, 132
Mourning is incumbent on the death of a hus-
band, 132
AUhought he die during the wife a Edit from
irreversible, 132 t
Mourning not incumbent upon inhdeL womer
or infants, 133
But incumbent upon staves, 133
Nor upon Am-Walids, nor upon widows from
invalid marriage, 133 .
Proposing for a woman during her Edit is
disapproved, 133
Rules for the behaviour of woman dunnj
Edit, 133
A wife under irreversible, must be accommo
dated with a seprate apartment, 133
Rules respecting a wife divorced upon a jour
ney, 134
Chapter XIII.
Of the Establishment of Parentage, 134
A child born after six months from the dat
of a marriage upon which is suspended s
conditional, is the lawful offspring of sud
marriage, 134
13*
730
INDEX
DIVORCE — continued.
Reply, 134
The parentage of child born two years after
reversible, is established in the divorce,
134
And so also of a child born within two years
after triplicate or irreversible, 1 15
And to likewise of a child born of a wife ]
under ace, within nine months after either '
reversible or irreversible, 135
And so also of a child born within six months t
after the wife declaring her Edit to have |
expired, .3j
Whatever be the occasion of the Edit, 136
The birth must be proved by evidence, 136
The parentage of a child born of widow,
when uncontroverted, is established in her
decreed husband, independent of evidence,
136
A child born within less than six months after
marriage is not the offspring of that mar-
riage ; but if after six months, it is so,
independent of the husband's auknowledg- j
ment, or upon the evidence of one witness j
to the birth where he denies it ; and Laan j
is incumbent if he persist in his denial ; !
and the wife's testimony is to be credited j
in respect to the date of the marriage, 136 ]
Suspended upon the birth of& child cannot
take place on the evidence of one woman
to the birth, 137
The term of pregnancy is from six months to j
two years, 137
Case of a man divorcing a wife who is a slave i
and then purchasing her, 137 ,
Miscellaneous cases, 137 j
Chapter XIV. !
Of llizanit , or - th* Care of Infant Children, \
138 j
In case of separation, the care of the infant j
children belongs to the wife, 138 '
Order of precedence in Hizanit after the
mother, 138
In defect of the maternal, it rests with the ;
nearest paternal relative, 138
Length of the term of Hizanat, 139
A slave has the right on attaining her free-
dom, H9
And also an infidel mother the wife of a Mus-
sulman, 139
Children, after the term of Hizanit, remain
soley under the care of the father, 139
The mother cannot move with her children |
to a strange place, 139 |
Chapter XV.
OfNijkha, Maintenance, 140
Of Nifkaofwife, 140
The subsistence of wife is incumbent upon
her husband, 140
In proportion to the rank and circumstances i
of the parties, 140 j
And this, although the withhold herself on :
account of her dower, 141
But not if she be refractory, 141
Or an infant incapable of generation, 141
But it ia<*ue to an adult wife from an infant
hus>and, 141
It™ not due where the wife is imprisoned I
for debt, 141
DIVORCE- -continued.
Or forcibly carried off, 141
Or goes on a pilgrimage, 141
Unless she be accompanied by her husband,
141
It continues during her sickness, 141
Husband must maintain his wife's servants,
I 142
I If the husband be poor, the magistrate must
empower the wife to raise subsistence upon
his credit, 142
At a certain specified rate, 142
To be varied according to any change in his
circumstances, 142
Arrears of maintenance not due unless the
maintenance have been decreed by the
Kazee at the rate previously determined
on between the parties, 142
At rears of a decreed maintenance drop in
the case of the death of either party, 143
Advances of maintenance cannot be re-
claimed, 143
A slave may be sold for the maintenance of
his wife u the latter be free, 143
A husband must maintain his wife, being a
slave, where she resides with him, 143
And the same of Am-Walids, 143
A wife must be accommodated with a sepa-
rate apartment, 143
But under the control of husband with re-
spect to visitors, 144
Maintenance of the wife of an absentee is
decreed out of his substance, 144
Objection, 144
Reply, 144
Unless that be of a nature different to what
is necessary for her support, 144
But she must give security that she has not
already received anything in advance, 144
It can be decreed only to the wife, infant
children, or parents of the absentee, 145
No decree can be issued against an absentee's
property upon the bare testimony of his
wife, 145
Divorced wife is entitled to maintenance
during her Edit, 145
No maintenance due to widow, 145
Nor to a wife in whom separation originates,
145
Unless it originate in a circumstance not
criminal, 146
A wife who apostatizes has no right to main-
tenance, 146
A father must provide for the maintenance
of his infant children, 146
A mother is not required to suckle her infant,
146
Except where a nurse cannot be procured,
H6
A father must provide a nurse, 146
But he cannot hire the child's mother in
that purpose, 146
Yet he may hire any other of his wives for
that purpose, 146
Or the child's mother after the expiration of
her Edit, 146
Difference of religion makes no difference as
to the obligation of furnishing maintenance
to i wift or child, 146
INDEX
731
DIVORCE— continued.
Maintenance of children incumbent on the
father only where they possess no indepen-
dent property, 147
A man must provide maintenance for his in-
digents parents, 147
Difference of religion forbids the obligation
to the maintenance of any relations except
a wife, parents, or children. 147
And to those also it is not due if they be
aliens 147
Chiistian and Mussulman brothers are not
obliged to maintain each other, 147
The maintenance of a parent is exclusively
incumbent on the child, 147
Maintenance to other relations besides the
wife, parents, or children, 147
A father and mother must provide a mainte-
nance to their adult daughters, but also
to their adult sons who are disabled, in
proportion to their respective claims of
inheritance, 148
Sisters must furnish maintenance to an indi-
gent brother in the same proportion, 148
A poor man is not required to support any
of his relatives except his wife or infant
children, 148
Definition of rich, 148
Maintenance to the parents of an absentee
may be decreed out of his effects, 148
The parents of an absentee may take their
maintenance out of his effects, but a
trustee cannot provide it in that manner
without a decree, 149
Arrears not due in a decreed maintenance,
149
Unless where it is decreed to be provided
upon the absentee's credit. 149
Maintenance of slaves incumbent on their
owners, 149
Of Vows in — See Vows, 166
Case of a vow of, indefinitely expressed,
169
Suspended upon the not selling of a slave j
takes place on emancipation or Tadbeer, :
170
A vow of general, in reply to a wife charging
her husband with bigamy, takes place upon
her in the same manner as upcn the rest,
170
If a man apostatize during intoxication, his
wife is not thereby divorced from him, j
197
Witnesses retracting their evidence to, be-
fore consummation, are liable for half the
dower, 874
In case of joint agents for gratuities, 391
Oath cannot be exacted from defendant in
claims respecting, 402
Claim founded on, before consummation en-
titles wife to her half dower, if husband
decline swearing, 403
Case of compelled, 523
Doa.— See SALE, 309. —HUNTING, 624
Liability for damage done by.— See FINES,
668
DOWER. — See MARRIAGE.
Case of a woman contracting herself in mar-
riage on an inadequate, 41
DOWER — continued.
Of a father contracting an infant on a dis-
proportionate, 41
Marriage without, is valid, 44
The lowest amount of, 44
Wife entitled to whole, on consummation or
death of husband, 44
To one half, upon divorce before consumma-
tion, 45
Where none stipulated in the contract, 45
Where stipulated after marriage, 45
Addition made after marriage, 45
Wife may remit, 44
In case of retirement, 45
Case of retirement with eunuch, 46
Where it consists of effects, 49
Of property unidentified, 50
Of unlawful articles, 51
Of false asses ment, 49
In case of invalid marriage dissolved before
consummation, 52
In case of consummation, 53
Rate of Mihr Misl, or proper, 53
A woman's guardian may become surety for
her, 54
Objection, 54
Reply, 54
Woman may resist consummation until paid
the prompt proportion of, 54
Unless the whole be deferable, 54
She may also resist a repetition, 54
But she is, notwithstanding, entitled to her
subsistence, 54
The husband obtains full authority over his
wife upon payment of her, 55
Cases of dispute between the parties con-
cerning the amount of, 55
Or between one of the parties, and the heirs
of the other, 56
Or between the heirs of both parties, 56
The heirs of the deceased wife may take the
amount of the specified, out of the deceased
husband's property, 56
Case of a dispute concerning articles sent by
a husband to his wife, 56
Of, of infidel subjects, and of aliens, where
none has been stipulated, or where it con-
sists of carrion, 57
Of dower of infidel subjects, where it consists
of wine or pork, 57
Slave might be sold for discharge of his wife's
58
Modabbir or Mokatib to discharge, by labour,
58
Objection to the, in a case of invalid mar-
riage contracted by a slave at the desire
of his owner, 59
Objection, 59
Reply, 59
An owner slaying his female slave before
consummation has no claim to her, 60
The, of a free woman is due, although she
skill herself before consummation, 61
Case of a man marrying a female slave with-
out her owner's consent, 61
Case of a father cohabiting with the slave of
his son, 62
732
DOWER — continued.
Case of a son contracting his female slave in
marriage to his father, 62
The marriage of a free woman with' a slave
is annulled by her procuring his emancipa-
tion, 62
Objection, 63
Reply, 63
In the case of one of two wives suckling the
other, 71
Of evidence to proper, 374
Witnesses retracting their evidence to divorce
before consummation are liable for half
the, 374
Claim founded on, before consummation,
entitles wife to half, where husband de-
clines swearing, 403
Credit due in case of husband and wife dis-
agreeing respecting, 411
Right to water cannot be assigned as, 61$
DRAINS. — See WATER-COURSE
Rules with regard to digging, &c., 616
DRAW-WELL —
Description of, and partnership in a,
DRESS.— See ABOMINATIONS, 597
Laws concerning, 597
DRINKING.— See ABOMINATIONS, 595
Vows respecting, 158
DRIVERS—
Liability for accidents committed by — See
FINES.
DRUNKENNESS—
Testimony of, 361
DUMB—
Imprecation not incumbent where husband,
125
DUMB PERSON —
Bequests by, 707
The intelligible signs of, suffice to verify his
bequests and render them valid, but not
those of a person merely deprived of speech,
607
May execute marriage, divorce, purchase,
or sales, and sue for or incur punishment
by means of either signs or writings, but
he cannot thereby sue for or incur retalia-
tion, 707
DUNG.— See ABOMINATIONS, 603
Sale of.— See SALE.
DUTIES OF KAZEE. — See KAZEE.
E.
EATING. — See ABOMINATIONS, 595
EDIT.— See DIVORCE, 128
Definition of, and rules respecting, 30, 46,
128
Maintenance of wife during, 145
EGGS, 261
EIMAN OR Vows, 150
ELEPHANT, 271
EMBRYO (in the^womb) —
Acknowledgment in favour of, 429
ENDOWMENT. — See APPROPRIATIONS.
With right of property, such as gift must
operate immediately, 323
INDEX.
ENLARGEMENT FROM BALL, 323
ENTERTAINMENTS TO A MAGISTRATE, 337
EQUALITY.— See MARRIAGE, 39
ERRONEOUS CARNAL CONNEXION, 182
ESTATE —
Division of, among heirs and creditors, 348
Inheritable division of, 565
EUNUCH —
Testimony of an, 363
Case of retirement of wife with, 46
EVADER —
In marriage definition of, 101
EVIDENCE — See WILLS, 703— WHOREDOM, 188
Is incumbent upon the requisition of the
party concerned, 353
It is not obligatory in case inducing corporal
punishment, 353
Unless it involve property, when the fact must
be stated in such a way as may not occasion
punishment, 353
Required in whoredom is that of four men,
353
In other criminal cases, two men, 353
And in all others matters, two men, or one man
and two women, 353
Objection, 354
^ Reply, 354
The, of wonun alone suffices concerning mat-
ters which do not admit the inspection of
men, 354
It is not admitted to prove that a child was
live-born further than relates to the rites
of burial, 355
The probity of the witness and his msntion
of the term, are essentials, 2~5
The apparent probity of the witness suffices,
excepting in cases producing punishment or
retaliation, 355
If, however, their probity be questioned, a
purgation is required, 356
Nature of a secret, 335
And an open purgation, 3o6
Justification of a witness by the defendant,
356
A slave may be a purgator in the secret pur-
gation, 357
Is of two kinds, that which occasions effect to
itself, 357
And that the effect of which rests upon other,
357
The signature to a deed must not be attested,
unless the witness recollect the circumstance
of signing it, 357
Cannot be given on hearsay, except to such
matters as admit the privacy only of a few,
357
And it must be given in an absolute manner,
358
To the burial of person amounts to, of his
death, 358
A right of property may be attested from
seeing an article in the possession of
another, .158
The right of property in a slave may also be
attested on the same ground, 359
Chapter II.
Of Acceptance and Rejection of Evidence, 359
The, of a blind man is inadmissible, 359
INDEX.
733
EVIDENCE — continued.
And if a person give, and become blind, a
decree cannot issue upon it, 359
Of a slave is inadmissible, 360
Or of a slanderer, 360
But infidel slanderer recovers his compe-
tency as a witness upon embracing the
faith, 3bO
Is not admitted in favour of relations within
the degree of paternity, 360
Nor between a husband and wife, a master
and his slave, a hirer and a hireling, 360
The testimony of a master cannot be admitted
in favour of his slave, 361
Nor of one partner in favour of another
relative to their joint concern, 361
In favour of an uncle or brother is admitted,
361
Hut of public mourners or singers is not ad-
mitted, 361
Or of common drunkards, or of falconers,
&c., 361
Or of atrocious criminals, 362
Or of immodest persons, 362
Or of usurers or gamesters, 362
Or of persons guilty of indecorum, 362
Or of free-thinkers, if they avow their senti-
ments, 362
The, of the sect of Hawa and another heretics
is admissible, but not that of the tribe of
Khetapia, 362
Objection, 363
Reply, 363
A Moostamin cannot testify concerning a
Zimmee, but a Zimmee may concerning a
Moostamin, 363
Moostamins may testify concerning each
other, being of the same country, 363
The testimony is admissible of one whose
virtues predominate, 363
And of such as remain uncircumcised from
any justifiable cause, 363
Or of a eunuch, 363
Of a bastard ,363
Of a hermaphrodite, 363
Of a viceroy, 363
Two brothers attesting their father's appoint
ment of an executor must be credited, if
the executor verify their testimony ; and
the same of the attestation of two legatees,
two debtors or creditors, or two executors,
to the same effect, 363
Objection, 364
Reply, 364
Attestation to a person's appointment of an
agent is not to be credited, 364
A defendant's impeachment of the integrity
of witnesses is not credited unless he
state their commission of some specific
crime 364
Or adduce, to the plaintiff's acknowledgment
of their irregularity, 3 >4
He is not allowed to adduce, of their .being
hired by the plaintiff, 364
Unless his own property be involved, 364
A witness's immediate acknowledgment of
mis-statement or omission, from apprehen-
sion, does not destroy his credit, 364
E VIDENCE— continued.
Chapter III.
O/ Disagreement of Witness in their Testi-
mony, 365
Evidence repugnant to the claim cannot be
admitted, 365 *
The witnesses must perfectly agree in their
testimony, 365
The wi nesses may be credited to the smallest
amount in which they agree both in words
and meaning, 3f>5
The, of a witness who attests a lager sum
than the claim amounts to is null, 366
To a debt is not annulled by a subsequent
declaration of part of the debt having been
discharged, 3<>(:>
The, of witnesses who agree with respect to
fact and time, but differ with respect to
place must be rejected. %fi
To the theft of an animal is not annulled by
a difference between the witnesses with
respect to the colour, but it is so by a
difference with respect to the sex, 366
To prove a contract is annulled by any diffe-
rence with respect to the terms of the con-
Jtract, 367
Except in regard to a woman's dower, when
she is entitled to the smallest sum testi-
fied, 368
Chapter IV.
Of Evidence i elating to Inheritance, 368
Must be adduced to prove the death of the
inheritee and the right of the heirs, before
inheritance can take effect, 308
An heir may recover an article in possession
of another by proving it to have been the
property of his inheritee, or a loan to de-
posit from him, 369
The riyht to an article is not established by,
of the former possession of it, 369
Unless the defendant acknowledge such
former possession, 369
Or two witnesses attest his having made such
acknowledgment, 369.
Chapter V.
Of the Attestation of Evidence, 369
Attestation of, is admitted to all matters not
liable to be affected by doubt, 369
The attestation of the same two witnesses
suffices to prove the, of t vo, 370
But the, of each must be attested by the two
respectively, 370
The attestation must be at the desire of the
primary witness, who must state the terms
of his testimony to the attesting witness,
370
Form of an attestation, 370
A person cannot attest the attestation of
another, unless that other desire him to do
so,370
Attestation is admitted only in case of the
death (at a distant place) or sickness of
the primary witness, 370
The attesting witnesses may app**r as
purgators on behalf of the primary wit-
nesses, 371
But their not doing so does not affect the
which they attest, 371
734
INDEX
EVIDENCE— continued.
The denial of the primary witnesses annuls
the attestation, 371
If the attesting witnesses have not a 'clear
personal knowledge of the defendant, the
identity must be proved by other witnesses,
371
And so also with respect to the limits of the
claim, 371
The identity of a person affected by a Kazee's
letter must be proved, 3/1 i
A false witness must b<» stigmatized, 372 [
The mode of stigmatizing, 372
Of Retraction of Evidence, 372
Retracted before a decree, is void, 372
But not if retracted after a decree has passed,
372 !
It must be made in open court, 372 j
Witnesses retracting their testimony after a !
decree has passed must make a compensa- |
tion to the suffering party, 373 !
Provided the decree have been actually en-
forced against him, 373 !
If one witness thus retract, he atones fora
moiety of the damage, 373
And the same of any number who may
retract, where one witness perseveres in j
his testimony, 373
Gases of retractation where the witnesses con-
sist of males and females, 373 j
The retractation of, to a marriage and proper
dower does not subject the retractors to
any responsibility, 374
The retraction of, to a sale does not occasion
responsibility, unless a price had been
attested short of the value, 374
Witnesses retracting their to divorce before \
consummation are liable for half the |
dower, 374
Witnesses retracting their, to manumission !
aie liable for the value of the slave, 374 i
Witnesses retracting in a case of retaliation,
375
Secondary witnesses retracting their attesta-
tion are responsible for the damage ; but
the primary witnesses are not responsible if
they retract or disavow, 375
Case of retraction by both primary and
secondary witnesses, 375
The secondary witnesses asserting the false-
hood or error of the primary witnesses is
of no effect, 376
Purgators receding from their justification are
responsible, 376
Case of retractation in suspended manumission
or divorce, 376
EVIDENT DISADVANTAGE —
In purchase and sale, 389
EXCEPTION —
In acknowledgments, 429
EXCHANGE.— See BARTER.— SALE, 248
Of precious metals. — See SIRF SALE.
EXCREMENT.— See ABOMINATIONS, 603
EXECUTORS —See WILLS, 697
Acts of, are valid without any formal notifi-
cation of his appointment, 350
f loss be incurred by, acting under Kazee's
orders, is indemnified by the creditors,
351
EXECUTORS — continued.
Two brothers attesting their father's appoint-
ment of, 36 i
So where the attestation is by two legatees,
363
So by two debtors or creditors, 363
Powers of, and general rules respecting. — See
WILLS.
EXPIATION —See DIVORCE, 119. — Vows, 150,
153
F.
FACTOR. — See AGENT, MANAGER.
FAKEER —
Definition of, 19
FAKHIZ, 372
FALCONERS —
Evidence of, 361
FALOOS —
A fluctuating copper coin, 220
Purchase and sale of, 290
FALSE WITNESS —See EVIDENCE. — WITNESS.
FARASANG —
A land measure, 303
FARMING.— See CULTIVATION OF GARDENING.-
LANDS, CULTIVATION OF.
FARREERS —
FASAK, 334
FASTING— See DIVORCE, 121. — Vows, 171
Mode of expiating Zihar, 117
FATAVEE SHAFEI, xxix
FATAVEE KAZEE KHAN, xxix
FATAVEE TIMOOR TASHEE, xxix
FATAVEE IMAM SIRRUCKHSH, xxix
FATHER. — See MARRIAGE. —
Cannot be imprisoned for maintenance of
son, 339
Must provide for the maintenance of his
infant children, 146
And a nurse, 146
But cannot hire the child's mother, 146
And mother must provide maintenance to
their adult daughters, and also to adult
sons who are disabled, in proportion to
their respective claims of inheritance, 148
Privileges of, with respect to child's property,
343
Evidence of, in regard to his child, 361
Acknowledgment by, to child's prejudice,
395
Power of, with respect to pledging his child's
goods, 639
Contracting infant, child in marriage, and
disproportionate dower, 41
FAZOOLEE. — See COMPOSITIONS, 446
Marriage contracted by, 42
FAZOOLEE BEEA —
Or sale of property of another without his
consent.— See SALE, 296
FEEAR —
Definition of, 20
FINDER —
Of Trove property, 208
FINES —
Leving of, 670
INDEX
730
FINES— continued. i
Of Nuisances placed in the Highway, 660 j
Buildings or timbers placed in or projecting |
over the highway may be removed by any |
person whatever, 660 j
They cannot be erected or set up in a closed |
lane without the consent of the inhabi- j
tants, 660 |
A person erecting a building &c., in the i
highway incurs a fine for any person, 660
Or number of persons it may occasion the
destruction, 660
Of death occasioned by the fall of a house,
660
A person having fixed up a nuisance upon his
house, is responsible for any damage it
may occasion even after he has sold the
house, 661
A person laying fire in the highway is respon-
sible for anything that may be burned in
consequence, 661
Workmen constructing a nuisance are respon-
sible for any accident it may occasion before
their work be finished, 661
A person is responsible for any damage }
occasioned by his throwing water in the |
highway, 661
Unless the person who sustained such damage|
wilfully passed over such water, 661
The person who directs water to besprinked
in the road is responsible for accidents,
662
Of a person digging a well, or laying a stone,
in the highway, 662
Or throwing dirt or digging a hole in the
highway, is the same as placing a stone
there, 662
The remover of a nuisance to another spot
incurs responsibility for any accident it
may afterwards occasion, 662
There is no responsibility for accidents occa-
sioned by a sewer constructed in the high-
way by public authority, 652
A person digging a well in his own land is
not responsible for any death it may >
occasion, 662 '
A person falling into a well, and there dying i
of hunger, does not occasion responsibility, \
662 , :
Workmen employed to dig a well in another's!
land are not responsible for accidents |
unless they be aware of the trespass, 662
The builder of a private bridge, &c., is not
responsible tor any life which may be lost
in passing over it, 663
A porter is responsible for accidents oc-
casioned by his load, 663
A stranger hanging up a lamp, or strewing
gravel, &c., in a mosque, is responsible
for any acci dents which may arise there-
from, 663
But he is not responsible for accidents occa-
sioned by his own person, 663
Of Buildings which ate in danger of Falling,
663
The owner of a ruinous wall is responsible
for any accident occasioned by it after
having received due warning and requisi-
tion to pull it dawn. 664
FINES --continued.
A person building a crooked wall is respon-
sible for the damage occasioned by its
falling, 664
The requisition is established upon the
evidence of one man and two women, 664
A Zimmee may make it, as well as a Mussul-
man, 664
Or the inhabitants of a neighbouring house,
664
And if these last grant a term of delay it
is valid, 66*
A person selling a ruinous house, after re-
quisition, is not responsible for any ac-
cidents it may occasion, 665
The requisition must be made to a person
capable of complying with it, 665
If made to one of several coparceners, affect
him in particular, 665
After a wall falls it is the duty of the owner
to remove the ruins ; and failing of this,
he is responsible for subsequent accidents,
665
The owner of a ruinous wall is nut respon-
sible for accidents occasioned by the fall
of any article from it, unless such article
belong to him, 665
Chapter III
Of offences Committed by or upon Animals, 665
The rider of an animal is responsible for any
damage occasioned by it which it was in
his power to prevent, 665
And if he atop the animal in the road, he is
responsible for all accidents, 666
He is also responsible for any injury sustained
from a large stone, thrown up by the
animal's hoof, 66*5
But not from any accident occasioned by its
dung or urine, 666
Unless he had stopped it on the road unneces-
sarily whilst discharging these, 666
Responsibility attaching to the driver or
leader of an animal, 666
Expiation is required from the rider of an
animal, not from the leader or driver, 666
responsibility attaches to the former,
and not to the latter, 667
of two riders driving against and killing each
other, 667
The driver of an animal is responsible for
any accident occasioned by its saddle, &c ,
falling off, 668
Responsiblity in the case of a string of
camels, 668
A person is responsible for the damage occa-
sioned by hunting his dog at anything,
668
But not unless he drive or encourage the dog,
668
Nor where the has let him slip at game, 669
A man, casting off his animal on the highway
is responsible for any depredation it may
commit, 669
For the eye of a goat an adequate compen
sation is due ; and for the eye of a labotu
ing animal a fourth of its value is due
669
736
INDEX
FINES— continued.
Damage occasioned by an animal havings
rider on its back, 669
Or being led in hand, 670
A person wantonly striking an animal, so as
to occaiion mischief, is responsible, 670
So likewise a person who sets anything in
the highway, which renders the animal
mischievous, 670
Chapter IV.
Of Offence Committed by or upon Slave* , 670
Levying of Fines of Mawakil, 670
Definition of term, 670
FIRASH, 32
FIRES—
Negligence with respect to, 660
FISH.— See SALE, 268
Eating of, 592
FITTIR—
Festival of breaking Lent, 22
FITWA, 3H
FIXTUBRS —
Sale of a house includes, 248
FLESH—
Sale of, of a living animal is not usurious,
292
One species may be sold for another, 293
Various kinds of unlawful, 591
FLOUR—
Cannot be sold for wheat.— See SALE, 29 i
May be sold for flour, 292
Bread may be sold for, 293
FOOD.— -See SALE. —
A power to purchase, is restricted to wheat,
or flour, 380
Articles of, which are lawful, 591
FORCE.— See COMPULSION.
FORNICATION — See WHOREDOM.
FORESTALLING.— See SALE, 278
FORESTALLAGE, 605
FOSTERAGE-
CD/ Rt«a, or Fosterage, 67
Definition, 67
Degree of fosterage which occasions prohibi-
tion, 67
Objection, 68
Reply, 68
Length of the period of, 68
Sucking beyond the term of, is not an occa-
sion of prohibition, 68
Exceptions from the general rule of prohibi-
tion by, o9
Objection, 69
Reply, 69
Cases of admixture of the milk with any
foreign substance, 70
Or with the milk of another woman, 70
Prohibition is occasioned by the milk of a
virgin, 70
Or of a corps, 70
Cases in which milk does not occasion prohi-
bition, 70
Cases of one of two wives suckling the other,
71
Objection, 71
Reply, 71
Evidence to, require the full number of
witnesses, 72
FOUNDLINGS —
Definition of Lakut, 206
The taking up of a, is laudable, and in some
cases incumbent, 206
A, is free, 206
And is maintained by the t tate, 206
A, owes nothing to his Mooltakit for sub-
sistence unless he furnish it by order of
the magistrate, 206
No person can take a, from his Mooltakit but
by virtue of a claim of parentage, 206
A Mooltakit's claim of parentage with respect
to his is admitted, 206
Case of a claim of parentage made by two
persons, 207
A, discovered by a Zimmee in a Mussulman
territory is a Mussulman, 207
If in a Zimmee territory, he is a Zimmee,
207
A, cannot be claimed as a slave, 207
A slave's claim of parentage with respect to
a, is admitted, but the, is free, 207
The property discovered upon a, is his, and
may be applied to his use upon the autho-
rity of the Kazee, 207
A Mooltakit cannot contract his, in mar-
riage, 208
Nor perform any acts in respect to his pro-
perty without authority, 208
But he may take possession of gifts, 208
And send him to school, 208
He cannot let him out to hire, 208
FREETHINKERS —
Evidence of.— See EVIDENCE, 362
FRIDAY—
Sabbath, 278
Buying or selling on. — See SALE, 270
FRIENDSHIP —
Or sales of— See SALE, 281
FRUIT.— See COMPACTS OF GARDENING, 536. —
WILLS.
On tree, not included in sale of tree.— See
SALE, 245
May be sold in every stage of growth, 246
Additional growth of, purchased on the tree,
246
Rule in the purchase of, sold on a tree, 247
Zakat of.— See ZAKAT, 17
FULL AOE.— See PUBERTY,
Periods of minors attaining, 529
FUNERAL CHARGES —
Must be defrayed by executor without loss of
time. — See WILLS
G.
GAMBLERS—
Testimony of, 362
GAME. — See HUNTING, 623
Laws with respect to the hunting and killing
of, 623
Slaying, 625
i Slaying animals for, 587
GAMING, 608
i GAMESTERS—
1 Evidence, 362
See COMPACTS OF GARDENING, 366
INDEX
737
GENERATION —
Of an animal, claim founded on, 419
GHAZB. — See USURPATION, 5'J3
GIFT AND SEISIN —
A plea of pawnage and seiain it preferable
to a plea of .—See CLAIMS, 417
GIFTS —
Definition of terms used in, 482
Chapter I.
Are lawful, 482
And rendered valid by tender, acceptance,
and seisin, 482
Objection, 482
Reply, 482
A gift may be taken possession of on the
spot where it is tendered without the ex-
press order of the donor, but not after-
wards, 482
A gift made from divisible property must be
divided off but not a gift made from in-
divisible property, 483
Objection, 483
Reply, 483
A gift of an article implicated in another
article is utterly invalid, 483
The gift of a deposit to the trustee is in-
valid without a formal delivery and seisin,
484
The gift of a father to an infant son of any-
thing either actually or virtually in his
possession, is valid in virtue of his (the
father's) seisin, 484
And so also a, to an infant by a stranger, 484
To an orphan is tendered valid by the seisin
of his guardian, 484
And to a fatherless infant by seisin of his
mother, 484
To a rational infant is rendered valid by the
seisin of infant himself, 484
A house may be conveyed in, two persons
to one, 485
But not by one person to two, 485
Distinction between joint, or alms to the rich
and to the poor, 485
Case of the, of a hous^ separate lost, 485
Chapter II.
Of Retracti ton of Gifts, 485
The donor may retract his, to a stranger,
485
But there are various circumstances which
bar the retraction, 485
A, of land cannot be retracted after the donee
has built or planted on it, 486
After the sale of a part of the land by the
donee, the donor may resume the re-
mainder, 486
A, to a kinsman, cannot be resumed, 486
Nor a, to a husband or wife during marriage,
486
The respect of a return prohibits retraction,
486
Although the return bs given by a stranger,
486
If part of the, prove the property of another,
a proportionable part of the return may be
resumed, 486
When the return is opposed only to a part
the remainder of the, may be resumed,
487
GIFTS — continued.
Retraction requires mutual consent, or a
decree, 487
The donor's re-possession of the, is not re-
quisite to the validity of retraction, 487
The donee, incurring any responsibility in
consequence of a, receives no compensation1
from the donor, 487
A mutual, requires mutual seisin, 488
The, of a pregnant slave includes the, of her
foetus, 488
Unless that have been previously emancipated,
488
If the foetus have been previously created a
Modabbir, the is null, 488
The, of a thing renders all provisional con-
ditions respecting it nugatory, 4S8
The, of a debt bv a conditional exemption
from it, is null, 488
Case of life-g.ants, 480
OfSadka, or Alms-deed, 4SO
Alms-deed requires seisin of the subject,
4 SO
And cannot be retracted, 4SO
Distinction between votive vows of Mai and
Milk in alms, 489
GOATS—
Laws of Zakat respecting. — See SACRIFICE,
ZAKAT.
GOLD. —See SALE, 312
Zakat imposed upon — See ZAKAT, 10
And silver vessels, 507
Ornaments, 507
Goons —See SALE, 24s
GRAIN. —See CULTIVATION. —SALE, 243
Compacts of, 581
A representative of property, 430
May be sold in the ear, or pulse in the husk,
24/
GRANDFATHER —
Evidence of, 360
Represents the father in defect of an exe-
cutor, 703
GRANDMOTHER —
Paternal, inherits to her grandson in defect
of the mother, 138
GRANTS —
Life or posthumous, 480
GRAPES, 623
GRASS —See SALE, 260
GROUND —
Sale of— See LAND.
GUARDIAN —See PAWNS, 638
Who are, of infants, 36, 38
In marriage, must contract his infant ward
to her liking, 609
The disposition of a lunatic woman in mar-
. riage rests with her son, 39
May be surety to the woman for her dower, 54
Contracts or acknowledgments by, on behalf
of infants or lunatics.— See INHIBITION,
5<5
GUARDIANSHIP —See DIVORCE, 138.— DowiK.
In marriage* ZO
In virtue of executorship, 700
GUARANTEES. —See BAIL.
73*
INDEX,
H.
HADII (HADITH), 256
HADBES MASH'HOOR, xxix
HAIR.— See SALE, 268
HUMAN,— See SALE, 270
HAKAM, 17
HANBAL. — See ABOOHANEEFA.
HAREEM—
A space which mutt be left round wells, 611
HARKS —
Flesh of, may lawfully he eattn, 591
HASHIM, xix
HASSAN, xvi
HAWA—
The sect so named, Evidence of, 362
HAWAUT.--See DEBTS, transfer of, 333
HAWKS.— -See HUNTING, 626.— -See SALR, 300
HAWALAN-HAWL —
Tn Zakat, definition of, 1
HAZIR ZAMINBE, 318
HEDAYA, or GUIDE, xv, xxvi
HEARSAY.— See EVIDENCE ON, 357
HEIRS. — See COMPOSITION, 360
HETR —See INHERITANCE, 360
Sale by an, 350
Of a deceased purchaser must be sworn in
case of disputes, 410
Ts not entitled to a legacy, 437
In dispute between survivor and the, of
deceased, article must be adjudged to
mrvivor, 4H
Bequest to,—See WILLS, 671
(Infant), rules with respect to, 332
Acknowledgment in favour of, 437
HERDS —
Zakat from.— See ZAKAT, 4
HEREDITAMENTS —
Distribution of, 567
HFRMAPHRODJTF —
Testimony of an, 3^3
Of who are, 704
Ambiguous, 704
Of /au>$ respecting equivocal, 705
An equivocal, 705
Must take his station in public prayers
between the men and the women, 703
Observing in other respects the customs of
women, 70.5
He must not appear naked before men or
women, or travel along with either, except
a relation, and he must be circumcised by
a slave purchased for that purpose, 705
Rules to be observed by him during a pil-
grimage, 705
Divorce or emancipation suspended upon the
relation to an, 705
Hn declaration of his sex is not admitted,
706
Rules to be observed in his interment, 706
R^iles of inheritance with respect to, 706
HERETICS— I
Fvidence of, ^62
(bee* ~$«rt» GIFTS.
HIDA RAZAP,—See PUNISHMENT, 197
HIDAEE —
Or mourning.— See DIVORCE 132
HIDES.— See SALE, 270
HIDJ FARZ.— See PILGRIMAGE.
HIGHWAY.— See FINES, 660
Nuisances placed in.— See FINES, 660
HIJR. — See INHIBITION.
AIRBEE, xxxi
HIRE.— See LOANS, PAWNS.
Definition of the terms used in, 489
Chapter I.
The usufruct and the, must be particularly
specified, 490
Objection. 490
Reply, 400
The, or recompense may consist of anything
capable of being price, 490
The event of the usufruct may be defined
by fixing a term, 400
Or in hiring servants, &c., by specifying the
work to be oer formed, 400
Or by specification and pointed reference,
400
Chapter IT.
OftheTime when the Hire m^y he Chimed,
401
Can only be claimed in virtue of an agree-
ment, or in con«equence of the end of the
contract being obtained, 401
The tenant becomes bound for the rent by a
delivery of the house, &c.. to him, 401
If it be not otherwise specified in the con-
tract, rent may he demanded from day to
dav, 401
Or the, of an animal (upon a journey) from
sta«e to stage, 401
A workman \* not entitled to anything until
his work b<* finished, 401
Case of a bakf»r hired to hake bread, 492
And of a cook. 402
And of n brick-maker, 402
The article wrought upon mav be detained
hv the workman until he be paid hii, 402
And he is not responsible in ease of accidents
during such detention, 492
If the work be of a nature not to produce
any visible effect in the article, it cannot
be detained, <02
A workman, if the contract be restricted to
his work, cannot employ any other per-
son, 403
Case in which, from an unavoidable accident,
the contract cannot be completely fulfilled,
493
Chapter III.
Of thing* the Hire of which i§ Unlawful or
otherwise ; and of Disputtrf Hire, 494
A house or shop mav be hired without sptci*
fyins the particular business to be carried
on in it, 404
Unless it be of a nature injurious to the
building, 404
In a lease of land the renter is entitled to
the use of road and water, 494
But the leaie is not valid unless the me to
which it it to he appliecl be,ipec'n>d, 49*
INDEX
HIRI — continued.
At the expiration of the lease the land must
be restored in the original state, 494
An absolute contract leaves the hirer at
liberty to give the use to any person, 494
But in a restricted contract, any deviation
with respect to the use renders the hirer
responsible for the article, 495
Unless that be of a nature not liable to injury
from such deviation, 495
Or unless the deviation be not of a nature to
injure the article, 495
An excess in the use induces a proportionable
responsibility in case of accident, 495
A rider, taking up an additional rider, incurs
responsibility for half the value of the
nnima), 4()S
A hired animal perishing from ill-usage sub-
jects the hirer to responsibility, 496
In the hire or loan of animals, responsibility
is induced by any deviation from the pre-
scribed journey, 496
The change of a saddle for another of the same
sort does not induce r sponsibility, 4%
Unless the weight be different, when respon-
sibility attaches in proportion to the excess,
49(>
If the nature of the saddle be different,
responsibility attaches in toto, 496
A porter is not made responsible for any
immaterial deviation from the prescribed
roa~», 497
Any injurious deviation from the prescribed
culture of hired land induces a proportion-
able responsibility, 497
A tailor is responsible for deviating from his
orders, 497
Chapter IV.
An invalid condition invalidates, 497 j
But a proportionate, is in such a case due, to j
the extent of the soecifieJ, 497
A contract indefinitely expressed closes at the
expiration of the first term, 498 ,
Rules with respect to annual leases, 498 ,
Wages are due to keepers of baths and cup-
pers, 498
Hut there is no, for the covering; of mares,
4*9 |
Nor for the performance of any religious
duty, 499
Nor for singing or lamentation, 499
Of indefinite articles, 499
Of a nurse, 500
A contract of, stipulating that the recom-
pense shall be paid from the article manu-
factured or wrought upon is invalid, 501
Partners do not owe, to each other with
respect to their stock, 501
Any uncertainty in terms invalidates the
contract, 501
A lease of hands is not invalidated, by stipu-
lating a right to perform any act which
does not leave lasting effects, 502
A contract stipulating the re com pence to
consist of a similar usufruct is nugatory,
502
Objection, 502
ReP^, 502 t
°f two partners, 5(J2
HIRE — continued.
Leafceof land is invalid, unless it specify the
purpose to which the land is to be applied,
503
Responsibility does not attach from the custo
mary use of an article, under an indefinite
contract, 503
Chapter V.
Of Responsibility of a Hireling, 503
Difference between common and particular
hirelings, 503
The article committed to a common hireling
is a deposit, 503
But he is responsible if it be destroyed in
course of his work, 504
A surgeon or farrier, acting agreeably to cus-
tomary practice, is not responsible in case
of accidents, 504
A particular hireling, 505
Is not responsible for anything he loses or
destroys, 505
Chapter VI.
Of Hire on one of two Condi tions, 505
The, is valid of a tradesmen, under an alter-
native with respect to work, 50 S
Or of an article under an alternative nf
another article, 505
Or with respect to use, 505
Case of a tradesman hired under an alterna-
tive with respect to time, 500
Case of, of a shop, under an alternative with
respect to the business to be carried on in
it, 506
And of an animal under a condition with
respect to the journey it is to perform, 5%
Or the load it is to carry, 506
Chapter VII.
Of the Hire of Slaves, 507
A hired servant cannot be taken upon a
journey, unless it be so stipulated in the
contract, 507
Wages paid to an inhibited slave, hired with-
out the consent of his owner, cannot be
resumed, fi07
The usurper of a slave i* not responsible for
what the slave earns during the term of
usurpation, 5 7
Cas« of a slave hired for different terms, 508
Case of a hired slav? absconding before the
expiration of the term, 508
Chapter VIIT.
Of Dispute* between the Hirer and the Hire-
ling : —
In cases of dispute with a tradesman cen-
cerning the orders he has received, tke
assertion of the employer mint be credited,
508
And so also, if the dispute be with reipect
to wages, 509
Chapter IX.
Of the Dissolution of Contracts *f Hire
A contract for the hire of a house is dissolved
by a defect in it, 509
Or by its falling to decay ; and the hi* of
land by its wells being dried up,— or of
a mill by the mill-stream stopping, 509
But if the mill -house be uied, a proper*
tionate rent is due, 510
740
INDEX.
HIRE— continued.
A contract of, is dissolved by the death of
one of the contracting parties being a
principal, 510
It admits a reserve of option, 510
vt is dissolved by the occurrence of any
sufficient pretext for dissolution, 510
Circumstance which form a pretext for dis-
solving contracts of, 510
Miscellaneous Casts : —
A hirer or borrower of land is not respon-
sible for accidents in burning off the
stubble, 512
A tradesman may unite with another for a
moiety of the, acquired upon the work,
512
Of a camel to carry a litter with two persons,
o!2
A sumpter camel may be loaded with other
articles in proportion as the provisions he
carries are consumed, 512
Objection, 512
Reply, 512
HIRELING —
Responsibility of a, 503
HIRER—
And hireling, evidence of, 360
Of an article or animal, responsibility of, 503
Disputes between, 509
HISSAYED —
(Stubble) may be burned on the ground, 512
HIZANIT, or INFANT EDUCATION —
Or care of infants. — See DIVORCE, 138
HOMOGENEOUS SALES. — See SIRF SALES.
HONEY —
Zakat due on, 17
HOODOOD or PUNISHMENT, 175
HORNED CATTLE —
Zakat of. —See ZAKAT, 5
HORSES.— See ZAKAT, 6
Appropriation of, to pious uses, 234
The flesh of, may not be eaten; 591
HOUSE—
Claims by two persons to, 421
Acknowledgment regarding, 431
What included in a sale of.— See SALE, 245
Sale of, included fixtures, 248
A porch, over a road, connected with, is not
included in sale of, 294
An avenue is not included in the purchase of
an apartment of a, 294
Privileges of a tenant with respect to, 344
Claim of joint inheritance in a, 349
Case of claim to a, 418
Hire of a. 490, 494, 505, 510
No act can be performed with respect to an
under-storey of a, which may effect the
buildings, 344
Bequest of, to an infidel place of worship,
695
Bequest of an apartment in a, 681
Bequest of the use of a, 692
Ruinous. — See FINES.
HOUSEHOLD GOODS—
Not subject of shaffa, 558
Partition of, 569
HOUSE —
Appropiated to charitable purposes, 235
Repairs of, 235 \
HOUSE — con ttnued.
Gift of, 485
Partition of, 570, 574
Connected with land, 571
Partition of the use of, 576
Pawn or mortgage of, 636
HUNTING —
Of Catching Game with Animals of the Hunting
tribe, such as Dogs, Hawks, &c.t 623
Rules for ascertaining whether a dog, &c.,
be duly trained, 624
The invocation must be repeated (or, at least,
must not be wifully omitted) at the time
of letting ship the hound, &c., 624
A, quadruped eating any part of the game
renders it unlawful, 625
Game caught by a hawk, after it has returned
to its wild state, is not lawful, 625
A dog does not render his game unlawful by
taking its blood, 625
Or by eating a piece of the flesh, cut off and
thrown to him by the hunter, 625
Case of a dog biting off a piece in the pursuit
of his game, 625
Game taken alive must be slain by Zabbah,
625
Provided it live long enough to admit of
performing the ceremony, 626
The game taken is lawful, although it be not
the same that was intended by the hunter,
626
All the game caught by the dog, &c., under
one invocation, is lawful. Rule for deter-
mining this with respect to dogs, 626
And hawks, 626
Game is not lawful when caught by a hawk,
&c., independent of thefmnter, 626
It is requisite to its legality (when caught
dead) that blood have been drawn off, 626
Game is rendered unlawful by the conjuction
of any cases of illegality in the catching
of it, 626
Game hunting down by any person not quali-
fied to perform Zabba is unlawful, 627
Game killed at a second catching of it, either
by the same or a second dog is lawful, 627
Of Shooting Game with an Arrow, 627
Game slain by a hunter shooting. &c., at
random, on hearing a noise, is lawful,
provided the noise proceed from game. 627
Game shot by an arrow aimed at another
animal is lawful, 627
Invocation must be made on the instant of
shooting ; but if the animal be taken
alive, it must still be slain by Zabbah, 627
Game wounded, and afterwards found dead
by the person who shot, is lawful, 627
Unless he then discover another wound upon
it, 627
Game which, being shot, falls into water, or
upon any building, &c., before it reaches
the ground, is unlawful, 628
Rule with respect to water-fowl, 628
Game slain by a bruise, without a wound, is
not lawful, 628
Case of cutting off the head of an animal.
628
A Magian, an apostate, or an idoUtor, are not
qualified to kill game, 628
INDEX.
741
H UNTING — continued.
Case of game wounded by one person, and
then slain by another, 628
Case of game first wounded, and then killed
by the same person, 629
All animals may be hunted, 629
HUSBAND, — See DIVORCE. — MARRIAGE.
Where bound to maintain his wife, 140
Has no authority over his wife further than
respects the rights of marriage, 23
Duties towards his wife with respect to co-
habitation, 66
Cannot carry divorced wife upon a journey,
— See DIVORCE.
Evidence of, concerning his wife, 360
Acknowledgment of, 439
Must cohabit equally with all his wives, —
See MARRIAGE, 66
HUSBAND AND WIFE.— See DIVORCE.— DOWER,
MARRIAGE.
Evidence of, 360
Case of dispute between, concerning furni
ture, to whom adjudged. — See CLAIMS, 413
I.
IBBAK —
Or the absconding of slaves, 213
IDIOT —See LUNATIC.— MANIAC.
Imprecation not incumbent where a husband
or wife an, 125
IDIOTISM, OR LUNACY —
Degree of, requisite to render it absolute, 397
IGNORANCE OF THE LAW —
No man can plead, in Mussulman territory,
IHRAM, 30, 603
IHSAN, 1,3
JHTIKAR, 605
IKHTIAR,— See DIVORCE 87
IKHTIAREE ZABBAH, 587
IKRAH— -See COMPULSION, 519
IKRAR —
Or acknowledgments.— See. ACKNOWL DG-
MKNTS, 42/
IJARA —See HJRE, 489
iMaM MOHAMMED, xxvii
IMMEDIATE DESCENT.— See ASSABA.— ASOOBAT
IMMODEST PERSONS —
Testimony of, 362
IMMOVABLE PROPERTY (in iheritance)—
Defintion of, 567
IMPOTENCE.— See DIVORCE, 126
IMPHRCATION.— See DIVORCE, 123
Incase of a husband accusing his wife of
adultery, 123
Laws of, 123
Appeal of, 402
IMPRISONMENT FOR DEBT.— See RAZKE, DUTIES
CF, 338
INDECORUM —
Evidence of persons guilty of, 362
INFAMOUS WITNESS,— See WITNESS.
INFANTS.— See ZAKAT, 19.~MA*RUGK.
Zakat not due from, I
Imprecation not incumbent where husband
or wife are, 125
Care of.— See,Divo*CE, 138— HIZANIT.
Dower of, 141
INFANTS— continued.
Maintenance, 141
Mother not required to suckle, 146
Care of, in all cases committed to the mother
or next natural relative, 138
Bail entered into by, 219
Female may oblige her guardian to contract*
her in marriage to her liking, 699
Not subject to Zakat, I
May be contracted in marriage by their guar-
dians, 37
Deeds of gift in favour of, 484
May be appointed agent, 378
Acknowledgment by, 428
Inhibition upon, 524
Right of ahafta in respect to, 564
Partition of the property of, 568
Acknowledgment of parentage with respect
to, 439
Contracts by, 525
A Mokatib, a slave, a Zimmee, cannot act for
an, daughter being a Musalima, 392
So of an apostate, or infidel alien, 392
Bequest by, is void, 6y3
INFINDPL —
Marriage of an, couple not dissolved by their
jointly embracing the faith, 63
Unless it be a marriage within the prohibited
degree, 63
But if one of them only be converted a
sparation takes place, 63
Apostates are incapacitated from marrying,
6*
If either the father or mother be Mussulman,
their children are Mussulman, 64
Or where one is of a superior order of, and
the other of an inferior, their children are
of a superior order, 64
Upon the conversion of one of the parties,
the magistrate is to require the other to
embrace the faith, and must separate
them in case of recusancy. 64
Objection, 64
Reply, 64
And if the conversion of either happen in a
foreign country, separation takes place
upon the lapse of the woman's term of
probation, 60
If the wife be an alien, she is not to observe
her Edit, from separation in consequence of
her husband's conversion, 65
The conversion of the husband of a Kitabeea
does not occasion separation, 65
Case of a convert removing from a foreign
land into a Mussulam territory, 65
A woman returning from a foreign to a
Mussulman territory is at liberty to marry,
66
But if pregnant she must wait until her
delivery, 66
Cannot be an executor — See WILLS.
INFIDELITY.— See SALE, 259
Declaration of, upon compulsion, 521
INFIRMITIES. — See SALE, 259
INHERITANCE,— See COMPOSITION, 452
Rule of, in the marriage of infants, 38
Incidental ru'es respecting, 138, 145, iw
742
INDEX
iMHlRiTANCB—contmued.
With respect to a missing person, 216
Decree relative to, 347
Acknowledgment in cases of, 440
Rules with respect to hermaphrodites, 706
Dtcrees of Kazee, relative to, 347
Evidence relating to.— See EVIDENCE, 368
Heir may recover an article in possession of
another by proving it to have been the
property of his inheritee, or a loan or
deposit from him, 360
INHIBITION—
QfHijr, 524
Definition of, 524
Operates upon infants, slaves, and lunatics,
524
Whence purchase or sale by them requires
the assent of their immediate superior,
524
Objection, 52r>
Reply, 525
But it operates upon them with respect to
words only, not with respect teacts, 525
All contracts or acknowledgments by an
infant or lunatic are invalid, and so like-
wise divorce or manumission pronounced
by them, 525
Or by their guardians on their behalf, 525
They are responsible for destruction of pro-
perty, 525
Acknowledgment by a slave affects himself,
not his master, and takes effect upon him
on his becoming free, 525
Or on the instant, if it induce punishment or
retaliation, 625
Divorce pronounced by him is valid, f»2<>
Chapter II.
Inhibition from Weakness of nrind, 52o
With respect to a prodigal, 520
May be imposed by one magistrate and re-
moved by another, 526
The property of a prodigal youth must be
withheld from him until he attain twenty-
five years of age, :'27
But a sale concluded by him after he attains
maturity, and before, is valid, 527
And he may grant manumission, 527
Or Tadbeer, 528
Or claim a child born of his female slave,
528
Or create his female slave Arn-Walid, inde-
pendent of such claim, 528
He may marry, 528
Out of his property is paid Zakat ; and also
maintenance to his parents, children, &c.,
52$
He cannot be prevented from performing
pilgrimage, 529
His bequests (to pious purposes) hold good,
529
There is no, upon a Fasik, 529
People ar* liable to, from carelessness in
their affairs, 529
Of the Time of obtaining Puberty, 529
The puberty of a boy is established by cir-
cumstances, or upon his attaining eighteen
yews of age ;— and that of a girl, by cir-
cumstances, or upon her attaining seventeen
years qf age, 529
i INHIBITION— continued
! Chapter II I
Inhibition on account of Debt. 530
; A debtor is not liable to, 530
Nor can his property be made the subject of
any transaction, 530
But he may be imprisoned, 530
If he be possessed of money of the same
j denomination as his debt, the Kazee may
make payment with it ; or, if the species be
! different, he may sell it for this purpose, 530
Rules in selling of a debtor's property, 531
Acknowledgments by a debtor are not bind-
ing on him until his debts be paid, 531
A debtor (being poor) gets a subsistence out
of his property ; and also his wives,
children, and uterine kindred, 531
A debtor, on pleading poverty, is imprisoned,
531
Genera) rules with respect to him whilst in
prison, 531
After liberation, the creditors are at liberty
to pursue him, 532
And have an option, if he prefer continuing
in prison, 532
A male creditor cannot pursue his female
debtor, 532
Case of a purchased article being in the
debtor's hands upon his failure, 532
Objection, 533
Reply, 533
i INNEEN, — See DIVORCE, 126
! INSECTS —
; Cannot lawfully be eaten, 591
. INSOLVENCY —
Of a debtor established by judicial decree, 2
INSOLVENT DEBTOR —
Bequest by, is void, 673
INSPECTION. — See SALK.
INSTITUTES—
Definition of seyir, 205
INTERCOURCE BETWEEN THE .SEXKS —
Rules concerning, 59.S
INTRODUCTORY ADDRESS, iv
INTOXICATING DRINKS, — See PPNISHMENT, 1**5
INVALID SALES —
Laws of, — See SALE, 275
INVESTITURE —
By loan, 478
By pi ft, 4S2
By hire, 490
, INVOCATION.— See HUNTINH, .>88, 624
In slaying animah for food, 588
IRON—
Always sold by weight, 280
ISMUT MAWSIMA.
. IsriDANIT —
Definition of, 466
ISTIH RAK.— -See CLAIMS OF RIGHT,
ISTSINA —
j Definition of, 309
I ISTIBRA— See ABOMINATIONS 60
! ITTAK —
! Or manumission of slaves, 15CV
I ITTIKAF, xxxvii
ITTAKIT. — See WILLA.
What, 155 note
IZTIRAREE ZABBAH, 533
INDEX
143
JAHEEZ, 413
JAM A KABEER, xxviii
,;AMA SAQHEER, xxviii
JAR MDLASICK —
Entitled to shaffa, 54C>
JAZEEAT —
Defined, 68
TEED DRIMS, 432
JEW—
Form of administering an oath to, 405
JANAYAT,— See OFFENCES AGAINST THI PERSON,
569
JEWELS. — See PARTITION, 560
Sale of,
JIRB, 203
JOINT AGENTS. — See AOINCY, 391
JOINT INHERITANCE—
Claim of, 349
Trustees, 357
JUDGE. — See KAZEE
JUDICAL DECISIONS, 344
JUDICIAL LETTERS FROM ONE KAZBE TO AN-
OTHER, Cases relative to, 344
JUDICIAL REGULATIONS BLENDED WITH REU-
GION, 12
K,
KABA, xxxvii, xxxiii ; 318
KABALA, xxxvii, x\xiii ; 3l,S
A term for bail bond*, 31 y
KABALA, xxxvii
KAFAKA—
Or expiation, 150, 153
KAFAUT —See HAIL, 1H7
KAFALlT-hE'L-DlRK, 321
KAFAT, or FQUAUTV—
Definition of, 39
KAFEEL-BF/L~DIRK. — Spe SAIK, 327
KAPKEZ 243
KAFEEZ TEHAN—
Definition of, 501
KARZ AND AWEIAT— -
Two kindi cf loan, differtnce between, 289,
480
KAZEE—
Duties of, 334
Must possess the qualifications of a witness,
834
Dots nnt forfeit office by misconduct, 314
A Mooftee must be a person of good cha-
racter, 334
An ignorant person may be appointed, 334
It is the duty of the sovereign to appoint a
fit person to that office, 335
One may be appointed who has a confidence
in his own abilities, 335
But not one who is dubious of himself, 335
The appointment, must not be solicited or
coveted, 335
On appointment, must take possession of all
the records appertaining to his office, 336 "
Through his Ameeng he must investigate the
nature of them, 3^6
KAZKE-— continued.
And must inquire and decide concerning
prisoners confined upon any legal claim,
• 336
And also concerning deposits of contested
property, 336
He must execute his duty In a mosque, or
other public place, 337 •
Or in his own house, 337
And must be accompanied by his uiual asso.
dates, 337
He must not accept of any presents, except
from relations or intimate friends, 337
Nor of any feaat or enterta nment, 337
He must attend funerals, and visit tht sick,
387
Precautions requisite in his general conduct
and behaviour, 8^7
And in his conduct towards witness in
court or whilst giving evidence, 338
He must not give judgment at a timt when
his understanding is not perfectly clear and
unbiassed, 338
Of Imprisonmtnt, 338
Rules in imprisonment for debt, 338
In an award of debt, the defendant must he
imprisoned immediately on neglecting to
comply with the decree, provided it be in-
curred for an equivalent, or by a contract of
marriage, 338
And also in every other instance, if th-
creditor prove his capacity to discharge it,
338
Case of a wife suing for her maintainan?*,
339
Objection, 339
Reply, 330
Case of acknowledgement of debt, !W
A husband may he imprisoned for t)u- main-
tenance of his wife, but a father cannot b*
imprisoned at the suit of hi» son, 3^9
Chapter II.
Of Litttrsfrom one Kazrg fn Another, 340
Letters authenticated by evidence are admis-
sible in catei of property, 340
Difference between a record and a Kazee's
letter, 340
A letter is transmissible only on certain con*
ditions, 340
The testimony requisite to authenticate it,
340
The contents must be prtvioualy txpUJntd
to the authenticating witnesses, 540
It must not be received but in prcstnct of
the defendant, 341
Forms to be observed in tht rtctption of
it, 341
It is rendered void by the death or dinmis-
sal of the writer in the interim, 341
Or (unless generally addressed) by the d«th
or dismissal of him to whom it i» trans-
mitted, 341
It is not admissible in cases of punishment
or retaliatipn, 34 1
A woman may execute the office ^f Kazer in
ail cases of property, 341
A Kazee is not at liberty to appoint a dsputv
without the authority of the [mam, .m
744
INDEX
KAZEE— continued.
But the decrees of the deputy, passed in his
presence or with his approabation, are valid,
342
If he appoint a deputy by authority, he
cannot afterwards dismiss him, 342
He must maintain and enforce the equal
-decrees of every other Kazee. 342
His determination in a doubtful case is valid,
although it be repugnant to the tenets
of his sect, 342
An article decreed unlawful, upon evidence,
continues so, although the evidence prove
false, 342
A decree cannot be passed against an absen-
tee but in presence of his representative,
342
Nor against one who first opposes the clai«ns
and then disappears, 343
The, may lend the property of orphans, 343
Chapter III.
Of Arbitration, 343
An abritator must possess the qualities
essential to a, 343
He must not be a slave, an infidel, a slan-
derer, or an infant, 343
But he may be an unjust man, 343
Either party may retract from the abitra-
tion before the award, 3*3
On a reference to the, he must give effect to
the award, if approved, ?43
Reference to an arbitrator is invalid in cases
of punishment or retaliation, 343
An arbitrator's award of a fine against the ,
tribe of an offender is of no effect, 344 i
Nor against the offender himself, unless he
acknowledge the offence, 344
He may examine witnesses, 344 ;
The parties acknowledging an arbitrator's i
decree cannot afterwards retract from it, '
344
Any award passed in favour of a parent, !
child, or wife, is null, 344 I
Joint arbitrators must act conjunctively, 344 j
Miscellaneous Cases feldtive to Judicial Deci- !
lion
No aot can be performed with respect to the
under storey of a house which may any
way affect the building, 344
A passage cannot be made into a private
lane, 344
An indefinite claim may be compounded, j
345 <
Case of a claim founded on gift or purchase, '
If the purchase of a female slave be denied
by a purchaser, the master may cohabit
with her, 345
Objection, 34-r>
Reply, 345
In the respect of money, the declaration of
the receiver must be credited with respect '
to the quality, 345
A creditor denying his debtor's acknowledg-
ment cannot afterwards substantiate his
claim but by proof, or the debtor's verifica-
tion, 3o6
KAZEE — conti nued.
In a claim for debt, the evidence of the
debtor, proving a discharge, must be cre-
dited, 346
Case of a disputed purchase of defective
slave, 346
A deed suspended, in its effect, upon the will
of God is null, 347
i Chapter IV
! Of the Decrees of a Kazee relative to Inheri-
tance.
; Case of the widow of a Christian claiming
her inheritance after having embraced the
faith, 347
i Case of the Christian widow of a Mussul-
man claiming under the same circum-
stances, 347
A trustee, on the decease of his principal,
must pay the deposit to whomsoever he
acknowledges as heir, 347
In the division of an estate, the, must not
demand any security from the heirs or
creditors on behalf of those who may be
absent, 348
In the joint inheritance of a property held
by a third person, the present heir receives
his share, but no security is required on
behalf of him who is absent, 341J
Object ion ,349
Reply, 349
An alms-gift of Mai includes all property
subject to Zakat, 349
Case of an alms-gift of milk, 350
The acts of an executor are valid, without
any formal notification of his appointment,
350
An agent's appointment may be established
by any casual information, 3fiO
But his dismissal cannot be established un-
less duly attested, 351
A Kazee or his Ameen are not liable for any
loss which may be incurred to the pre-
judice of another in selling an aiticle to
satisfy creditors, 351
If the loss be incurred by an executor acting
under the Kazee's orders, the executor is
indemnified by the crecU ors, 351
A man infant heir stands in the same pre-
dicament with a creditor in this particu-
lar, 352
Any person may execute a punishment by
the Kazee's directions, 352
Case of a disputed decree after a Kazee's dis-
missal from his office, 352
Allowance of to be paid from public treasury,
609
KERAHEEAT —See ABOMINATIONS, 594
KERAT—
The twenty-forth part of an ounce, 10
KESSMAT —See PARTITION
KHALWATSAHEEB.— See MARRIAGE, 45
KHALIF.— See SOVEREIGN PRINCE.
KHAMR, ol8
KHAMS—
Levied in Zakat, 14
KHASAF, xxix
KHASOOMAT, 392
INDEX
745
KHATN —
Definition of, 689
Bequests to, 689
KHAZEE.— See KAZEE.
KHETABEA —
Tribe of, 362
KHIAR- AL-SniRT-See OpTiONALCoNDiTioNs,248
KHIAR-AL-TAYEEN — Se; OPTION or DETERMI-
NATION.
KHIAR- AL-ROOYAT.— See OPTION OP INSPECTION
KHIAR-AL-KABOOL -See OPTION OF ACCEPTANCE
KniAR-AL-MAjLis.-See OPTION OP THE MEETING
KHILAS, 329
KHIRAJEE LANDS — See TRIBUTE.
Law respecting, 204
KHOOLA —
Laws of, 112
The right to water cannot be given as a
consideration for, 618
KHOOLTEEN, A SPECIES OF DRINK, 631
KHOONSA MOOSHKIL, 704
KIDS— See ZAKAT.
KILLING— See Vows, 172
KINE--
The laws of Zak.it respecting, 5
KINSMAN—
Gift to, 486
Will in favour of, 689
KlRAN —
In pilgrimage. 521J
KISSM or PARTITION. — See MARRIAGE.
KISSMAT — See PARTITION.
KiTABAT.-See BAIL, 33 1-MoKATiBs.— RANSOM.
Contracts of
KITABBES.— See MARRIAGE, 30
KlTAB HOOKMEE, 340
KOOR, 305
KOSLA,— See DIVORCE, 112
KORAN —
The foundation of the law, xv
Who the author, xv
Teachers of, 499
KULMA—
The Mussulmans creed, 15
LAAN—
Imprecation in divorce, Rules of.— Sec
DIVORCE, 103, 123
Where husband denies the parentage of a
child. — See DIVORCE, 136
Oath cannot be exacted from defendant in
claims of, 402
LABOUR —
Copartnership in profits of, 454
LAKEETS, or FOUNDLINGS, 206
LAMENTATION —
There is no hire due for, 499
LANDS.— See WASTE LANDS CULTIVATION, 610
Product of, in what cases subject to tithes, 1
Continue liable to the original impost in all
transactions of property, 18
Appendages to, in a sale, 294
Cases of claim to, 400
Loan of, 481
Gift of, 486
Usurpation of, 535
Lease or hire of, 400
LANDS— continued.
Claims to, 420
Sale of, includes trees, 245
But not corn growing, 245
Seed sown in, not included in sale of, 246
May be borrowed for purpose of building,
480
When may be resumed, 481
Cultivation of Waste Lands, 609
Definition of Mawat, 609
And description of the land so termed, 610
The cultivation of waste, invests the culti-
vator with a property in them, 610
Tithe only is due form, so cultivated, unless
it be moist •ned with tribute water, 610
In the cultivation of the circumjacent
grounds, a road must be left to it, 610
A Zimmee acquires a property in the, he
cultivates, as well as a Mussulman, 610
If the, be not cultivated for three years
after it is marked off, it may be transferred
by the Imam 610
Manner of marking off waste, 61 1
cultivation is established by digging and
watering the ground, 611
Enclosing it, or sowing it with seed, 611
It must not be practised on the borders of,
already cultivated, 611
A space is appropriated to wells dug in waste,
611
Within the limits of which no other person
is entitled to dig, 612
Or if any do so he is responsible for such
accidents as it may occasion, 612
A space is also appropriated to a watercourse,
612
Or to a tree planted in waste, 612
The deserted beds of rivers must not be
Cultivated, 612
A space is not allowed to an aqueduct running
through another's, without proof of prior
right, 612
Differences of opinion concerning aqueducts,
613
Of Waters, 61 3
All people have a right to drink from a well
canal, or reservoir ; and also cattle, 613
Unless there be other water at a little distance,
614
Water may also be carried away for the pur-
pose of ablution, 614
Or for watering trees or parterres, 614
Of Digging and Clearing Rivers, 615
Rivers are of three descriptions, 615
Great public rivers must be cleared and
repaired at the expense of the public
treasury, 615
Or by a general contribution of labour, 615
And appropriated rivers at the expense of
the proprietors, 615
Objection, 615
Reply, 615
Rules with respect to drains, watercourses,
&c , 616
Of Claims of Shirk ; and of Disputes and
particular Privileges with respect to it,
616
A right to water may exist independent of
the ground, 616 ' ^
74f
INDEX
LANDS — continued.
No person can alter or obstruct the course of
water running through hit ground, 616
In case of disputes, a distribution of the
right to water must be made, 616
A rivulet must not be dammed up for the
convenience of one partner, without the
consent of the others, 617
One partner in a rivulet cannot dig a trench
or erect a mill upon it without the general
consent, 617
Nor construct a water engine or a bridge,
*17
One partner cannot alter the mode of par-
tition without the others' consent, 617
Or increase the number of openings through
which he receives his share, 617
O«- convey his share into, not entitled to
receive it, 617
Or through such, into those that are entitled,
617
Neither can he shut up any of the water-
vents. 617
Or adopt a partition by rotation, 618
A right to water cannot b* assigned as dower,
618
Or given as a consideration for Khoola, 618
Or in composition for a claim, 61S
Or sold (without ground) to discharge the
debts of a defunct : — (mode to be pursued
in this last instance), 618
Any accident from the use of the water does
not induce responsibility, 618
LAND TAX.— -See TmiuTi.
LANS (a PHIVATI) —
Restrictions with respect to, 346
LAPIDATION.— See PUNISHMENTS.
LARCENY. —See SARAKA, 205
LAWS OF THE MOHAMMEDANS, xv
Lawsuit, agency for the management of, 377
LIASE —
Of house invalid, unless it specify the pur-
pose to which the land is to be applied,
r03
Of grass upon a common, 269
A plea of, defeat a claim, 410
Term of an indefinite, 491
Annual, 498
Dissolution of, 509
LEGACY.— See WILLS.
In money, payment of, 6<9
(Joint) distribution of, 680
LEGALITY—
Four gradations from, to illegality, 591
LEGATEE, —See WILLS
Becomes proprietor of legacy by acceptance
of it, 673
His heirs succeed to the legacy in the event
of his death, 701
LEGATEE, JOINT —
Testimony of, 363
Rules concerning, 680
LXIS.OR AND LBSSKI—
Casyi of dispute between, caactrniag rent,
412
LEVYING OF FINE*, 679
Iri divorce, S9
?/»tt9 Atioa «f , ft* tfet wife, if
} LIFE GRANTS —See GIFTS, 439
LIQUORS—
Prohibited, 618
There are four prohibited liquors, 61 8
Khamr is unlawful in any quantity, 619
Is filth, in an extreme, 619
And cannot constitute property with a Mus-
sulman, 619
Nor be employed in the discharge of his
debts, 619
Or used by him, 619
I And the drinking of which, in any quantity
I induces punishment, 619
| Or used by him, 619
• Unless it be boiled, o!9
I But it may be converted into vinegar ,6H9
Jfazik (the boiled juice of the grape), termed
(when boiled away to one half) Monissaf,
i 619
i Sikker (an infusion of dates), 620
Nookoo Zabeeb (an infusion of raisins), 620
i The last three are not so illegal as Khamr, 620
They may be held legal, without incurring
a charge of infidelity, 620
And may be drank (so as not to intoxicate)
without punishment, 620
They may also be sold, and are a subject of
responsibility, 620
But they must not be used, 620
Khoolteen (a mixture of the infusion of dates
and raisins) may be drunk, 621
Produced by means of honey and grain are
lawful, 621
But any person drinking them to intoxication,
incurs punishment, 621
Mosillis (grape-juice boiled down to a third)
is lawful, 621
General rule with respect to it, 621
Rule in the boiling of unpressed grapes, 622
Or grapes mixed with dates, 622
Having once acquired a spirit is not ren-
dered lawful by boiling, 622
Rule with respect to the use of vessels, 622
Vinegar mav be made from Khamr, 622
And the vessel in which it is so made becomes
pure, 622
Rules with respect to the dregs of Khamr,
622
An injection of Khamr is unlawful, but not
punishable, 623
And so likewise a mixture of it in viands,
623
Of boiling the juice of grapes, 6 '3
There are three general principles to be •It-
served upon this subject, 623
LITIGATION —
Agents for—See AGENCY, 393
Rules in commencement of a, 193
Between buyer and seller, 394
LOAN—
Agent cannot b« appointed to receive, 879
LOANS—
Or Aruat, 478
Definition of Areeat. and tht nature of t» uti
granted in a loan, 47*
Forma under which it is granted, 47S
Tin kmd*r may resuo** it at tUauv*, 47*
INDEX.
747
LOANS — continued.
The borrower is not responsible for the loss
of it, unless he trangress respecting it,
478
He cannot let it out to hire, 479
Or if he let it he becomes responsible, 479
He may lend it to another person unless this
subject it to be differently affected, 479
Objection, 479
Reply, 479
Of money, &c., as opposed to, of specific
property, 480
Land may be borrowed for the purpose of
building or plantations, but the lender is
at liberty to resume it, 480
Land borrowed for the purpose of tillage
cannot be resumed until the crop be reaped
from it, 481
The borrower must repay the charges attend-
ing the restoration of a loan, 481
In restoring an annual borrowed, it suffices
that it be returned to the owner's stable,
481
And in restoring a slave, that he be returned
to his master's house, 481
It suffices to return the loan by a slave or a
servant either of the borrower or lender,
481
If it be returned by a stranger, the borrower
is responsible, 482
Terms in which a contract of, with respect
to land, must be expressed, 482
LOOKTA, OR TROVE PROPERTY, 15-See TROVES,
208
Loss —
Under a Mozaribat contract, 465
Of a loan, 478
LOTS —
Drawing of, in partition, 571
LUNATIC —
Contracts by, 525
Not subject to Zakat, 1
LUNACY,— See SALE, 259
M
MABSOOT, xxviii
MAFKOOD.— See MISSING PERSONS.
MAGisTRATt.—See KAZEE.
May contract infants in marriage in a absence
of natural guardian, 39
Cannot issue a decree affecting absentee, 144
Conduct of, towards women, 598
MAGPIES —
Flesh of unlawful, 591
MAINTENANCE.— See DIVORCE, 140
Father must provide, for his infant children,
146
Difference of religion makes no difference as
to the obligations of furnishing to wife, a
child, 146
Of children incumbent upon father only,
where they have no independent property,
147 f
A man must provide for his indigent parents,
147
MAINTENANCE— continued.
Difference of religion forbids the obligation
of any relation except * wife, parent, or
children, 147
Unless they are aliens. 147
Christian and Mussulman brother are not
obliged to maintain each other, 147
Of parent is exclusively incumbent on the
child, 147
To other relations besides the wife, parents,
or children, 147
A father and mother must provide, to adult
daughters (and also to their adult sons)
who are disabled in proportion to their
respective claims of inheritance, 148
Sisters must furnish, to an indigent brother
in the same proportion, 148
A poor man is not required to support his
relations, except his wife or infant chil-
dren, 148
Definition of the term rich, 148
To parents of an absentee may be decreed out
of his effects, 149
They may take their, out of his effects ; but
a trustee cannot provide it in that manner
without a decree, 149
Of slave incumbent on their owner, 149
Arrears not due on a decreed, 149
Unless where it is decreed to be provided
upon the absentee's credit 149
Case of a wife suing for, 339
Husband may be imprisoned for, 339
MAHAYAT,OR PARTITION OF UsupRUCT.oSee PAR-
TITION, 576
MAHJOOR, 378
MAJBOOB.-— See EUNUCH.
MAJLIS, 38
MAJOOSEES —
Marriage with, 30
MAJKITZ. — See PUBERTY.
MAKAMAT, xxix
MAKAR, 4ll
MAKROOH, 594
MAL—
Almsgift of, includes all property subject to
Zakat, 349
MAL ZAMINEE, 318
MALIK BIN ANS, xxiii
MAMELAT, 584
MAN, 121
MANAGER — See MOZARIBAT, 457
Of Mozaribat stock rules respecting, 454
Dismissal of, 464
Acts which may be performed by, 465
MANAZIL MOLA ZIKA, 570
MANAZIL MOOTBAYENA, 670
MANZIL —See SALE, 294
MANIACS. — See IDIOT, LUNATIC.
Zakat not due from, 1
MANUMISSION.— See SLAVES, 150
MARES —
No hire for covering of, 499 .
Milk possessed of an intoxicating quality, 195
MAREEZ, 324
MARKETS—
Rules concerning, 606
743
INDEX.
MARRIAGE-
VOWS in.— Sec Vows, 169
A female slave may be continued in, by the
purchaser, without his taking possession of
her, 311
An oath cannot be exacted from defendant re-
specting, 402
Claim of, may be compounded, 445
Definition, 25
Chapter I.
Formt under which, may be contracted, 25
Must be contracted in the presence of wit-
nesses, 26 !
Qualification of a witness, 26 |
Persons may witness a, whose testimony would
not b» received in other cases, 26 I
Infidels may witness the, of an infidel women I
27 I
The negotiator of the, contract may also in |
certain cases be a witness to it, 27 |
Of the prohibited Degrees; that is to say, of
Women whom it is Lawful to Marry, and
of those with whom Marriage is Unlaw-
Jul, 27
It is unlawful to marry a mother, or a grand-
mother, 27
A daughter or a grand-daughter, 27
A sister, a niece, or an aunt, 27
Or a mother-in-law, 27
Or a step-daughter, 27
Or a step-mother, or a step-grandmother, 28
Or a daughter-in-law, or grand- daughter-in-
law, 28
Or a nurse, or a foster-sister, 28 |
Or two- sisters, 28 i
Case of two sisters, 28 \
Another case of two-sisters, 28
A man may not marry an aunt and niece, 29 j
Or two women related within the prohibited
degrees, 29 I
A man may not marry a woman and her step- i
daughter, 29
Cases which induce illegality, 29
A man may not marry the iister of his repu-
diated wife during her edit, 30
With slaves, 50
With Kelebas, 30
With M'ijoosees, 30
With Pagans, 30
With Sabeans. jO
During pilgrimage, 30
Mussulmans may marry female slaves, 31
A man already married to a free woman can-
not marry a slave, 31
But a man married to a slave may marry a
free woman, 31
Four wives allowed to freemen, 31
Two to slaves, 31
A man having the full number of wives
allowed, cannot marry during the edit of
one of them, 32
He may marry a woman pregnant by whore-
dom, 32
But Viot a captive taken in that state, 32
He cannot contract his Am-Walid (being
pregnant) to another, 32
Objection, 32
! MARRIAGE— continued.
But he may so contract his enjoyed female
slave, 32
An usufructuary, is void, ?3
And so also a temporary, 33
Case of a double, by one contract, 33
Case of a, by a judicial decree, 33
Chapter II.
Of Guardianship and Equality, 34
An adult female may engage in the contract
without her guardian's consent, 34
Unless the match be unequal, 34
An adult virgin cannot be married against
her will, 34
Tokens of consent from a virgin, 35
Tokens of consent from Siyeeba, 35
Case under which a woman is still considered
as a virgin, in respect to the tokens of con-
sent, 35
Case of allegation and denial, 36
Infants may be contrated by their guardians,
"6
Case in which the marriage of infants con-
tinues binding on infants, 37
Case which admits and option of acquiescence
after puberty, 37
Tokens of acquiescence after puberty, 37
Circumstances which annul the right of
option, 37
Degree of the continuance of a right of
option after maturity, 38
Separation in consequence of option is not
divorce, .^8
Rule of inheritance in case of the, of in-
fants, 38
Persons incapable of acting ag guardians in,
38
Maternal relations may act in defect of the
paternal 38
Or the Mawla of an infant female slave, 39
Or the Magistrate in default of natural guar-
dian, 39
Or the nearest guardian present in the absence
of others, 39
The guardianship over a lunatic rests with
herj>on, 39
OfKtifat or, Equality, 39
Definition of, 39
Equality necessary in, 40
In point of tribe or family, 40
In point of religion, 40
In point of freedom, 40
In point of character, 40
In point of fortune, 40
And in point of profession, 41
Case of a woman contracting herself on an
inadequate dower, 41
Case of a father contracting his infant child
on a disproportionate dower, 41
A father may contract his infant child to a
slave, 41
Of a power of Agency to contract, 42
Agents in, and their powers, 42
Cases of a contract executed by an unautho-
rized person, 42
Cases of the matrimonial agenf exceeding or
acting contrary to his commission, 43
I<NQEX
749
MARRIAGE— continued.
Chapter III.
Of the Mihr, or Dower 44— Sec DOWER
without a dower is valid, 44
Ten Dirma the lowest legal dower, 44
Case of a dower of ten Dirmi, 44
Wife entitled to her whole dower upon the
consummation of the, or the death of her
husband, 44
And to one- half upon divorce before conium-
mation, 44
Objection, 44
Reply, 44
Where no dower is stipulated in the contract,
the wife receives her proper dower, 44
Or a present, in case of divorce before con-
summation, 45
Case of a dower specified after, 45
Case of an addition made to the dower after,
46
A wife may remit the- whole dower, 45
Case of Khalwat-Saheeh, or retirement, 45
Circumstances in which retirement doei not
imply contummation, 46
Exception, 46
Case of retirement of an eunuch, 46
Cases in which the present to wife is
laudable or incumbent, 46
Case of a reciprocal bargain between two con-
tractors, 4/
Case of marriage on a condition of service
from the husband, 47
Cases of a wife remitting or returning the
dower to her husband, either wholly or in
part, 48
The same when the dower consists of effects,
49
Cases of stipulation on behalf of the wife,
49
Case of a dower consisting of property un-
identified, 50
Or underscribed, 60
Objection, 51
Reply, 5i
Case of a dower consisting of unlawful ar-
ticles, 51
Cases of false assignment, 51
A woman is not entitled to any dower under
an invalid, dissolved before consummation,
52
But in case of consummation, she is entitled
to her proper dower, not exceeding what
is specified in the contract, 53
And she must observe an Edit after separa-
tion, 53
A child born in an illegal, is of established
descent, 63
Rtte of the Mihr-Misl, or proper dower, 53
A woman's guardian may become surety for
her dower, 54
Objection, 54
Reply, 54
A woman may resist consummation until she
be paid the prompt proportion of her
dower, 54
Unless the whole dower is deferrable, 54
She may also resist the repetition of the con-
nexion after 'consummation in the like
tifcyrn»tapces, 34
M^RiAGE—conttnued.
But she is, notwithstanding, entitled to her
subsistence, 54
The husband attains full power over hit
wife upon payment of dower, 65
Cases of dispute between the parties con-
rerning the amount of dower, 55
Or between one of the parties and the heirs
of the other, 56
Or between the heirs of both parties, 56
The heirs of a deceased may take the amount
of the specified out of the deceased hus-
band's property, 56
Case of a dispute concerning articles sent by
a husband to his wife, 56
Of the dower of infidel subjects and of
aliens, where none has been stipulated, or
where it consists of carrion, 57
Of the dower of infidel subjects where it
consists of wine or pork, 57
Chapter IV.
Of Slaves :—
Slaves cannot marry without the consent of
their proprietors, 58
Nor Morkatibs, 58
Although such may contract their own female
slaves in, 58
Nor Mokatibs, although they have the same
privilege, 58
A slave may be sold for discharge of his
wife's dower, 68
A Modabbir, or Mokatib, are to discharge it
by labour, 58
How far a master's desiring his slave to
divorce his wife, is an argument to his
aisent to the slave's, 59
Obligation of dower in case invalid mar-
riage, contracted by a slave at the desire of
his owner, 59
Case of an indebted Mazoon contracted in,
by his owner, 59
Objection, 59
Reply. 59
Master may withhold permission from his
female slave to dwell in the house of her
husband, 59
And if he so permit, her husband must sup-
port her, but not otherwise, 60
An owner slaying his female slave before
consummation, has no claim to her dower,
60
The dower of a free woman is due, although
she kill herself before consummation, 60
A female slave, upon obtaining her free-
dom, has a right to annul the marriage
contract, where it was executed with her
owner's consent, 61
But not otherwise, 61
Case of a man marrying a female slave with-
out her owner's consent, 61 ,
Case of a father cohabiting with the slave of
his son, 62
Of a son contracting his female slave in, to
his father, 62 *
The, of a free woman with a slave is an-
nulled by her procuring his emancipation,
62
Objection, 63
Reply, 63
750
INDEX
MARRIAGE — continued.
Chapter V.
Of Marriage of infidels : —
Of infidel couple not dissolved by their
jointly embracing the faith, 63
Unless it be within the prohibited degrees,
63
But if one of them only be converted, a
separation takes place, 63
Apostates are incapacitated from, 64
If either the father or mother be Mussulman,
their children are Mussulmans, 64
Or where one is of superior order of
infidels, and the other of an inferior, their
children are of the superior order, 64
Upon the conversion of one of the parties
the magistrate is to require the othf r to
embrace the faith, and must separate them
in case of recusancy, 64
Obj ction, 64
Reply, 64
If the conversion of either happen in a
foreign country separation takes place
upon the lapse of the woman's term of
Frobation, 65
the wife be an alien, she is not to observe
an Edit from separation, in consequence of
her husband's conversion, 65
The conversion of husband of a Kitabeea
does not occasion separation, 65
Case of a convert removing from a foreign
land into a Mussulman territory, 65
A woman retiring from a foreign a Mussul-
man country, is at liberty to marry, 66
But if pregnant, she must wait her delivery,
66
In the case of apostasy, separation takes
rlace without divorce, 66
man and wife apostatize together, their
marriage continues, 66
Chapter VI.
O/Kissm, or Partition : —
A man must cohabit equally with all his
wives, 66
But the mode of partition is left to him-
self, 67
Where the wives are of different rank or
degree, partition must be adjusted accord-
ingly, 67
Is not incumbent whilst the husband is on
a journey, 67
Retraction of evidence to a, 374
MARRIAGE FEAST —
Invitation to, must be accepted, 596
MARRIAGE SETTLEMENT.— See DOWER,
MARSHA.— See Vows, 171
MASHKBAT, OR WILL.— See DIVORCE, 91
MASJID AL-HIRAM, xxxviii
MASNAD, xxiii
MASTER — ^
Evidence of, in favour of a slave, 361
MASTER AND SERVANT.— Sec HIRE.
MATA — See ZAKAT,
MATAQ , 33
MATERNAL BROTHERS AND SISTERS —
Relations may act as guardians, 38
MATURITY—
Tpne of attaining. — See FULL AOE, PUBERTY,
MAWAKIL, 670
MAWALAT. — See WILLA, 437
MAWALEE, 40
MAWAT, 609
MAWLA.— See MARRIAGE. 39
MAWLA-ASPAL, 517
MAW~A-AILA, 417
MAWLA MAWALAT, 417
MAWLAS,— See WILLS, 692
MAW/. IN, 499
MAZOON.— -See MARRIAGE, 59
MAZOON.— See ZAKAT, 14
MEAL —
Purchase and sale of, 291
Cannot be sold for wheat,— See SALE— 291
Flour may not be sold for, 292
MEASURERS —
The seller must defray expenses of.— See
SALE, 243
MEASURING AND WEIGHING —
In purchase and sale, 286
MECCA —
Rules concerning houses in, 607
MEHRAB, xxxvi
MELONS, 262
MEN —
To observe a modest decorum towards each
other, 603
MERCHANDISE.— See ZAKAT.
Proportion of Zakat levied upon, 12
MIDWIFE —
Evidence of, establishes birth, 426
MIHR, or DOWER,— See MARRIAGE, 44
MIHR JAN —
A Persian festival, 274
MIHR MISL.— See MARRIAGE, 53
MILK. —See SALE, 268
Woman's— See SALE, 270
Sale of, of one animal for an unequal
quantity of another species, does not induce
usury, 293
Case of almsgift of, 350
Of an ass. — See ABOMINATIONS, 595
MILL —
Hire of a, 508
MINES, — See ZAKAT, 14
Upon the sale of lands in which they lie,
become the property of the purchase, 16
MlSKAL —
A drachm an da half, a coin of that weight,
10
MlSKEENS—
Definition of,*19
MISSING PERSONS, 213
Of Mafkoods, 213
Definition of, 213
When a person disappears, the Kazee must
appoint a trustee to manage his affairs
213
Who is empowered to take possession of all
acquisitions arising to him, 213
But cannot prosecute for disputed debts or
deposits, 214
Objection, 214
Reply, 214
The missing person's perishable effects must
be sold, 214
But not those which are imperishable, 214
INDEX
751
MISSING PERSONS— ccrUmUfd I
Subsistence must be afforded o\it of the '
effects to the parents and children of the, j
and to all others who, without a decree, ,
were entitled to it during his presence, j
214
Where there are no effects in the Kazee's
hands, he may furnish the subsistence
from debt or deposits, the property of i
the, 214 |
The Kazee cannot effect a separation between
a, and his wife, 215
A, is to he declared a d funt, 215
At the end of ninety years from his birth,
216
When his wife is to observe an Edit or her
widowhood, 216
And his property is divided among his living
heirs, 216
A missing person's right of inheritance from
a relation cannot be established during his
disappearance, 216
But his portion is held in suspense, 216
And at the end of ninety years (if he do not
appear in the interim) is divided among
the other heirs, 216
Disposal of inheritance in case of a co-heir,
216
MOAJIL, 54
MOAVIAH xix
MOBARAT, 116
MODABBIR.— See MARRIA«I, 58. — SALE, 267—
MOHABAT.— See WILLS, 676, 683
MOHAKILA, 269
MOHAMMED.— See IMAM MOHAMMED,
MOHRIM, xxxix
MOKASA, 267
MOKAYEZA, 267
MOKATIB. — See BAIL, 331.— SALK.
Zakat not due from, 2 '
Marriage of — See MARRIAGI, 58 j
Cannot act for an infant daughter being a !
Musslima, 392, 512
Bequest by.— See WILLS, 674
MOLAMISA, 269
MOLAZIMAT, 532 ;
MONABIZA, 269
MONEY— j
Vows respecting the payment of, 172 i
Purchase and sale of, 315
Declaration of the receiver to be credited
concerning the quality of, 345
Rules in pawning, 640
MONEY ASSAYERS —
Seller must defray expenses of, 248
MONISSAF, 619
MOOBEEA, 241
MOODAA, 399
MoODAA ALI HEI MOOBAINAT, 3tt
MONOPOLIES— •
Forbidden. 605
MOOFTEE—
Qualification of.— See
Duties of, 334
MOOJATHI, 394
MOOXAYEZA, 201
437
MftOKTIDDZI, 597
MOOLTAKIT, 206, 208
MoONTAKKlIt, XXIX
MQOHABIHAT, or SALIS OF PROFIT.— See SALES.
281 *
MOOSE E LE HOO, 670
MOOSH' TfiRRiE, 241
MOOSTAMIN, 147.- See WILLS, 697
Cannot give evidence concerning t Zimmee,
3b3
MOOSTBEEN MARSOOM —See DEEDS, TESTI-
MONIALS, WRITINGS.
MOOTKADIM, 18 •*
MOSAKAT.— -See GARDENING, COMPACT! OF.
MOSILLIS, 621
MOSQUE —
Kazee must execute his duty in. —See KAZBI,
DUTIES OF,
MOTHER —
Right of, as to guardianship of her children.
— see DIVORCE, 138
Not required to suckle her infant, 146
Unless a nurse cannot be procured, 146
Father cannot hire, in capacity of nurse,
146
Must not remove with infant children to a
strange place, 139
MOURNKRS (PUBLIC)—
Testimony of, not admissible, 361
MOURNING (HIDAD).— See DIVORCE, 132
MOWJIL, 34, 18J
MOZABINAT, 269
MOZAKKKB, 193
MOZARIB.— See MOZARIBAT.— MANA«IR
MozAREA.-See CULTIVATION COMPACTS OF, 579
MOZARIBAT.— See ZAKAT, 13
Or co-partnership in the profits of stock and
labour, *54
Definition, 454
A participation in the profit is an essential
of the contract, 454
Chapter I.
Contracts of, art lawful, 454
The stock is a trust in the manager's hands,
454
If the contract be of an invalid nature, tht
manager, in lieu of profit, receives an ade-
quate hire, 455
A manager opposing the proprietor, stands as
an usurper, 455
A, holds only in such stock as admits of
partnership, -155
It requires that the profit be determinate,
455
And not subjected to any uncertainty, 456
That the stock be completely made over to
the manager, 456
A condition of management by the proprietor
invalidates the contract, 456
And so also a like condition by the con-
tracting party, although he be not tht pro-
prietor, 456
The manager is at liberty to act with tht
stock according to his own discretion, 456
But he cannot entrust it to another in tht
manner of, without the proprietor's ooa-
sent, 457
Nof Und it to aaothtr, 459
752
INDEX
MOZARIBAT — continued.
He cannot deviate from any restrictions im-
posed upon him in the contract, 457
Upon violating them, he becomes responsible
for the stock, 457
A restriction to any particular part of a city
is invalid, 458
Unless stipulated under an express exception
of any other place, 458
He may be restricted in his transactions to
particular persons, 458
The contract may be restricted in its opera-
tion to a particular period, *58
Nothing can be purchased by the manager
which is not a subject of property, in virtue
of seisin, with respect to the proprietor,
458
The manager cannot purchase a slave free
with respect to himself, where any profit
has been previously acquired upon the
stock, 459
Purchasing a female slave and begetting a
child, 459
Chapter II.
Of a Manager entering into a contract of
Mozaribat with another, 460
A manager entrusting the stock in his hands
to a secondary manager, is responsible to
the proprietor upon any profit being made
upon it, 460
Where so entrusted with the proprietor's con-
currence, 461
The contract may stipulate a proportion of
the profit to the slave of the proprietor,
463
But if slave engage in such a contract on
behalf of his master, it is invalid, 463
Chapter III.
Of the dismissal of a manager, and the divi-
sion of the property, 463
The contract is dissolved by the death of
either party, 463
Or by the apostasy and expiration of the
manager, 463
If he apostatize without going to a foreign
country, the contract still continues in
force, 464
All acts of manager are valid until he be
duly apprized of his dismissal, 464
After being so apprized he may still convert
what remains on his hands into money,
464
But if it have been already converted into
money, he cannot transact with it, 464
Unless this money be of a species different
from the original stock, in which case he
may convert it into money of a different
species, 464
If at the dissolution of the contract the
stock consist of debts, the manager must
be compelled to collect them, where any
profit has been acquired, 464
All loss upon the stock is placed upon the
profit, 46
If the profit be divided previous to a restora-
tion of the capital, and any accident after-
wards befall the stock, the manager must
re/urn the portion of profit he had re-
ceived, 465
MOZARIBAT — continued.
The manager is not responsible for defi-
ciency, 465
The profit received by the manager is no way
implicated with respect to any new con-
tract between the same parties, 4c5
Chapter IV.
Of such act as may lawfully be performed
by a Manager, 465
A Manager may sell the stock, either for
ready money or upon trust, 465
Or entrust a slave with the management of
it, 465
Or, having sold it for ready money, may
grant a suspens'on of payment, 465
Or allow the purchaser to transfer the pay-
ment upon another person, 465
The acts of a manager are such as he is em-
powered to perform by the contract, 466
Or in virtue of a general and discretionary
power vested in him by the proprietor,
466
Or such as he is not empowered to perform
in either way, 466
A manager is not allowed to contract male
and female slaves forming a part of the
stock, in marriage to each other, 466
Any part of the stock delivered by the
manager to the proprietor in the manner
of a Bazat, still continues to appertain to
the, stock, 467
Objection, 40 /
Reply, 467
No part of the manager's expenses to be de-
frayed unless he travel, 467
To a distance beyond a day's journey from
the usual place of his abode, 468
And it is defrayed out of the profit, not out
of the stock, 468
All expenses incident to the sale of stock
must be defrayed out of that, 468
All expenses upon articles purchased which
do not substantially add to the article, are
voluntary on the part of the manager, 468
Case of loss of the stock after a profit
having been acquired and debt incurred
upon it, 468
Cases of sale by the employer to the manager
469
Or by the maneger to the employer, 469
Case of a slave purchased by the manager
and who is afterwards guilty of homicide,
469
The man ger bargaining for an article, and
then losing the stock, must have recourse
to his employer for another stock, to
enable him to fulfil his enagement, 470
Chapter V.
Of Disputes between the Proprietor of the .
Stock and the Managert 470
In disputes respecting the acquisition of
profit upon the existing stock, the asser-
tion of the manager is to be credited, 470
But in disputes concerning the proportions of
profit, that of the proprietor, 471
As also in disputes concerning the nature of
the agreement under whfch the stock was
entrusted to the manrger, 471
INDEX
758
MOZARIBAT — continued.
If the proprietor assert a restriction, the
denial of the manager is credited, 471
Hut if each allege t different restriction, the
allegation of the proprietor is credited, 471
In disputes concerning restriction to time,
the evidence which proves the latest date
is preferred, 471
MULES — See ZAKAT.
Flesh of, unlawful
MUSSULMAN LAW—
Foundation of, xvi
MUSSULMAN —
If either the father or mother be, their chil-
dren are, 64
Where one ii of superior order, the other of
inferior, their children are of the former,
64
May enjoy bequest from an infidel, 64
N
NABATHEANS.— See PUNISHMENT, 199, n.
NABEEZ. — See PUNISHMENT, 196
NAHR —
Camels must be slain by, 591
NAJISH —
In purchase and sale, prohibited.
NEIGHBOUR—
Rights of. — See SHAFFA.
Bequest to.— WILLS.
NEIGHBOURHOOD — See SHAFFA.
NECESSARIES OF LIFE —
Zakat not due upon, 2
NEUTRAL PROPERTY, 229
NIFKA,— See DIVORCE, 140
NIHR for NAHR, 121
NIKKAH.— See MARRIAGE,
Meaning of, 44
NISBA. — See ZAKAT —
Of camels, 4
Of kine, 5
Of personal effects, 9
Of silver, 9
Of gold, 10
NOOKOO ZABEKB, 620
NOOZOOL—
A term applied to portions of the Koran, 68
NUISANCES.— See FINES, HIGHWAY, 660
Placed in the highway. — See FINES, 660
NULL SALE, —See SALE.
NURSE—
Hire of, 500
Father must procure for infant, 146
O
OATH.— See CLAIMS 406
Administered to seller and purchaser, 407
Forms of : —
Imposed by magistrate, 175
Rules of administering, 405
When tendered to defendant, 401
Taken upon, compulsion. — See COMPULSION.
OBEYDOOLA, xix
OCEAN —
Water of the, 614
OFFENCES AGAINST THE PERSON, 659
Offspring, claim of, 402, 403, 424
Of an animal, claim laid to, 419
OMAR, xvi
OPTION. — See DIVORCE, 87. — HIRE, 510
SALE, 248
Of acquiescence in the match of a child after
puberty, 36
OPTION OP INSPECTION. — See SALE, 255
OPTIONAL CONDITIONS. — See SALE, 248
ORNAMENTS, 597— See Vows, 172
ORPHANS. —See INFANTS, FOUNDLING.
Kazee may lend property of, :43
Guardianship of, vested in magistrate, 39
Deeds of gift in favour of, 484
OSOOL, xxvi
OTTERS —
Flesh of, unlawful, 591
OTHMAN, xvii
OUTLAWRY.— See EXPATIATION.
PAGANS—
Marriage with, 30
PARAPHERNALIA OF A WIFE —
Rules concerning,
PARENTAGE . —See ACKNOWLEDGMENT. — Di
VORCE, 134
Claims of, 422
Acknowledgment of, with respect to infants*
439
Not lawful to compound with a woman for a
claim of, 445
PARENTS —
A man must provide maintenance for hit in*
digent, 147
Difference of religion forbids maintenance
of any relation except a wife, parents, of
children, 147
Maintenance of, is exclusively incumbent on
the child, 147
Maintenance to, of absentee may be decreed
• out of his effects, 149
May take their maintenance out of his
effects, but a trustee cannot provide it in
that manner without a decree, 149
Arrears not due in a decreed maintenance,
149
Unless where it is decreed to be provided on
the absentee's credit, 149
PARTITION.— See MARRIAGE, 66
Chapter I.
Of Partition, of Kismat, 665
Partition involves a separation in articles of
weight or measurement of capacity, 565
And an exchange in articles of dissimilar
parts or unities, 565
The magistrate must appoint a public par*
titioner, and must appoint him a salary,
566
Or establish a particular rate of hire for hia
work, 566
INDEX
PARTITION — continued.
The partitioner must be just and skilful. 566
But must not always be the same person, 566
The partners may agree to a partition, pro-
curing (if one be an infant) an order from
the magistrate, 566
One public partitioner cannot be concerned
with another, 566
The partitioner is paid in proprrtion to the
number of claimants, 566
In the distribution of hereditaments, the
magistrate must previously ascertain the
circumstances, 567
But not if the property consists of movables,
567
Nor in the case of property acquired by pur-
chase, 567
Objection, 567
Reply, 567
Nor in case of a, being demanded without
the parties specifying the manner in
which the joint property was acquired,
567
A, may be granted on the requisition and
testimony of any two heirs ; but an
agent or guardian must be appointed to
the charge of the shares of the absent or
infant heirs, 568
And it cannot be granted where the property
or any part of it is held by an absent heir,
or his trustee, or an infant, 568
The, maybe ordered, although one of the
requiring parties be an infant, one an
infant heir, and the other a legatee, 568
Chapter II
Of Things which are fit Objects of Parti tton,
569
An estate may be distributed on the requi-
sition of any one partner whose share sepa-
rately is capable of being converted to
use, 569
If the shares be separately useless the assent
of all the parties is requisite, 509
A, must be ordered where the property
consists of articles of one species (not
being land or money), 569
But not where it consists of various species,
569
Or of household vessels, 569
A, may be made of cloth of an equal
quality, 569
But not of jewels or slaves, 569
Cannot be made of a bath, mill, or well,
without the consent of all the parties,
570
Of houses or tenements, 570
Chapter III.
Of the Mode of accomplishing Partition, 671
The partitioner must draw a plan, and must
make the distribution equitably by mea-
surement o ^appraisement, 571
Of bouses, how accomplished, 671
In the partition of landed property, a com-
positipn in money cannot be admitted, 571
Of a house, with a piece of ground, 571
Qf land where there is a road or drain, 571
In case of a dispute concerning the road.it1
must be divided, 572
PARTITION— c
The parties may make a private agreement
with regard to it, 572
Complicated partition of different houses and
tenements, 5/2
In disputes after partition, the evidence of
two partitioners must be admitted, 572
But not that of one partitioner, 573
Chapter IV.
Of pleas of Error in Partition and of Claims
of Right in regard to it, 573
A plea of error cannot be admitted where
the party acknowledges having received
his share, unless it be supported by evi-
dence, 57 J
A complaint of after assumption, is a com-
plaint of usurpation, 574
In case of a complaint of non-delivery, both
parties are sworn, and the partition is
dissolved and made anew, 574
A plea of error cannot be heard if the parti-
tion was made by the parties, 574
Case of a claim laid to a particular room in
a house after partition, 574
Of the laws which prevail in a claim of
right, 574
In a case of claim setup to an indefinite
part after partition, it must be dissolved
and made anew, 574
If a definite part be claimed after partition,
it must be compensated for from the shares
of the other partners, or the partition
must be dissolved and executed anew, 574
And so likewise, if an undefined part be
claimed, 575
A debt proved against an estate annuls the
partition of it among the heirs, 575
Unless the creditor remit it, or the heirs
discharge it, 576
An heir may prefer a claim upon an estate
after partition, 576
A claim cannot be set up by an heir to any
particular article after distribution, 576
Chapter V.
Of the Laws of Mohayat, 576
Mohayat is a partition of usufruct, 576
And is not annulled by the decrees of the
parties, 576
Partners may make it by allotting to each the
use of a particular part of the joint con-
cern, 576
In which case either is at liberty to let his
share, 576
Or by stipulating an alternative right to the
use, 576
A difference between the parties must be
settled by the interference of the Kazee,
576
Case of partition of the use of two slaves,
577
Or of two houses, 577
Or of two quadrupeds, 577
Of the advantage from a house may be
affected by each party letting it to hire
alternately, 577
And occasional excess in the ,, rent being
equally divided between them, 578
INDEX
755
PARTITION — continued
In a case of pariition of the advantage from
two houses, neither party is accountable
for any excess, of rent to the other, 578
Case of partition of the advantage from to
slaves, 578
A partition of advantage from two quad-
rupeds, 578
A partition of usufruct cannot be made with
regard to productive articles, 578
PARTITIONER—
Office of a public, 566
PARTNER. — See BAIL, 327. — GUARANTEE
Evidence of one in favour of another, 361
In dissolution of a reciprocity partnership,
each is responsible for any debts contracted
under their partnership, 331.— See HIRE,
591
One cannot construct water-engine on rivulet
without consent of, 617
PARTNERSHIP. — See COMPOSITION, 450
In profits of stock and labour, 454
or SHIRK AT —
Definition of Shirkat, 217
Partnership is lawful, 217
Of two kinds, 217
By right of property, 217
By contract, 217
By right of property, is either optional or
compulsive, and does not admit of either
partner acting with respect to the other's
share, 217
By contract, 217
Of four descriptions, 217
By reciprocity, 217
In traffic, 21?
In arts, 217
Upon personal credit, 217
Description of, by reciprocity, 217
It requires equality in point of capital, 227
And of privileges, 217
And similarity of religion and sect, 218
The term reciprocity must also be expressed
in the contract, 218
It is lawful between free adults, whether
Mussulmans or Zimmees, 218
It is not lawful between a slave and a free*
man, or an infant and an adult, 218
Or a Mussulman and an infidel, 218
Nor between two slaves, two infants or two
Mokatibs,218
It comprehends both agency and bail, 216
A purchase made by either partner is partici-
pated between both, except in articles of
subsistence, 219
A debt incurred by either partner is obli*
gatory upon the other, 219
Bail for property engaged in by either partner
is binding upon the other, 219
Unless it be engaged in without consent of
the surety, 220
An accession of property to either partner
by gift or inheritance, resolves a, by reci-
procity into a, in traffic, 220
Unless the property be of a nature incapable
of continuing stock, 220
By reciprocity, cannot be contracted but in
cash, 220 I
PARTNERSHIP — continued.
And copper coinage is comprehended under
cash, 221
Or in gold and silver bullion, where that
passes in currency, 221
Or, according to Mohammed, in homogneous
stocks, after admixture, 222
It cannot be contracted respecting hetero-
geneous stocks, 212
By right of property, is effected by each
partner selling one half of his stock to the
other, 222
Description of, in traffic, 222
It does not admit mutual bail, but it requires
mutual agency, 22*
It admits of inequality in point of stock, 223
And also of a disproportionate profit, 223
A person may engage a part only of his pro-
perty in it, 224
The stock can only be such as is lawful in
reciprocal, 224
But the respective stock may be hetero-
geneous, 224
Debts can only be claimed from the partner
who incurs them, 224
And this partner, on making payment, has
recourse to the other for his proportion. 224
The contract is anulled by the loss of the
whole capital, or of the stock of either
partner in particular, 224
And in the last case the loss falls upon the
partner to whom such stock had belonged,
224
Unless it had perished after admixture, 225
A purchase made by one partner, where the
stock of the other afterwards perishes, is
participated in both, and the, continues
in force agreeably to the contract, 225
But if it perish before the other's purchase,
that continues between them under a, by
right of property, 225
Unless there be no mention of mutual agency
in the contract, for in this case it belongs
solely to the purchaser, 225 "
Holds without admixture of stock, 225
Does not admit a specification in behalf of
either partner, 226
Either partner may make over his property
in the manner of a Bazat, 226
Or lodge it as a deposit, 226
Or intrust it to the care of a manager by
Mozaribat, 226
Either partner may also appoint an agent on
his own behalf, 226
Each partner holds the stock in the manner
of a trustee, 226
Description of, in arts, 227
It is not requisite that the parties both follow
the same trade, or reside in the same place,
227
Objection, 227
Reply, 227
It admits an inequality of profit, 227
The work agreed for by either partner is
binding upon the other, and either is at
liberty to call upon the employer for pay-
ment, 227
Description of, upon credit, 228
It may include reciprocity, 228
766
INDEX
PARTNERSHIP— continued.
Each partner is agent for the other, 228
The profit of each must be in proportion to
the thare of each in the adventure, 228
Of invalid, 229
Does not holds in articles of a neutral nature,
229
Unless they be taken possession of jointly,
229
Nor in this instance, where the meens of
acquiring them are different, 229
The profit to each partner must be in pro-
portion to the stock, ^9
ft contract of, is annulled by the death or
apostasy of either, 229
Whether the survivor be aware of that event
or not, 230
A person cannot pay Zakat upon his partner's
property without his permission, 230
Case of mutual permission to pay Zakat, 230
A female slave, purchased under a contract
of reciprocity, becomes the property of
that partner who, with permission of the
other, has carnal connexion with her, 231
But he seller may take the price from either,
231
PASSAGE —
Cannot be made into a private lane, 344
PATERNAL BROTHERS AND SISTKKS.
PATERNITY. —See PARENTAGE.
PAWN AGE —
A plea of, and seisin is preferable to a plea
of gift and ititin.— Stt CLAIMS, 417
PAWNS —
Rahn, 629
Chapter I.
Definition of Rahn, 629
Is established by declaration and acceptance,
and confirmed by the receipt or the pledges,
630
Upon the pawnee taking possession of the
pledge, the contract becomes binding, 630
And he the pawnee is responsible for the
pledge. 630
Which he is entitled to detain until he re-
ceive payment of his debt, 631
Without admitting the pawnor to any use of
it, 6^1
The debt to which the pawn is opposed must
be actually due, 63 1
The responsibility for the pledge extends to
the amount of the debt owing to the
pawnee, 631
The pawnee may demand payment of his
debt, and imprison the pawnor in case of
contumacy, 631
It is required of the pawmee, before payment,
to produce the pledge, 631
But if he Demand payment in a distant
place, he is not required to produce it,
unless this can be done without expense,
632
The fTiedge may be sold at the desire of the
pawnor, and the pawnee cannot afterwards
be required to produce it, 6)2
He mutt produce it on receiving a partial
payment, as well as in case of a complete
discharge, 632
PAWNS — continued.
Cases in which he is not required to produce
it, 632
The pawnor cannot reclaim the pledge on the
plea of selling it for the discharge of the
debt, i 33
The pawnee must restore what he has re-
ceived inpayment if the pledge perish in
his hands, 633
The contract is not dissolved until the pledge
be restored, 633
Tie dept is discharge by the loss of his
pledge, 633
The pawnee is not entitled to use the pledge,
633
Or to lend or to let it to hire, 633
He may consign it in charge to any of his
family, 633
If he transgress with respect to it, he is re-
sponsible for the whole value, 633
The use of the pledge is determined by the
pawnee's mode of keeping or wearing it,
633
The expenses of conservation of the pledge
rest upon the pawnee, and those of sub-
sistence upon the pawnor, 634
But those incurred by sickness, or by offences,
must be defrayed by both, 634
Taxes are defrayed by the pawnor, 634
Tithes, upon pawned lands have preference
to the right of the pawnee, 634
If either party voluntarily defray what is
incumbent on the other, he has no claim
upon him on that account, 634
Chapter II.
Of Things capable of being Pawned, and of
Things for which Pledge may be taken,
635
An indefinite part of an article cannot be
pawned, 635
Even to a partner in the article, 635
If the pledge be rendered indefinite by any
supervenient act or circumstance, the con-
tract of pawn is annulled, 635
An article naturally conjoined to another
cannot be pledged separately, 635
Trees, however, may be pawned with the
immediate spots on which they grow,
without including the rest of the land,
635
A claim of right established in a separable
part of pledge does not annul the contract
with the respect to the remainder; 636
Occupancy, so as to obstruct a delivery of the
pledge to the pawnee, prevents his being
responsible for it, 636
Pledges cannot be taken for trusts, 636
Nor for anything not insured with the holder
of it, 636
Nor as a security against contingencies, 637
Of, in bargains of Sillim or Sirf, 637
A freeman, a Modabir, a Mokatib, or an
Am- Walid cannot be pawned, 637
Cannot be taken to secure the appearance of
a surety, or of a criminal liable to re-
taliation, 638
Or in security for a right of Srwffa, 638
Or for a criminal slave, or the debts of a
slave, 638
INDEX
757
PAWNS — continued.
Or for the wages of a public singer or
mourner, 638
A mussulman cannot give or take wine in,
but if he so receive wine from a Zimmee,
and it be destroyed, he is responsible, 638
A pawne is still responsible for the pledge,
although it appear that the debt to which
it was opposed is not due, 638
A father or guardian may pledge the slave of
his infant ward for a debt owing by him-
self, 638
But they are accountable in case of loss, 638
And they may also authorized the pawnee to
sell the slave, 639
A father may retain the goods of his infant
child in pledge for a debt owing from the
infant to himself, or to another infant
child or to his own mercantile blave, 6^9
But a guadian has not this privilege, 639
Yet he may also retain the goods in, for
necessaries furnished by him, 639
A child cannot recover property which had
been pawned by his deceased father, but by
redeeming it, 639
If he redeem it during the father's lifetime,
he has a claim on him for what he pays,
639
And the father is responsible in case of the
pledge beir.g lost, 639
Case of a guardian pawing the goods of his
orphan ward, and then borrowing and
losing the pledge, 639
Money, and all weighable and measurable
articles may be pledged. — Rules to be ob-
served in these instances, 640
Case of a silver vessel pawned and afterwards
lost, 641
Or broken, 641
A pledge may be stipulated in sale for the
price of the article sold, 641
But the agreement is not valid unless the
pledge be particularly specified, 641
Nor can the purchaser be compelled to deliver
it, 641
An article tendered by a purchaser in security
for the price of the merchandize is consi-
dered as a pledge, although the term
pawn be not expressly mentioned by him,
642
Where two or more articles are opposed in
pledge to one debt, they cannot be re-
deemed separately, 642
An article pawned to two persons in security
of a debt jointly owing by both is pledged
in toto to each, 643
And if they agree to hold it alternately, each
is, in his turn, trustee on behalf of the
other, 643
If two persons, respectively, claim an article
from a third, in virtue of an alleged,
and both produce evidence, the claim of
both is null, 643
Objection, 643
Reply, 643
If a partner dit, leaving an article in pledge
with two pawnees, it is sold for the dis-
charge of their claims, 643
PAWNS — continued.
Chapter III.
Of Pledges placed in the Hands of a Trustee,
The parties may, by agreement, entrust the
pledge to the custody of any upright per-
son, 614
After which neither of them is at liberty to
take it out of the trustee's hands, 644
But the pawnee is responsible, in case of loss,
644
Unless the trustee has transgressed, in which
case he is responsible, ^44,
Rules to be observed in this instance, 644
The pawnor may commission the pawnee or
any other person, to sell the, and discharge
the debt ; but he cannot reverse the com-
mission, if it be included in the contract,
645
Rules with respect to an agent appointed to
sell a pledge, 645
The pawnee cannot sell it without thepawner's
consent, 645
The agent, at the expiration of the term of
credit, may be compelled to sell the pledge,
645
If the pledge be sold by commission from the
trustee, the purchase money is subsitued
in the place of it, 646
If the trustee, having sold the, and paid off
the pawnee, be exposed to any subsequent
loss, he may reimburse himself from either
party, 646
But if he was commissioned by the pawnor
after the contract, he must recur to him
alone for indemnification, 646
A stranger proving his right in a pledged
slave, who had died with the pawnee, may
seek his compensation from either party,
647
Chapter IV.
Of the Power over Pawns, and of Offences corn-
mi tied by or upon them, 647
A pledge cannot be sold without the pawnee
consent, 647
Who, if the pawnor sell it more than once
may ratify either sale, 648
A pawned slave may be emancipated by the
pawnor, 648
Objection, 648
Reply, 648
Who, if he be rich, may substitute the value
in pawn for the slave, 648
But if he be poor, the slave must perform
emancipatory labour to the amount of his
value for the discharge of the amount of
the pawnee's claim, 648
Although he should have denied being in
pawn previous to such manumission, 649
A pawnor may create his pawrTed slave a
Modabbir or Am-Walid, 649 .
And if he be rich, he must substitute the
value in pawn; but if he be poo* the
slave must perform emancipatory labour
to the full amount of the debt, 649
The pawnor, on becoming rich, is responsible
for the emancipatory labour in the former
instance, but not in the latter, 649
758
INDEX
PAWNS — continued. , ]
An emancipated Modabbir does not owe the
pawnee labour beyond his value, 649
Destruction of the pledge by his pawnor,
649
By a stranger, 650
Or by the pawnee, 650
A depreciation in the value of the pledge
occasions a proportionable deduction from
the pawnee's claim, 650
The pawnee lending the pledge to the pawnor,
is freed from responsibility during the loan,
650
But he may resume it at pleasure, and then
his responsibility reverts, 650
Objection. 650
Reply, 650
The pledge being lent to a stranger by either
party, is no longer a subjtct of responsi-
bility, 650
The pledge, on being disposed of by either
party, with the consent of the other, is
excluded from the contract, 650
A person borrowing an article, with intent to
pawn it, is restricted in the pawn according
as he specifies the particulars of the debt,
&c., or otherwise, 651
And if he transgress, is responsible for the
value in case of loss, 651
But not if it be lost before pawn, or after
redemption, 652
On disputes concerning the loss of the pledge,
the deposition of the borrower is credited
with respect to the person in whose hands
it was lost, and that of the lender with re-
spect to the restriction of the loan, 652
A person receiving a borrowed article in
pledge on the faith of a promise, must pay
the sum promised to the pawnor who again
pays the same to the lender, 652
The lender of a slave to pawn may emancipate
him, lodging the value with the pawnee, in
substitute for the pledge, 652
The borrower transgressing upon the article
(before pawn or after redemption;, and then
ceasing from such transgression, is not re-
sponsible in case of loss, 652
A pawnor destroying the pledge, is responsible
to the pawnee for the value, 652
And so in proportion for any injury he does
to it, 625
And finable offence committed by a pledged
slave upon either the person or property of
his pawno- is of no account, 653
Nor such offence committed by him upon the
person of the pawnee, 653
Nor upon his property, provided his value do
not exceed the debt for which he stands
pledged, 653
But his o^nce against the son of his pawnee
is cognizable, 653
If the pledge be destroyed after depreciation,
the pawnee must remain satisfied with the
compensation he recovers from the destroyer,
653
But if, after such depreciation, he aell it by
desire of the pawnee for payment of his
fteim, he is still entitled to any deficiency,
654 4
PAWNS— continued.
The pawnor must redeem a slave of less value
(received by the pawnee in compensation
for having slain the slave in pledge) by pay-
ment of his whole, 654
The fines incurred by a pledged slave must
be defrayed by the pawnee, 655
But if he refuse, they are defrayed by the
pawnor, who charges the pawnee accord-
ingly, in liquidation of his debt, 655
Rules with respect to the debt incurred by a
pledged slave destroying the property of a
stranger, 655
If the value of the slave be twice the amount
of the debt, the fines incurred by him are
defrayed equally by both parties, 656
The executor of a deceased pawnor may sell
the pledge and discharge the debt, with
the pawnee's concent, 656
An executor cannot pawn effects of the de-
funct to any particular creditor, 656
Unless there be only one, 656
He may receive pledges in security for debts
owing to the defunct, 656
Grape-juice still remains in pawn after having
become wine and then vinegar, 656
A pledge destroyed in part is still retained
in with respect to the remainder, 657
Any increase securing from the pledge is
detained in, along with it, o57
The pawnee using the product from the
pledge by permission of the pawnor, is not
liable for anything on that account, 657
The pledge may be augmented, but not the
debt, 658
Increased to a pledged female slave, 658
Of a pawnor committing one slave in pawn
for another, 658
The pawnee is not responsible for the pledge
after having acquitted the pawnor of his
debt, 658
If the pledge be destroyed with him after
he has received payment of his debt, he
must return what he has received, and the
debt stands liquidated, 659
So likewise if he compound the debt, 659
Or if the pawnor, with his concurrence,
transfer the debt upon another person,
659
If the pledge be lost after the parties agree-
ing that no debt had existed, it stands as
a discharge of the supposed debt, 659
PAWNOR —
Law in case of the death of, 643
PAWNHOLDER, 397
PAYMENT —
Period of, in sale must be fixed, 242
PEARLS—
Not subject to impost, 16
Law in sale of, 308
Pious BEQUESTS.— See WILH, 688
PERISHABLE COMMODITIES —
Purchase and sale of, — See Vows
PERSON—
Offence against the, 659
PHYSICIANS—
Behaviour of, tow?rd§ women,
,— See
INDEX
759
PILGRIMAGE. -See INHIBITION, 529.-Vows, 171
By a prodigal, 529
Bequest towards the performance of, 688.
701
Pious PURPOSES —
Appropriation of property to, 231
Bequests to. — See WILLS.
PITCH.— See ZAKAT, 19
PLAINTIFF —
Difference between, and defendant, 405. —
See CLAIMS.
Must state the object of his claim, 400
Is not required to swear, 401
Evidence on behalf of, preferred to that of
defendant.-— See OATHS, 401
PLATE—
(Gold and silver) purchase and sale of, 313
PLAY. — See GAMING.
PLEA—
Of previous usurpation : deposit or pledge,
in resistance of a claim, 413
Of previous purchase does not defeat a
claim, 414
Of trust opposed to an alleged usurpation, 42
Of dissolution — See PRETEXT.
PLEDGE,-— See BAIL.— PAWNS.
POLYGAMY —
In what degree allowed, 31
PORK—
Dower consisting of, 57 — Sec SALE, 309. —
USURPATION, 544
PORTKR —
Hire of a, 497, 504
POSSESSION. — See SALE —
Force of, in claims, 401, 418
The right to an article is not established by
evidence to the former possession of it,
369
Unless the defendant acknowledge such
former, 369
Or two witnesses attest such acknowledg-
ment, 369
Disputes concerning, 421
POSTHUMOUS GRANTS, 489
Posthumous Children, 135
POVERTY —
Plea of, in resistance of claim, 339
PRACTICAL DIVINITY —
Enters into judicial determination, xiv
PRAYING —
Case of a vow against, 171
Vain invocations in, 607
Bequests towards performance of, 688
PRECIOUS STONES.— See ZAKAT, 16
PREEMPTION.— See SHAFFA—
Right of, may be enforced against an agent
before delivery to his principal, but not
afterwards, 381
PREGNANT V/OMEN —
Punishment of, for whoreing, 182
PREGNANCY —
Term of. — See DIVORCE, 137
PRELIMINARY DISCOURES, 1—50
PRESENT —
To be bestowed $n divorced wife, 45
To magistrate, 337
PET*XT OR PLEA —
For dissolving contract of hire, 510
Of contract of cultivation, 583
PRINCIPAL,— See BAIS, 318
PROCURATOR —
Office of, to a pious or charitable founda-
tion, 232
PRODIGAL. — See INHIBITION, 527
Pilgrimage by, 529
PRODUCT —
Of lands watered by natural means subject
to a tithe, 16
PROFIT —
Sale of, or Moorabihat. — See SALES, 281
Acquired in partnership division of, 222, 223
226, 227, 229
Right to, how established, 228
Acquired under invalid contract, 278
In a moorabihat sale, 283
In contracts of mozaribat, 455 465, 468
PROHIBITED LIQUORS, 618 — 628
PROHIBITED DEGREE. — See FOSTERAGE.— MAE •
RIAGE.
PROFITABLE SALES — See MOORABIHAT.
PROHIBITED MEATS—
Eating of, upon compulsion, 521
Of what consisting, 591
PROPERTY —
Definition of,— See DIVORCE, 110
PROPERTY —
Zakat not due upon uncertain, 2
Unknowingly disposed of without an equiva-
lent, does not destroy the proprietor's
right in it, 15
Of a founding, 207
Lost and found, 208
Of a missing person, 214
What articles may legally represent, 220-222
Immovable — See LAND.
Bail for, 320
Evidence to a right of, 358
Movable and immovable, 400 — 401
Stolen, responsibility for, 403
Acknowledgments with respect to, 428, 435
Destruction of, upon compulsion, 522
Destruction of an infant or lunatic, 525
Right of, may be attested from seeing an
trticle in possession of another, 359
PROSELYTE —
Evidence of a, 360
Inheritance to the estate of, 517
PUBERTY. — See FULL AGE. — INHIBITION, 529,
— MARRIAGE
Of a boy, 529
Of a girl, 529
Their declarations credited, 530
PUBLIC TREASURY —
Claims the estate of a person who dits with-
out heirs, 517
PUBLIC PROPERTY. — See PROPERTY.
PUBLIC PAITITIONERS. — See JOINT PROPERTY.
PUNISHMENT — ^
Oath cannot be exacted from defendant in
claims respecting, 402
Execution of, 352
Hoodood, 175
Definition of Hidd, 175
760
INDEX
PUNISHMENT ^-continued.
Chapter I
Of Zinna, or Whoredom, 176
Whoredom may be established by proof or by
confession, 176
Four witnesses are necessary, 176
Who must be particulary examined with
respect to all the circumstances of the
fact, 176
Confession must be repeated four different
times, 177
A person may retract from his confession, 178
Of the manner of punishment, and of the
infliction thereof, 178
A married person convicted of whoredom is
to be stoned, 178
Mode of executing Iapidat5on, 178
An unmarried free person is to be scourged
with 100 stripes, 178
Mode of executing scourging, 179
The stripes must not all be given on one part
of the body, 179
Scourging must be inflicted upon a man
standing and upon a woman sitting, 179
A slave to receive fifty stripes, 179
A woman is not to be stripped, 179
Slaves cannot be punished for whoredom
but by authority, 180
Definition of the state of marriage which
subjects an adulterer to lapidation, 180
Stoning and scourging cannot be united,
181
Nor with respect to a woman, scourging and
banishment, 181
The execution of stoning is not suspended by
reason of sickness, 181
But it is so on account of pregnancy, 181
A pregant woman convicted upon evidence
must be imprisoned, 182
Chapter II.
Of the Carnal Conjunction which occasions,
and of that which does not occasion it, 182
Definition of Zinna, 1^2
Definition of erroneous carnal conjunction,
182
Parentage is established in a case of error
with respect to subjects, but not in a
case of error with respect to the act, 182
And there is no punishment in either case
183
A contract of marriage prevents although
avowedly illegal, 183
Connexion with a wife thrice divorced
before the expiration of her edit occasions,
183
Connexion with a wife divorced by implica-
tion does not induce, 183
Nor that with a female slave of a son or
grandson, 183
Or of a father, mother, or wife, where mis-
concepuon is pleaded, 183
Is incurred by connexion with the slave of a
brother, 184
Connexion with a woman married by mis*
take does not occasion, 1 84
Connexion with a woman under an unlaw-
ful marriage does not induce, 184
ctsofiasciviousness arc to be corrected by
Faceer, 184
PUNISHMENT — continued.
And so likewise sodomy committed with a
strange woman, 185
And bastiality, 185
Is not incurred by committing whoredom in
a foreign country 185
May be inflicted by chief magistrate within
his camp, 185
Case of whoredom committed between infidel
subjects and aliens, 186
Whoredom committed by an infant or an
idiot does not induce, 186
Objection, 187
Reply, 187
Whoredom committed upon compulsion does
not subject to, i87
Case of one of the parties confessing whore-
dom and other pleading marriage, 187
Case of whoredom with the female slave of
another, who dies in consequence, 187
Or who goes blind, 188
The sovereign is not punishable, but is
responsible for property, and liable to
retaliation, 188
Chapter III.
Evidence of whoredom, and of retraction
therefrom, 188
Delay in giving evidence destroys its validity,
except in case of slander, 188
Delay also prevents, after the Kazee's decree
of it, 189
Limitation of the delay in question, 119
The evidence of a witness is valid against
one of the parties, although the other be
absent, 189
Objection, 189
Reply, 189
Unless the other be unknown, 180
Case of a contradiction in evidence, 189
•Objection, 190
Reply, 190
Contradiction amongst the witness with
regard to place, prevents the, 190
Evidence agreeing in point of time, but
contradictory in point of place, does not
occasion, 190
Evidence against a woman who is afterwards
proved to be a virgin is void, 190
Incompetent witnesses, by bearing testimony
to whoredom, incur, for slander, 191
Evidence of reprobate persons is neither
attended with, for whoredom to the
accused, nor with, for slander to the
accusers, 161
Witness defective in point of number incur,
for slander, 191 •
And so also, of the complete number of
witnesses, where one of them afterwards
proves incompetent ; but no fine is due i
this case, except the accused suffer lapida
tion, when a deyit is due from the pubiL
treasury, 191
The testimony of secondary witness in-
validates that of primary witnesses, 192
One of four witnesses retracting, after lapi-
dation upon the accused, incures for
slander, and is responsible for one-fourth
of the fine of blood, 192
INDEX*
761
PUNISHMENT — continued.
But if he retract before lapidation, all the
witnesses are liable to, 192
One of the five witnesses retracting does not
incur, or fine, 193
Where justified witnesses prove afterwards
defective, the fine of blood is due from the
purgators of these witnesses, 193
Case in which the fine of blood falls upon
the slayer, 194
Evidence of whoredom is valid, although
the knowledge of the fact be unlawfully
obtained, 194
The accused's plea of celibacy, if unfounded
does not prevent lapidation, 193
Chapter IV.
Of Hidd Shtrrub, or the Punishment for
Drinking Wine. 195
General rule, 195
Punishment is not inflicted in a case of
confession or accusation made after the
smell is gone off, 195
Unless this be owing to an unavoidable delay
in bringing the accused to the seat of
justice, 195
Is incurred by drinking Nabeez, 195
The smell alone does not suffice for conviction
without evidence, 196
Nor intoxication, unless it be known to
proceed from wine, 196
Not to be inflicted during intoxication, 196
For wine- drinking, to a free person, is eighty
stripes, 196
And to slave forty, 196
Confession may be retracted, 196
Tl e offence is proved by two witnesses, or by
one confession, 196
Degree of intoxication required to induce,
196
Confession of any offence during intoxication
is not regarded, 196
Nor apostasy, 197
Chapter V.
Of Hidd Kazaf, or lh« Punishment for
Slander, 197
Definition of Kazaf, 197
For slander, to be ordered by the magistrate,
197
The, to a freeman is eighty stripes, 197
To a slave forty, 197
Description of a person, the slandering of
whom induces, 197
Cases which constitute slander, 197
Case of a claim of, for slandering a defunct,
PUNISHMENT — continued.
Caoe of acknowledgement of a child, and
subsequent denial, 200
Objection, 200
Reply, 2(0
Accusation of a woman who has childrei/
destitute of any acknowledged father it
not slander, 201
Accusation against a person who has unlawful
commerce is not slander, 201
Under certain restrictions, 201
Is not due for slandering a deceased Mokatib,
202
Or a convert, before his conversion, 202
Is incurred by an infidel who slanders a Mus-
sulman, 202
A Mussulman suffering for slander it incapa-
citated from being a witness, 202
And an infidel also with respect to Zimmees,
202
Case of an infidel embracing the faith during
infliction of, 202
A single, answers to all the previous repeti-
tion of whoredom or wine drinking, 202
Or slander, 203
Chapter VI.
Of Tazeer, or Chastisement : —
Definition of the term, 203
Chastisement it ordained by the law, 203
Is of four orders or decrees, 203
Chastisement may be inflicted by the imposi-
tion of a fine, 203
May b« inflicted by any person, 203
It is to be inflicted wherever it it authorized.
I 204
Chastisement is due for slandering a slave or
an infidel, 204
It is not incurred by calling a Mussulman an
ass or a hog, 204
The degree of it is from three ttripes to
thirty-nine, 204
Imprisonment may be added to tcourging,204
The blows or stipet may be inflicted from the
most lenient to the severett degree, 205
Ifaperton die in consequence of chastise*
ment there it no fine, 205
PURCHASE. — See SALE.
Agency for, 379
Made by an apostate, 392
Bail in cases of.— See BAIL.
PURGATION.— See EVIDENCE, 336
PURGATORS, — See EVIDENCE, 371
PURIFICATION—
Of women, 601
i
A tlave cannot demand, upon his master, nor
a son upon his father, 198
The decease of the slandered party prevents,
198
Confession of tlander cannot be retracted,
199
A term of abute not constitute slander,
199
Equivocal accusation of whoredom incurs, for
slander, 199
And to also mutual recrimination, 200
Recrimination between a hutband and wife
induces, fcr slander upon the wife, 200,
Q.
QUICKSILVER. — See ZAKAT, 16
R.
RABBI MAL, 454
RAHN.— See PAWNS, 629
RAKHT.— See ZAKAT, 10 note
RATE—
Meaning of the term at used in MAtulman
law, 289
RATLS—
Sale by the computation of, 17, 25, 290
762
INDEX
RAVEN —
Cannot be lawfully eaten, 591
RAWAYAT SAHEEB, xxix
• MASH'TOOR, xxx
RECORDS —
In the office of the magistrate, 336
REFUSAL —
To swear by defendant, 402
REJECTION —
Of evidence.— See EVIDENCE, 359
RELATION —
Acknowledgment of dying person with respect
to a, 438
Gift to a.— See GIFT.
Will in favour of.— -See WILLS.
REGRATING, — See ABOMINATIONS, 606
RKLIGION —
Blended with judicial regulations, xii
Difference of, makes no difference as to obli-
gation of maintenance of wife, parents or
children, 1-+7
But does with reference to any other relations,
147
RELIGIOUS DUTIES —
No wages demandable for the performance of,
499
RENT. — See HIRE. —
When payable, 491
REPROBATE (Fasik) —
Inhibitions upon — See INHIBITION.
Testimony of. — See EVIDENCE.
Cannot be executor. — See WILLS.
RE-SALE. — See SALE, 289
RESCISSION —
Of bequest, 674
RESERVATION —
In charitable appropriations. — See APPRO-
PRIATIONS.
In acknowledgments, — See ACKNOWLF.DG-
MENTS.
RESERVOIR -
Appropriation of a, 237
RESIDENCE —
In a place, vows concerning, 155
RESPONDENT.-— See DEFENDANT.
RESPONSIBILITY — i
In partner- hip. — See PARTNERSHIP. j
RESTORATION— j
Of a loan,— See LOAN. j
RESUMPTION—
Of gifts.— See GIFTS, 485
RETALIATION.— See BAIL.— CLAIMS, 404
Witnesses retracting in case of, are liable to
a fine, 375
Arbitration not admitted in cases of, 343
RETIREMENT.— See MARRIAGE.
RETRACTATION —
Of evidence— See EVIDENCE, 372
Of beque/*— See WILLS, 674
Of gifts,— See GIFTS, 485
RETURN —
To a divorced wife, rules respecting. — See
DIVORCE.
REVERSAL —
Of divorce claims with respect to. — See
DIVORCE.
RfcATr240
RiBBA,—See USURY.— SALE, 291—293
RICH—
Definition of term, 148
RIGHTS —
Cannot he transferred by sale, 271
RIJUAT —
Or returning to a divorced wife. — See DI-
VORCE. 103
RIKAB —
Definition of, 20
RIKAZ, 14
RIKBA, 489
RIVERS —
Deserted beds of, must not be cultivated,
612
Of digging and of clearing, 615
Of three descriptions, 615
Water of, 16, 17
RIVULET —
Must not be dammed up for convenience of
one partner without the consent of others,
617
Nor can he dig a trench, or erect a mill upon
it, 6J7
Nor construct a water-engine, 617
RIZA — See FOSTERAGE, 67
ROADS —
Private may be sold, 271
ROOKS—
May be lawfully eaten, 591
ROOMS —
Partition of. — See PARTITION,
RUINOUS BUILDINGS. — See FINES.
S
SAA
A dry measure, 121
SABEANS —
Marriage with, 30
SACRIFICE OR USHEEA, 592
Must be performed by the Yd Kirban, 592
It is incumbent on a man for himself and for
his infant children, 592
The victim for one person is a goat ; and for
any number from one to seven, a cow or
camel, 592
An animal held in joint property may be
jointly offered in, 592
Others may be admitted to share in an
animal purchased for, 592
It is not incumbent on the poor or travellers,
592
The time of performing it, 592
If th*, be delayed beyond the proper time,
the victim must be bestowed in charity,
593
The, of a blemished animal must not be ad-
mitted* 5^3
But a trifling blemish does not render it
exceptionable, ;93
An animal wanting a horn, or mad, or cas-
tracted, may be sacrificed, 593
Any accident 'befalling the victim at the
time of slaying it, doe* not invalidate the,
593
Goats, camels, cows, alone are lawful in, 594
Age at which an animal is fitMfor, 594
If one of seven joint sacrifices die, the con-
sent of his heirs is requisite to the, 594
INDEX
763
SACRIFICS — continued.
Rule with reference to the disposal of the
flesh, &c., of the victim, 594
It must be slain by the sacrificer, or in his
presence, 59
A Kitabee may be employed to slay it, 594
But not a Magian, 594
Two persons slaying each other's victim by
mistake, must make a mutual compensa-
tion, 59V
Of an usurped animal, 489
SADKA —See GIFTS, 504
SADKA-FITTER.— See ZAKAT, 22, et seq.
SAFEEYA —
A prodigal or spendthirft, inhibitions im-
posed upon — See INHIBITION, 526
SALE. — See ABOMINATIONS, 603,.— DUNG, 603.-
AGKNCY FOR, 387. — PAWNS, 647.-SiRF SALE.
Retraction of evidence to a, 374
Definition of terms used in, 241
Chapter I.
Of Sale :—
Is contracted by declaration and acceptance,
241
Expressed either in the preterite or the pre-
sent, 241
Or by any expression calculated to convey
the same meaning, 241
Objection, 241
Reply, 241
The acceptance may be deferred until the
breaking up of the meeting, whether the
declaration be made personally, 241
Or by letter or message, 242
An offer made by the purchaser cannot be
restricted by the seller to any particular
part of the goods, 242
Unless he oppose a particular rate of price
to particular parts or portions, 242
If the acceptance be not exprested in due
tin.e the declaration is null, 242
Declaration and acceptance, absolutsly ex-
pressed, render the, binding, 242
Where the article and the price are both pro-
duce d, the, is complete without any ppecifi-
cation of quantity or amount, 242
But a mention of money without a specifica-
tion of the sum (unless it be produced upon
the spot) is not valid, 242
A, may be entered into either for ready
money or with specification of a promised
time of payment, 242
The price must be stipulated at some known
and determinate rate, 242
Grain may be sold for other grain of a dif-
ferent species, 243
Goods may be sold by a weight or measure-
ment which is not of any particular stan-
dard, 243
Except in a case of Sillim, 243
And a, expressing the whole quantity in this
way is altogether void, unless the amount
of the whole be particularly specified, 243
If the quantity agreed for, fall short, the
purchaser may either take it or undo the
contract, 243*
But if it exceed, the, is valid to the amount
of the quantity bargained for, 243
SALE ^-continued.
If the quantity be of a nature capable of
specification and fall short, the purchaser
may either take it or undo the bargain,
244
But if it exceed, the, is binding to the amount
agreed for, 244
If the quantity be so expressed as to relate
both to description and to substance, the
purchaser may either stand to or undo the
bargain, whether it exceed or fall short of
the amount specified, 244
The, of a specific number of yards of a tene-
ment is null, but not the, of a share, 244
The purchase of a package of cloth is null, if
it contain more or less than the quantity
of pieces agreed for, 244
Unless the seller previously specify the price
of each particular price, 245
A, is null in toto, if the description of the
goods be at all fallacious, 145
Case of the purchase of a price of cloth at
so much per yard, 245
In the, of a house, the foundation and super-
structure are both included, 245
In the, of, land, the trees upon it are
included, 245
But not the corn, 245
Nor in the, of tree is the fruit then upon
it included, 246
But the purchaser must immediately clear
these away, 245
In the, of ground, the seed sown in it is
not included, 346
The imme-product is not included in the, of
land or trees, although the rights and
appendages be expressed in the contract,
246
Nor unless all its dependencies be generally
expressed, 246
Nor can any product be included after being
gathered or out down, 246
Fruit may be sold upon the tree in every
state of growth, 246
But if the contract involve any condition not
properly appertaining to, it is null, 246
The additional growth of fruit purchased on
the tree, is suffered to continue upon it, by
consent of the seller, is the property of
the purchaser, 246
And so also if the purchaser take least of
the tree, 247
But this rule does not hold with respect to
grain purchased upon the ground, 247
Any new fruit which may grow in the in-
term is the property of the seller and
purchaser, 247
Rule in the purchase of vegetables sold on a
tree, 247 %
Grain may be sold in the ear, or pulse in the
husk, 247
The, of a house includes the fixtures and
their appendages, 248
The seller must defray the expense of
weighers, tellers, measurers, arid money-
e?sayers, 248
But the charge of weighing the price mus&be
defrayed by the purchaser, 248
764
INDEX
SALE. — conti nued
In barter or exchange, the mutual delivery
must be made by both parties at the same
time, 248
Chapter II.
Of Optional Conditions : —
Definition of term, 248
A condition of option may be lawfully stipu-
lated by either party, 248
Provided it exceed not the term of three
days, 248
If it exceed three days, and the stipulating
party declare his acceptance before the
expiration of the third day, the, is lawful,
249
The payment of the price may be substitued
as the condition, 249
The seller, by stipulating a condition of
option, does not relinquish his property in
the article sold, 249
But the property in it develops upon the
purchaser where the stipulation is made on
his part and he is consequently responsible
for the loss of the goods, 249
If the purchaser have the option, and the
goods be injured or destroyed in the in-
terim, he is retponsible for the price, 250
But if it rest with the seller, the purchaser
is responsible for the value only, 2M)
Right of o^iioi, in the purchase of a wife, is
not affected by cohabitation with her in the
interim of option, 250
Case of optional purchaser of a slave related
to the purchaser, ^50
And of a slave optionally puichased under a
vow of m<jnstruou» female slave, ^50
Or of a menstruous female slave, 250
Or of a pregnant wife, 251
Optional purchase made by a privileged slave,
251
Case of optional purchase of wine by a Zim-
mee, who in the interim embraces the
faith, 251
The possessor of option may annul the, with
the knowledge of the other party, or con-
rirm it without his knowledge. 251
And even if he annul it without the other's
knowledge, and the other be informed in-
formed the expiration of the term, it is valid,
252
A right of option in, cannot descend to an
heir. 252
A right of option may be referred to third
person, 252
Case of selling two slaves, with a condition
of option with respect to one of them, 252
Objection, 252
Reply, 253
Option o/d«|€rmimition, 253
It extendsM:o a choice out of three, but not
out of more, 253
Objection, 253
Repl*>, 253
An option of determination may involve a
condition of option, 253
But the term for making the determination
rqprt not, at all events, exceed three days,
253 *
SALE — continued.
Of the articles referred to the purchaser's
choice, one if the subject of the, and the
others are as deposits, 253
And both may be returned in case of a con-
dition of option, 253
The heir of the person endowed with an
option of determination may return one of
the two articles referred to the purchaser's
option in case of his death, 254
Option is declared and the, made binding by
any act of the purchaser in relation to the
article sold, 254
Any option of determination vested jointly
in two persons, is determined by the sub-
sequent consent of either to the purchase,
254
Objection, 254
Reply, 254
If any article purchased under one descrip-
tion prove to be of another description, the
purchaser may either confirm or annul the
contract, 254
Objection, 254
Reply, 254
Chapter III.
Of Option of Inspection, 255
A purchaser may reject an article upon in-
spection after purchase, 255
Although, before seeing it, he should have
signified his satisfaction, 255
Objection, ^55
Reply, 255
A seller has no option of inspection after,
253
The option of inspection continues in force to
any distance of time after the contract,
unless destroyed by circumstance, 255
Such as would have annulled a condition of
option, 255
Option of inspection is destroyed by the
sight of a part of the articles, where that
suffices as a sample of the whole, 255
Option of inspection in the purchase of a
house, 256
An agent for seisin may inspect in the same
manner as a purchaser, 256
The inspection of a blind person may be made
by touch, smell or taste, 257
Or (in a purchase of land) by description, 256
A sight of one of two articles, such as do
not admit of samples, still leave a power
of rejecting both, 257
The option is destroyed by the decease of
the person with whom it rested, 257
Case of inspection previous to purchase, 257
A persons, after disposing of a part of his
purchase, has no option with respect to
the remainder, 258
Chapter, IV.
Of Option from Defect, 258
A purchaser discovering a defect in the article
purchased, is at liberty to return it to the
seller, 258
Unless he was aware of the defect before
hand, 258 ^
Whatever tends to depreciate an article it a
defect, 258
INDEX
765
SALE — con t inued.
Defects incident to children affect the, of a
slave during infancy, but not after ma-
turity, 258
Lunacy operates as a perpetual defect, pro-
vided it occur after the, 259
Defects which operate in the, of female
slaves, but not of males, 259
Infidelity is a defect in both male and female
slaves, 259
Constitutional infirmities are defects in a
female slave, 259
A purchaser is entitled to compensation fcr a
defect in an article where it has sustained
a further blemish in his hands ; but he
cannot, in this case, return it to the seller,
259
A purchaser is entitled to compensation for a
defect discovered after the article has been
cut up, 260
Unless, after cutting, he put it out of his
power to restore it to the seller, 260
Or, if the return be rendered impracticable
by any change wrought upon the subject
prior to the, he is entitled to compensation
for defect, notwithstanding the, of it, 260
Appropriation of a purchase to the use of an
infant (implied in any act concerning it
which has a reference to the infant) by
precluding a return to the seller, leaves the
purchaser no right to compensation for a
defect, 260
The purchaser of a slave is entitled to com-
pensation for defect, after the death or
emancipation of the slave, 260
But not after the emancipation, where it has
been granted in return for property, 2bl
Nor after his death, where he has been slain
by the purchaser, 261
A purchaser of food is not entitled to com-
pensation for defect after having eaten it,
261
And so also, after having eaten only a part of
the food, 261
Case of defect in very perishable commodities
261
Case of a purchaser selling what he has pur-
chased, which is afterwards, returned to
him in consequence of a defect, 262
Objection, 262
Reply, 262
Conduct to be observed by the magistrate, in
case of a purchaser, after having taken pos-
session, alleging a defect in the article, 262
Case of a purchaser alleging the existence of
a defective property before he had made
the purchase ; and the forms of deposition
to be required of the seller in this in-
stance, 263
Case of a person purchasing two slaves, one
of whom proves defective, 263
In the purchase of articles of weight, or
measurement of capacity, the part which
proves defective may be returned to the
seller, 262
If a part of such articles prove the property
of another, still the purchaser is not at
liberty to return the remainder, 264
S A I,E— continued.
A purchaser, by applying a remedy to the
defective article, or making use of it,
deprives himself of the power of returning
it to the seller, 264 ,
If a purchased slave suffer amputation for a
theft committed with the seller, the pur-
chaser may return him, and receive tack
the price, 265
And so also if he suffer death for a crime
committed with the seller, 265
Case of a slave suffering amputation for two
thefts one committed with the seller, and
the other with the purchaser, 265
Case of a slave, after being thrice sold, suf-
fering amputation for a theft committed
with the first seller, 265
Where the purchaser grants the seller an
exemption from defects, he cannot after*
wards return the article, whatever the
defects in it may be, 266
Chapter V.
Of invalid, Null and Abominable Sa/ts,
266
Distinctions between a null and invalid, 266
The property purchased under a null, is
merely a trust in the purchaser's hands,
267
But that purchased under an invalid, be*
comes his property , 267
A, of prohibited things, if for money, is
null, 267
But if in the way of barter is invalid, 267
The, of a Modabbir, Am-Waltd, or a Mokatib
is null, 267
And the purchaser not responsible if they
die in his hands, 267
Offish in water null, 268
Or of a bird in the air, 208
Or of a foetus in the womb, or its offspring,
268
Or milk in the udder, 268
Or of hair or wool upon an animal, 268
Invalid of any article which cannot be sepa-
rated from its situation without injury,
268
Or which the quality or existence cannot
be ascertained, 268
Or the quantity of which can only be judged
of by conjecture 268
Or where the bargain is determined by the
purchaser touching the goods, &c., 269
Is invalid of grass upon a common, 269
Or of bees, unless in a hive, or with the
comb, 269
Or of silk- worms, 269
Of tame pigeons is valid, 270
Of an absconded slave is invalid unless he
be in the hands of the purchaser, 270
Although the seller should afterwards re-
cover and deliver him to the purchaser,
270
Of a woman's milk is invalid, 270
Or the bristles of a hog, 270
Objection, 270
Reply, 270
Or human hair, 270
Or undressed hides, 270
7*6
INDEX
SALE — continued. «
But animal substances of all descriptions,
excepting those of men and hogs, may be
either sold or converted to use, 2/0
H. right cannot be sold unless it involve
property, 271
Objection, 272
Reply, 272
Anything may be sold which admits of a pre-
cise ascertainment, but not otherwise, 271
A deception with respect to the sex invali-
dates the, in slaves but not in brutes, 271
A re-sale by the seller, for a sum short of the
original price, before payment of that
price, is invalid, 272
But the contract is not invalid with respect
to any other subject which may be joined
to the original in the re- sale, 272
Objection, 272
Reply, 272
The stipulation of a specific tare invalidates
a, 272
Case of a dispute concerning the tare of a
vessel which contained the commodity, 272
A Mussulman may commission a Christian to
sell or purchase unlawful articles on his
account ; and such a purchase, made by
the agent is valid, 272
Is rendered invalid by the insertion of any
condition advantageous to either party, or
repugnant to the requisites of the contract,
or which may occasion contention by in-
v< Iving an advantage to the subject of
the, 273
But it recovers its validity by the purchaser
performing the condition with the article
purchased, 27 J
Is invalid by a reservation of any advantage
to the seller from the article sold, 274
Or by the insertion of an invalid condi-
tion, 27 «
Or of one winch implicates the subject of
another contract, 274
Or by a stipulation of the payment of the
price at a period not precisely known to
both parties, 274
Or the date of the occurrence of which is
uncertain, 274
But it is valid where the time of payment is j
fixed by another agreement, 274
Invalid in consequence of stipulation an un-
certain term of payment, recovers its vali-
dity by removing the uncertainty, 274
Of a saleable with an unsaleable subject is
invalid, 75
But if the unsaleable subject be property,
the, holds good with respect to the sale-
able subject, 275
O/ Latos of fnup \\d , 275
In invalid, tne purchaser is responsible, not
for the price, but for the value of the
article, in case of its perishing in his
hands,* where he has taken possession of it
by consent of the seller, 275
The value must be paid in money, or in a
similar, according to the nature of the
artiqfe, 276
Either pftrty may annul the contract before
seisin, 276
SALE— continued.
A purchaser under an invalid, may sell the
article, in which case his right of annulling
the, expires, 2 76
The purchaser of a lawful article in return
for one that is unlawful, may after pos-
session, dispose of it as he sees fit, re-
maining responsible only for the value, 276
The seller cannot resume the article until
he return the purchase- money, and if the
seller die, the purchaser is entitled to set
up the article to, to indemnify himself for
the price hi has paid, 277
Case of immoveable property, in which a
change is brought by a purchaser under an
invalid contract, 277
The profit acquired by the purchaser upon a
definite article, purchased under an invalid
contract, must be bestowed in charity, 278
So also, profit acquiied upon any article in
xhich no right of property exists, 278
Of Sales and Purchases which are Abominable,
2??
It is ab minable to enhance the price of
merchandize by a fictitious tender of a high
price, 278
Or to anticipate or forestall the market, 278
Or to enhance the price of grain, in to^ns,
by a citizen selling for the farmer, 279
Or to buy sell on a Friday, 279
Merchandise may be set up for, to the highest
bidder, 279
It is abominable to separate two infant slaves
(or an infant and an adult, related within
the prohibited degrees, by a, of one of
them, 279
Unless in pursuance of an indispensable duty,
or in cases of unavoidable necessity, 279
But such, is nevertheless valid, 279
Adult slaves may be separated without
offence, 280
Chapter VI.
Of Akala, or Dissolution of, 280
Definition of Akala, 2-0
A, may be dissolved in consideration of an
equivalent to the price, 280
But not for anything greater or less, 280
Dissolution in consideration of an equivalent
of a different kind, is a breaking off, i8i
Of a female slave cannot be annulled after
she has borne a child, 281
May be dissolved previous to delivery and
seisin of the article, 28 1
Barter may be dissolved, after a destruction
of one of the subjects, 2 »l
Chapter VII.
OfMoorabihat, and Tawleeat, that is, Sales of
Profit and of Friendship, 281
Definition of Moorabihat and Tawleeat, 281
They require that the price consist of simi-
lars : or, if otherwise, that the person who
enters into the agreement with the pur-
chaser should have obtained possession of
the price in the interim ; but the profit
agreed for must be in money or specific
articles of weight, or measurement of
capacity, and must be stipulated upon the
whole price, generally, and not proportion-
ably upon its parts, 2S2
INDEX
767
SALE — continued.
All intervening expenses which enhance the
value of the article may be added to the
prime cost, 282
In case of an over- statement of the price,
the purchaser may undo the bargain, 283
Or (in Tawleeat) deduct the excess, 283
A profit by a Moorabihat, cannot be twice
obtained upon the same article, 283
Case of Moorabihat transacted by a privi-
leged slave with his owner, 283
Case of Moorabihat transacted between the
manager of a stock and the purchaser,
234
An article may be disposed of by Moorabihat,
where a defect has intervened not proceed-
ing from the seller, or where the seller has
used the article in the interim, without
injury to it, 2«4
But if the defect be occasioned by, or com-
pensated to, the seller, a proportionable
deduction must be made from the price,
285
If the article be damaged by an accident not
proceeding from the seller, still it is a pro-
per subject of Moorabiha^, ^.85
A mis statement of a prorr.pt payment instead
of a suspended payment, leaves it in the
power of the purchaser to undo the bargain
in a sale either of profit, 285
Or of friendship. 285
In a sale of friendship the rate must be
specified ; and the purchaser has a right
of option until after the specification, 286
Moveable property cannot be re-sold before
seisin, 286
but land may be re-sold previous to seisin by
the first purchaser, 286
In the re-sale of articles of weight, and
measurement of capacity, it is requisite
that the article be weighed or measured
again by the second purchaser, 286
It suffices that the articles be weighed or
measured by the seller, in the purchaser's
presence, 287
In the re-sales of articles of tale or longi-
tudinal measurement, the telling or measur-
ing by the second purchaser is not re-
quisite, 287
A seller may dispose of the price of his
goods without having taken possession of
them, 287
The parties may make any subsequent addi-
tion or abatement with respect either to
the goods or the price ; and such addition
or abatement are incorporated in the con-
tract, 287
Objection, 287
Reply, t287
The price cannot be increased after the de-
struction of the goods in the purchaser's
hand, 288
Objection, 238
Reply, 288
Prompt payment may be commuted for dis-
tant payment, 288
Chapter VIII.
OfRibba, or Usury, 289
Definition, 289
SALE — continued.
Usury (occasioned by rate united with
species) is unlawful, 289
It consists in the, of an article (of weight
or measurement of capacity) in exchange
for an unequal quantity of the same article,
289
But does not exist where the quantities are
not ascertained by some known standard of
measurement, 289
It is occasioned either by an inequality in
point of quantity, or by a suspension of
repayment ; unless the consideration and
the return be heterogeneous, 289
Objection, 290
Reply, 290
All articles ordained by the Prophet to be
articles of measurement, continue so, not-
withstanding any alterations of custom ;
and the same of all ordained by him to be
articles of weight, 290
All articles referred to any known standard
of weight are considered as articles of
weight, 290
Note concerning Sirf Sale, 291
Similars may be sold for each other, without
inducing usury, 291
Usury cannot take place with respect to
FaJoos, as they ar* articles of, 291
Objection, 291
Reply, 291
Flour or meal cannot be sold for wheat, 291
Flour may be sold for flour, 292
But not for meal, 292
The, of flesh for a living animal is not usu-
rious, 292
Nor the, of fresh dates for dried ones, 292
The, of the manufactured produce of an
article in exchange for a similar article, is
usurprious, unless it exceed that article in
quantity, 293
One species of flesh may be sold for another
species, 293
The, of the milk of one animal for an un-
equal quantity of milk of another species
of animal does not induce usury, 293
Bread may be sold for flour of an unequal
rate, 293
Usury cannot take place between a master
and his slave, 293
Unless the slave be an insolvent Mazoon,.293
Nor between a Mussulman and an infidel in
a foreign country, 293
It may take place between a protected alien
and a Mussulman, 293
Chapter IX.
O/ Rights and Appendages, 293
Definition of rights and appendages, as con-
nected with, 29 «
Difference of rights in a purchase with respect
to a Manzil, a Dar, and a Baity 294
A porch over a road, connected with a house,
is not included in the, of it, unless it be
expressly specified, 294 *
The avenue is not included in the purchase of
an apartment of a house,— nor wells dr
drains in the purchase of lands, unless the
appendages be expressed in the contract,
294
763
INDEX
SALE — continued.
Chapter X.
Of Claim of Right, preferred by others to the
Subject of a Sale.
A female slave, claimed after having produced
a child whilst in the purchaser's possession,
is, together with her child, the property of
the claimant, provided the claim be estab-
lished by evidence ; but if the claim be
supported by the purchaser's acknowledg-
ment only, the child is not his property,
294
A person selling another as slave, who
tfterwards proves to be free, must restore
the purchase money : or, if the alleged
slave have excited the purchaser to the
bargain, he must restore it in defect of the
seller, 295
Case of claim to an immoverble property
after a composition with respect to it, 296
Of Fawolee Beea» or the Sale of Property of
another without his Consent, 296
A, contracted without authority may be dis-
solved by the proprietor of the subject,
296
If assented to, the price is the property of
the proprietor, and deposited with a
Fazoolee seller, 296
Who is at liberty to dissolve the contract
without his concurrence, 296
If the proprietor die, and the subject be not
specified, the, is invalid, 297
The emancipation, by the orginal proprietor,
of a slave usurped and sold by the usurper
is valid, 297
The fine incurred by maiming a slave sold
under an usurpation goes to the purchaser,
if the former proprietor assent to such,
297
The re-sale of a slave purchased from an
usurper is rendered invalid by the pro-
prietor signifying his assent to the first,
but if the slave perish in the interim, the
assent is of no account, 298
Objection, 298
Reply, 298
An article purchased through the medium of
an unauthorized person cannot be returned
to the proprietor, although the purchaser,
prove the want of authority, or the pro-
prietor's assent to the, but if the seller avow
he is not being authorized, the, is null, 298
In the, of immoveable property by an un-
authorized person, the seller is not respon-
sible, 299
Chapter XI.
O/SiWmSaUs, 299
Definition, 299
A Sillim, i* lawful, 2^0
In all articles of weight (except dirms and
dtenars), measurement of capacity, 299
Longitudinal measurement and tale, 299
It isniot lawful with respect to animals, 300
Or the parts of animals, or skin, firewood, >
or hay, unless the quality be ascertained,
300
Her unless the subject be in continued exis-
"tencfc until the time of delivery, 300
SALE — continued.
*t is lawful with respect to articles which,
although perishable in their nature, are
kept in a state of preservation, or in
situations where the article may always be
had, 300
It is not lawful with respect to flesh-meat,
301
The period of delivery must be specified,
301
Private standards of measurement cannot be
used in it, 301
It is not lawful under a restriction of the
subject to the produce of a particular
place, 301
And requires that the genus be specified, and
that the species, quality, quantity, period
of delivery, rate, and place of delivery,
be all determined, 302
Objection, 302
R*ply, 302
The place of delivery, however need not be
determined with respect to articles which
are not of expensive carriage, 303
The price must be received at the meeting,
303
Whence, if a debt owing from the seller to the
purchaser be considered as part of it, the,
is invalid in that proportion, 304
But it cannot be disposed of by the seller
until he take possession of it, 304
Nor can the purchaser perform any act with
respect to the goods until he receive them,
^04
In a dissolution of Sillim the stock cannot
be applied to the purchase of anything
from the seller until it be first received
back, 304
Objection, 304
Reply, 304
An article subsequently purchased and made
over in fulfilment of a Sillim, is not held
to be delivered, 30+
Unless the purchaser receive it first on behalf
of the seller, and then make seisin of
it on his own account, by two distinct
measurement. 305
Objection, 305
Reply, 305
A second measurement is not required in a
similar receipt of article by a lender, 305
If the seller measure the article on behalf of
the purchaser in his absence, it is not a
delivery, although it be measured, into the
purchaser's sack, 305
And so also if it be measured by the seller
into his own sack, at the purchaser's in-
stance, although the purchaser be present,
306
Case of delivery of a determinate article in
the same parcel with an un determinate
article, 306
Objection, 306
Reply, 306
If the contract be dissolved, and the article
advanced perish before restitution, the
seller is responsible, 306
The dissolution of a, is rendered invalid by
the article perishing before restitution, 370
INDEX
7t>9
SALE— continued.
In dispute with respect to the value of the
subject, the assertion of the seller (upon
oath) must be credited, 307
If the seller deny the appointment of a
period of delivery, the assertion of the
purchaser, fixing that period, must be cre-
dited, 307
Objection, 307
Reply, 307
In Sillim, of piece goods all the qualities
must be particularly specified, 309
Sillim is not valid in shells or jewels, but it
is valid in small pearls sold by weight, 308
In bricks, 308
And (in short) in all articles which admit a
general description of quality and ascer-
tainment of quantity, 308
Or which are particularly defined, 308
Articles bespoke from the manufacturer, in a
contract of Sillim, are considered as enti-
ties, 308
And may be rejected if disapproved upon
delivery, 308
An engagement with a manufacturer to fur-
nish goods which it is not customary to
bespeak is valid, 309
Objection, 309
Reply, 309
Miscellaneous Cases, 309
It is lawful to sell dogs or hawks, o09
It is not lawful to sellwine or pork, 309
Rules with respect to Zimmees in, 309
A person inciting another to sell his pro-
perty to a third person, by offering an
addition over and above the price, is re-
sponsible for such addition, but net unless
this addition be expressed as forming a
part of the price, 309
A female slave maybe contracted in mar-
riage by the purchaser without his taking
possession of her, 310
Case of the purchaser disappearing without
taking possession of his purchase, or paying
the price, 310
Or of one of two purchasers disappearing
under the same circumstances, 311
Base of gold and silver being indefinitely
mentioned in the offer of a price, 311
The receipt of base money instead of good
money, if it be lost or expended, is a com-
plete discharge, 31 1
Articles of a neutral nature do not become
property but by actual seisin, 311
SARAKA, OR LARCENY—
Definition of, 205
SATOOKA DIRMS, 422
SAWAYMEEN—
Definition of, 4
SECONDARY TRUSTEES, 476
SECURITY —
To be taken from the claimant of trove pro-
perty, 212
From the heys present, where a co-heir is
missing, 212
SEED.— See CULTIVATION, COMPACTS OP, 181
SEISIN.— See SALE,
Perfect and imperfect described, 256
SELLING,— See Vows,
SENSUALIST —
May make a will, 696
SEPARATION —
Care of infants in case of. — See DIVORCE,
138
Occasioned by impotance, 126
SEX—
Deception as to, invalidates sale of slaves,
but not of brutes, 2 1
SEXES—
Commerce of.— See ABOMINATIONS, 698
SHAFFA—
Definition, 547
The right of, appertains to a partner in the
property, a participator in the immunities
of the property, and a neighbour, 548
No person can claim it during the existence
of one who has a superior right, 548
Unless he first relinquish it, when the title
devolves to the next in succession, 548
One who is a joint proprietor of only a part
of the article has a title superior to a
neighbour, 549
The relative situation of the property deter-
mines the right, when claimed on the plea
of neighbourhood, 549
The right of all the Shafees (claiming upon
equal ground) is equal, without any regard
to the extent of their properties, 54°-
If some be absent, the, is, adjudged equally
amongst those who are present : — but the
absentees appearing receive their shares,
649
The right does not operate until after the sale
of the property, 650
Nor until regular demand, 550
Nor does the property go to the Shafee but
by the surrender of the purchaser, or a
decree of the magistrate, 550
Chapter II.
Of Claims of t and Litigation concerning it.
350
The claims are of three kinds, 450
I. The immediate claim, which must be
made on the instant, or the Shafee for-
feits his title, 550
II. The claim by affirmation and taking to
witness which must be made as soon as
conveniently may be after the other,
551
III. The claim by litigation, 551
A delay in the litigation does not invalidate
the claim, 651
Particularly, if occasioned by the absence of
the magistrate, 652
Rules to be observed by a magistrate on an
appeal, 552
The mode prescribed for his examining tht
parties, 552 +
The cause may be litigated and determined
independent of the price of the property in'
dispute, 552
But the defendant may retain the one
the other be produced, 552
770
INDEX
SHAFFA— -continued. ,
The privilege is not forfeited by a delay in the
payment, 552
The feller may be sued whilst the house is in
his possession, ;>53
\n agent for the purchaser may be sued (be-
fore delivery to his constituent), 553
And so also an agent for the seller, or an
executor, 553
The Shafee, after gaining his suit, has an
option of inspection, and also an option
from defect, 553
Of Disputes relative to the Price, 553
In disputes concerning the price, the assertion
of the purchaser, upon oath must be cre-
dited, 553
And so likewise evidence produced by him,
553
And also his assertion, if the seller allege a
larger amount, 554
Case in which the seller's assertion may be
credited concerning the price, 554
Of the Articles in lieu of which the Shafee may
take the Shaffa Property, 555
The Shafee is entitled to the benefit of any
abatement made to the purchaser, but not
to that of a total remission, 555
He is not liable for any augmentation agreed
upon after the sale, 555
If the price consist of effects, the Shafee may
take it on paying the value of those effects ;
but if it consist of similars, he is to pay
an equal quantity of the same, 555
And so likewise, if the price consist of land,
555
In case of a term of credit, the Shafee may
either wait the expiration of the term, or
take the property immediately, upon pay-
ing the price, 555
Of property subject to, purchased by a Zim-
mee for a price consisting of unlawful articles
556
The shaffe may either take buildings or
plantations of the purchaser (paying the
value), or may cease them to be removed,
556
The Shafee is not entitled to any remune-
ration for buildings erected or trees planted
on land which proves the property of an-
other :— but he may remove them, 557
If the property have sustained any accidental
or natural injury after sale, still the Shafee
cannot take it for less than the full value,
557
If the injury be committed by the purchaser,
the Shafee may take the ground alone at
its estimated value, 557
Of a Shafee taking ground with fruit trees,
558
Chapter ll£
3/ Articles concerning with Shaffa Operates,
558
The C<#ht of, holds with respect to all im-
moveable property, 558
Unless it be sold separate from the ground on
which it stands, 558
A Mussulman and a Zimmee are on an
with respect to it. 668,
SHAFFA— continued
It holds with respect to property transferred
in any shape for a consideration, 558
It does not hold in a property assigned in
dower, or as a compensation for Khoola,
or as a hire, or in compensation for
murder, or as the price of manumission,
559
It holds with respect to a house sold in order
to pay the dower, 559
It does not hold with respect to a house the
possession of which is compromised by a
sum of money, 559
It holds with respect to a house made over in
composition, 559
But not with respect to property transferred
by grant, 5c9
It does not apply to property sold under a
condition of option, 559
But it does with respect to property so pur-
chased, 5^0
And on the Shafee taking possession, the
purchaser's right of option, ceases, 5oO
In case of sale upon option, the possessor of
the option is Shafee of the adjacent pro-
perty, 560
It does not apply to property transferred
under as invalid sale, 560
The seller of property under an invalid
sale is still Shafee of the adjacent pro-
perty, 560
Until he deliver the property sold to the pur-
chaser, who then has the right, 569
Which, however, falls upon the seller resum-
ing his property, 560
A right of Shaffa is not created by partners
making a partition of their joint property,
560
The right once relinquished cannot afterwards
be resumed, 561
Chapter IV.
Oj Circumstances which Invalidate the Right of
Shaffa , 561
A right of, is invalidated by the Shafee omit-
ting to procure evidence in due time, 561
Or by his offering to compound it, 561
Or by the death of the Shafee before the
Kazee's decree, 561
It is not invalidated by the death of the
purchaser, and therefore cannot be disposed
of on his behalf, 562
It is invalidated by the Shafee selling the
property whence he derived his right, 562
Or by his acting as agent for the seller, 562
He may resume his right where he had re-
linquished it upon misinformation concern-
in the price, 562
Or by trie purchase, 563
Or where he has been misinformed concern-
ing the article sold, 563
Device by which the right of, may be evaded,
565
Case of a house purchased in shares, by the
same person at different times, 563
Where the price of the property sold is com-
promised for a specific article, the Shafee,
if he insist on his right, bust pay the
price, 563
INDEX
771
SHAFF A— continued.
Miscellaneous Cases, 563
The Shafce may take a share from one of
several purchasers ; but if there be several
sellers, and only one purchaser, he must
take or relinquish the whole, 564
Incase of the sale and partition of half a
house, the Shafee may take the purchaser's
lot, 564
If one partner sell his share, the Shafee may
annul any srbsequent partition, and take
if for the price, 564
Acts of a father or guardian with respect to
the Shaffa of an infant ward, 564
The concession of a house by a composition
does not induce a right, 442
But is induced by the act of giving a house
in composition, 442
SHAFEE—
The person possessing the right of prescrip-
tion.—Sec SHAFFA.
SHAHDIT. — See EVIDENCE, 353
SHIPPING —
Not subject of Shaffa. — See SHAFFA,
SHEEAS. — See SHIYAS
SHIRB — •
Claim of, 616
SHIRKAT. — See PARTNERSHIP, 217
SHIRRA, or PURCHASE.— See SALE.
SHIYAS—
The followers of Alee. — See PRELIMINARY
DISCOURSE. —
SHOP-
Hireofa, 494,506
SICK. -See ACKNOWLEDGMENTS. -BAIL, — DIVORCE
Of mortal illness, rules for determining the
state of being, 685
SICKNESS —
Right of wife to maintenance in case of, 141,
SICK PERSONS —
Of acknowledgments made by, 436
Divorce by. — See DIVORCE.
Bail contracted for. — Sec BAIL.
Discharge of debt by, 437
SIDJIL— I
Judicial records preserved in the orifice of |
magistrate, 336
SIFITJA.— See DEBTS, TRANSFER OF, 333
Description of, 466
Expenses attending, 468
SIHL IBM SAAD, xxii
SIHRA, 210
SIKKIR —
A species of prohibited drink, 620
SILK. — See ABOMINATIONS, 597
Piece of goods sold by weight, 308
Laws concerning the wearing of, 597
SILKWORMS. —See SALE, 269
SILLIM SALES.— See SALE, 243, 308
Where lawful. -See SALE, 299
SILLIM. — See PAWNS, 637
Agency in, is valid, 381
Smallest term for delivery of the commodity
in a, 301
Dissolutior of, 304
Incidental rules respecting, 411
SILVER.— See SALS, 312— ZAKAT.
Ornaments, 597
SIMILARS —
Definition of this term, 316
SIMMIN THIMMIN, 241
SINGERS —
Testimony of public, not admissible, 361
Rules respecting, 638
SINGING —
There is no hire for, 499
SINGULAR AGENCY —
Definition of, 224
SIRF.— See PAWNS, 637.— SALE 296
Agency in, is invalid, 381
Pawn in, 637
SIRF SALE—
Definition of, 312
The articles opposed must be exactly equal in
point of weight, but may differ in quality,
312
The exchange must take place upon the spot,
j i£
Gold may be sold for silver at an unequal rate
provided the exchange take place upon the
spot, 312
No act can be performed with relation to the
return until it be received, 312
Objection, 313
Reply, 313
Gold may be sold for silver by conjecture,
but not gold for gold, nor silver for silver,
313
In the, of an article having gold or silver
upon it, the price paid down is opposed to
the gold or silver, 313
In the purchase of plate, if the parties
separate before payment of the full price,
the sale is valid only in the proportion
paid, 313
Or if it discovered to be in part the property
of another, the purchaser may relinquish
the bargain, 314
But this does not hold with respect to an
ingot, 314
Where the article on each side consist of two
species of money, the sale at an unequal
rate is lawful, 314
And so also where the article on one «ide
consists of a certain number of coins of
one species, and on the other of an equal
number of two species, 315
A deficiency of value on one side in point of
weight, may be made up by the addition
of any other article of proportionable value,
315
A debt may be commuted in the course of a,
315
One pure and two base dirms may be sold for
two base and one pure, 315
Description of, and rules respecting, base
coinage, 315 \
A, for base dirms is null, if Jhey lose their
currency before the period of payment, 316
Rules with respect to copper coinage, 316
SISTERS— *
Must furnish maintenance to indigent
brother, 14*
SIYBEBA —
Proposal of marriage to a.— See M>°»i*«
SLANDER,— See PUNISHMENT, 197
772
INDEX
SLANDERER—
Evidence of, 360
May witness a marriage, 26
SLAUGHTERED CARCASES—
Being promiscuously mixed with carrion, 708
SAYING —
Of animals for food. — See ZABBAH.
SOLOMY.— -See PUNISHMENTS.
SONNA, xvf 73
Oral law, xv
Stands next to the Koran, xv
Collection by Alee, xvi
Adherence to the, in divorce, 73
SOOLH— See COMPOSITION.
SPEAKING-
VOWS respecting, 163
STALLIONS—
Hire of. 499
STIGMATIAZING —
Of a false witness, 372
STOCK—
Copartnership in Pro/its of, 434
STONES—
Precious, not subject to any impost, 16
STRANGER OR ALIEN —
Death cf, without heirs, 518
STRAYED CATTLE —
Rules respecting, 210
Subsistence of, 210
STRIKING. — See Vows, 172
SUBSISTENCE —
To a trove animal, 210
SUBSTITUTION -
Case of payment of Zakat by, 6
Of the value lawful, 6
SULPHUR—
Wells of,— See ZAKAT, 19
SUMPTUARY LAWS —
With respect to dress and ornaments.— See
ABOMINATIONS.
SUPREME MAGISTRATE—
Inquisitorial oath imposed by, 175
SURETY.— See BAa, 318
SURGEON-
IS not responsible in cases of accident to his
patient, 50 1
SURRENDER —
(Of an article purchased), security for, 255
SWEARING. -See CLAIMS, 405.— PUNISHMENT. -
OATHS. —COMPOSITION.
SYNAGOGUES—
Founded by.— See WILLS, 695
T.
TAAM.— See/ooo, 280
TAATA, 24K
TABAYEEN, 335
TADBEEB.— See INHIBITION, 528
By a frodigal, 528
TABEEKH—
A species of prohibited liquor, 619
TAHALIF—
Or C weiring of both plaintiff and defendant,
607
TAHKEEM, 343
TAKAZA, 39J
TAKHARIJ—
Or composition for inheritance, laws of, 453
TALAK.— See DIVORCE, 72
TALAK AHSAN, 72
TALAK BIDDAT, 73
TALAK HOOSN, 73
TALAK KANAYAT, 84
TALB MAWASIBAT — See SHAFFA, 550
TALB ISH'HAD WA-TAKREER, 551
TALB KHASOOMAT, 551
TALHA, xvii
TAMEEN BIN TIRFA, xxix
TARE—
Of a vessel.— See SALE, 272
TASMEEA— See ZABBAH, 588
TAWLEEAT—
Or sales of friendship, 281
TAXES—
Outraged by pawner, 634
TAILOR —
Hire of a, 497
TAZWEEJ, 26
TELLERS —
Seller must defray expenses of, — See SALI,
248
TEMPORAL MATTERS —
Testimony concerning, 596
TENANT—
Evidence of, must not be credited with re-
spect to his principle, 360
TENEMENTS.— See HOUSE.
TESERRIF, 359
TESTAMENTS.— See WILLS.
TESTIMONIALS (WRITTEN) —
Various descriptions of, 708
TEYUMIM—
A substitute for ablution.— See DIVORCE. —
MARRIAGE.
TIME-
VOWS pronounced with reference to, 165
TITHE LANDS—
Zakat upon all the product of, 17
Levying of, 12
May be imposed on wine, 13
In what cases to be levied upon the pro-
ducts of lands, 16
TITHE WATER.— See ZAKAT, 19
TOGLIB WOMEN.— See ZAKAT, 18, 19
Tribe of, who, 8
Land belonging to, subject to double tithes, 17
Other imposts upon the lands of, 19
TOLERATION (RELIGIOUS) —
Enjoined, 3.9
TRAFFIC—
Partnership in, 223
TRANSFER OF DEBTS, 232
TREASURES.— See ZAKAT, 15
Buried in the ground, 14
Pays a tax of one- fifth upon discovery, 16
Not transferred by the sale of land in which
it lies, 16
TREES.— See GARDENING, COMPACTS OF, 585.—
FRUIT—
Sale of, 245
Pass with sale of land.- See SA«LE, 245
Fruit not included in tale of. —See SALE, 245
TRIBUTE WATER. — Sec ZAKAT, 19
INDEX
773
TROVE PROPERTY — See ZAKAT, 15
TROVES —
Definition of Lookta, 208
A trove property is as a trust in the hands
of a finder, 208
Who is not responsible for any damage it
may sustain in his hands, 208
Unless he avow that he took the property
with a view to convert it to his own use,
208
The finder is responsible for the, if he has
not witnesses to testify that he took it for
the owner, 208
The, is sufficiently witnessed by the finder's
notification of it to the bystanders, 209
A, under ten dirms must be advertised for
some days, and one above ten dirms, for
a year, 209
A, of an insignificant nature may be con*
verted by the finder to his own use, 209
If the owner do not appear in due time, the
finder may either bestow the property in
alms, or keep it for the owner, 209
Where the, has been bestowed in alms, i he
owner may either ratify the alms gift, 209
Or take indemnific ition ftom th find r, 2 ,9
Objection, 210
Reply, 2 »»
Or from th', N*UA u up ,.j,ai ua^ . ••»,-•
so be .tow^i
Or, if still exists g may ^ ami institution or
it, 210
Objection, 2,0
Reply, 2:0
Stray animals ought to be secured and taken
care of foi the owner, 210
But he is not responsible to the finder for the
substance unless it be furnished by the
order of the magistrate, 210
Who, if they be fit for hire; must direct
them to be hired out for that purpose, 210
Or, if unfit, to be sold, and the price retained
by the owner, 210
Unless he think fit to order them a sub-
sistence, which is in that case a debt upon
the owner, 211
But subsistence must not be ordered for more
than a few days, 211
Nor unless the finder produce evidence in
proof of the, 211
Objection, 211
Reply, 211
If the finder have no evidence, the order for
subsistence must be conditioned upon the
veracity of his declaration, 211
The finder has no claim upon, the owner for
the subsistence, unless the magistrate ex-
pressly declare, in his order, that the
owner is responsible for the same, 211
But he may retain the, from the owner until
he be paid for the subsistence, 211
If, however, the, perish in the finder's
possession, after detention, he has no
claim, 211 *
Of unlawful articles are to be advertised and
disposed of in the same manner as those
of lawful articles, 211
TROVES — continued.
The claimant of a, must prove his right by
evidence, but it may be delivered to him
upon his describing the tokens ofit;*in
this case, however, the magistrate cannot
compel a surrender, 212
The finder surrendering the, upon description
of the tokens, without evidence, must
take security from the claimant, 212
The finder is not to be compelled to surrender
the, although he acknowledge the right of
the claimant, 212
A, cannot be bestowed in alms upon a rich
person, 213
Nor can the finder, if rich, lawfully convert it
to his own use, 213
The finder, if poor, may convert the, to his
own use, or, if rich, may bestow it upon
his poor children, 213
TRUST. — See AGENCY, 396
TRUSTS—
Pledges cannot be taken for, 636
Proof of a, does not defeat a plea founded
on usurpation, 414
Plea of, opposed to an alleged usurpation, 421
A pledge cannot be taken to security for, 636
TRUST —See DEPOSIT, 471
f JSTS — S^e PAWNS, 644
v respcc 'n . «'•
vJf a p . . '
K aponsi
YTHE d.
Zikat to ij
<y f and rules concerning,
1 It HE,
ivcd ->n wine, ^
U.
UMPIRE.— See ARBITRATOR.
UNAUTHORIZED PERSON (Fazoiee)—
Contract of marriage executed by, 42
UNCIRCUMCISBD PERSON—
Evidence of, admissible, 363
UNCLE—
Testimony of a nephew concerning his, 361
UNJUST PERSON.— See REPROBATE.
UNLAWFUL DRINKS -—See PROHIBITEP LIQUORS
UNLAWFUL MEATS, 591
USUFRUCT.— See PAWNS.— WILLS, 6°-3
Does not constitute property, 48
Extent of, in hire. — See HIRE.
Partition of —See PARTITION.
USUFRUCTUARY WILLS —
Meaning bequests of usufruct. — See WILLS.
USURER—
Testimony of, 362
Of Mazoons, or Licens€d Slaves, 343
OfGhazb, 533
Definition of the term, 553
Acts by which usurpation is established, 533
The usurper of an article of the class of
similars, is responsible for a similar, if it ,
be destroyed in his possession, 533
If the article be of the class of non-simUars,
he is responsible for the value, 534 , \
The actual article usurped must be restored
to the proprietor, if it be extant, *34
774
INDEX
USURPATION — continued.
In the place where it was usurped, 534
And, failing of this, the usurper must be
imprisoned until he make satisfaction, 634
So as to occasion responsibility, cannot take
place but in movable property, 534
The usurper of a house, is responsible, for the
furniture, 535
But if he sell the house, and the proprietor
have no witness, he is not responsible,
635
An usurper of a land is responsible for
damage occasioned by the cultivation of it,
535
The usurper of a movable is responsible for
the value, in case of its destruction, 535
If he himself rendered it defective, he is
responsible for such defect, 535
But not for any depreciation it may have
sustained in his hands, 535
The usurper of a slave hiring him out to
servjce, is responsible for any damage he
may sustain, and must bestow the wages
in charity, 5a6
But if the slave be destroyed, the wages
may be given in part of the compensation,
536
All monied profits acquired by means of
usurped money must be bestowed in
chanty, 536
But not profits of any different description,
537
Of Usurped Articles altered by Act of the
Usurper, 537
An alteration wrought upon the articles
usurped vests the property of it in the
usurper, who remains responsible to the
original owner for the value of it, and
cannot lawfully derive any advantage from
it until such compensation be paid, 537
Any alteration wrought upon gold or silver
does not transfer the property of it, 538
The construction of a building upon an
usurped beam transfers the property of
the beam to the usurper, 538
In the case of slaying an usurped animal,
the proprietor has an option at taking the
carcass, receiving a compensation for the
damage, or making it over to the usurper
for the value, 539 *
A small damage committed upon usurped
cloth does not transfer the property of it
but a considerable damage gives the pro-
prietor an option of taking it back (with a
compensation for the damage), or making
it over to the usurper for the value, 539
Case of planting or building upon usurped
land, 53°r
Case ofi'dying usurped cloth, or grinding
usurped wheat into flour, 540
An usurper damaging the article usurped
bewme proprietor of it upon the owner
demanding the value, 541
The amount of which is ascertained by the
declaration of the usurper upon oath, or
Hy evidence adduced by the proprietor, 541
And after accepting this the proprietor can-
not remand the article, if the compensation
be given in conformity with hi§ claim, 641
USURPATION —continued.
The sale of an usurped slave by the usurper
is invalid, upon the owner receiving the
value as a compensation, but the emanci-
pation of him would be invalid, 541
The produce of an, usurped property is a
trust in the usurper's hands, 542
The usurper of a female slave is not liable
for any damage she may receive by bearing
a child, provided the value of the child be
adequate to such damage, 542
The usurper of a famale slave impregnating
her is responsible for her value in case she
die of childbirth after restoration, 543
There is no hire for the use of an usurped
article, but the usurper is responsible for
any damage it may sustain, 544
A change wought upon an usurped article by
an inexpensive process does not alter the
property, but if the process be expensive,
the property devolves to the usurper, who
must make a compensation, 545
Converting usurped wine into vinegar by
means of mixing in it some valuable ingre-
dient, 546
A person is responsible for destroying the
musical instruments, &c , or the prepared
drink of a Mussulman, 547
And must compensate for them by paying
their intrinsic value, 5-*7
The usurper of a Modabbira is responsible
for her value if she die in his possession,
but not the usurper of a Mckatiba, 547
Of the usurpation of things which are of no
value, 544
A Mussulman is responsible for destroying
the wine or pork of a Zimmee, 544
And must compensate for it by a payment of
the value, 544
USURPED PROPERTY —
Composition for, 445
Alterations wrought upon, 527
Damaging of, 541
Produce of, 542
No hire demandable for the use of, 544
USURPER —
Purchasing the article usurped whilst in his
possession.— See USURPATION.
Placing in deposit the article usurped, 4/6
USURERS—
Evidence of, 362
USURY, 607.— See SALE, 289
UTENSILS —
Composed of or oranamented with gold or
silver, 595
UGHBEA. — See SACRIFICE,
-V.
ViGBTABLES.—See SALE, 247
VESSELS—
Those which are abominable or otherwise, 595
VICEROY —
Testimony of a, 363
VINEGAR, 622
VIRGIN—
Adult, cannot be contracted in marriage
against her will, 595
INDEX
775
VIRGINITY—
Signs of; destroyed by any accident, 354
Evidence to, 354
Vows, 150
Or Eiman, 150
Definition, 150
Chapter I.
Oaths of sinful nature are of three kinds,
150
Preiury, 150
Objection, 150
Reply, 150
Contracted, where not fulfilled, 151
And inconsiderate oaths, 151
Expiation is incumbent, whether the vow be
wilful, a compulsory, or although the oath
be taken under a deception of the memory,
The violation of a vow, whether by compul-
sion or through forgetfulness, requires
expiation, 151
Objection, 151
Reply, 151
Chapter II.
Of what Constitutes an Oath, or vow, ana
what does not Constitute it, 151
An oath may be expressed by using the same
of God, or any of His customary attributes,
151
Excepting His knowledge, wrath, or mercy,
151
It is not constituted by using any other name
151
Particles of swearing, 152
Swearing by the truth of God is not an oath,
152 „ ,,T ,, ,,T
The expressions, "I swear, 'I vow, 1
testify," constitute an oath, without the
name of God, 152
Swearing by the existence of God makes an
oath, 152 , .
A vow may be contracted by the imprecation
of a conditional penalty, 152
Chapter III.
Of Kafara, or Expiation:—
A vow may be expiated by the emancipation
of a slave, the distribution of alms, 153
Of fasting, 153
Previous expiation does not sumce, 153
A einful vow must be broken and expiated,
154 . . u
Or infidels, being nugatory, cannot be held as
violated, 154
Of abstinence, 154
Is binding, where any condition annexed, 155
Pronounced, with reservation of the will of
God, are null, 155
Chapter IV.
Of VOIDS with respect to entrance into a
residence In a particular place, 155
A, against entering a house is not violated by
entering a mosque, church, &c., 155
A, against entering a serai is not violated by
entering a rum, 156
A, against entering any particular house is
not broken by entering it when in rums,
156
Vows — continued.
Against entering in a house not violated by
going under the roof or entering the
portion, 156 *
Case of, respecting abstinence from a thing
in which the vower is at present engaged,
156
Against residing in a city not broken by the
vower' s family, continuing to reside there,
157
Chapter V,
Of Vows, respecting various actions, such as
coming, going, riding, and so forth. 158
An evasion of, is a violation of them, 157
An undetermined, of performance is not
violated until the death of the vower, 158
Made with a view of prevention, 158
Case of a, expressed generally, but restricted
in its sense to some particular occasion,
158
Chapter VI.
Of Vows in respect to Eating or Drinking,
158
Witk respect to eating dates, 158
Of abstinence from anything is not broken
by eating that thing when it has acquired
a new description, 159
Or denomination, 159
Chapter VII
Of Vows with respect to Speaking and Con-
versing, 163
A, against speaking to such a person is
violated by speaking to him within hearing
distance, although he be asleep, 168
Case in which the violation of the vow
depends upon the meaning of the terms
used in it, 163
Case of a, against convers ing with a person
for a specified time, 163
Repetition of prayer, &c., at the stated season
does not violate a vow of silence, 163
Made respecting the day, extends to the night
also, 164
Case of a, of inhibition restricted to a par-
ticular occurrence, 164
A, against conversing with a person
described is, in relation to another, not
violated by conversing with that person
after the description with respect to the
other is done away, 164
A, against conversing with such a youth
is violated by conversing with him after
manhood, i65
Respecting converse with reference to him,
J65
Chapter VIII.
Of Vows in Manumission and Diiface . —
Divorce vowed on condition of the birth of a
child, takes place, although the child be
stillborn, 166
Freedom vowed in favour of a child that
may be born of a female slave, takes place
on her first iiveborn child, 166
Case of a, of freedom to the first mir-
chased slave, 167 • •
Case of a, of freedom to a last purchased
slave, 167
776
INDEX
Vows — continued.
Case of a, of freedom to whichever of his
slaves shall congratulate the vower on the
r birth of a child, 167
Emancipation of a slave in consequence of a,
does not suffice for expiation, 167
But the emancipation of a father in female
quence of purchase suffice, 16/
The emancipation by purchase of a female
slave by a person to whom she stand in f
the relation of an am-Walid does not j
suffice, 168 !
Case of a, of freedom to a female slave on j
condition of concubinage, 168 i
A general vow of freedom to slaves includes
every description of them. 169
Case of a, of divorce indefinitely expressed,
169
Chapter IX.
Of Vows of Buying, Selling, Marriage, and so
forth, 169
A, against the performance of certain acts is
not violated by procuring an agent to per-
form those acts, 160
Except in the case of marriage, manumission,
or divorce, 169
Or any acts, the right of which solely apper-
tain to the vower, 169
Nor by employing the other to do the thing
where the advantage results solely to the
subject of the, 170
A, of freedom conditioned upon the sale of a
slave, takes place on the instant of the
sale, and the sale is null, 170
Divorce suspended upon the not selling of a
slave, takes place on emancipation or Tad-
beer, 170 |
A, of general divorce in reply to a wife
charging her husband with bigamy, takes
place upon her in the same manner as
upon the rest, 170
Chapter X. I
Of Vows respecting Pilgrimage, Fasting, and ,
Prayer, 171 j
Case of a, of Masha, 171 j
Case of a, of manumission suspended upon '
the non-performance of pilgrimage, 171
Case of a, against fasting, 171 \
Case of a, against fasting for a day, 171
Case of a, against prayer, 171
Chapter XI.
Of Vows respecting Clothing and Ornaments, \
171
Of husband against wearing cloth of his ;
wife's manufacture, 17 1
Chapter XII.
Of Vows concerning Striking, Kiling and so
forth, 172
A, made ajjainst striking a person is not
violated €y striking that person when
dead, and the same of a vow against ;
clothing, 172 ,
StoeakHfg to, going to, 173
C)r washing the person, 173
\, against beating is violated by any act
which causes pain, unless that act be
coiftmtyted in sport, 173
)F slaying a person who is already dead
incurs the penalty, 173
Vows—continued.
Chapter XUI,
Difference tn a, between the Term Shortly and
in Length of Time, 173
A, to discharge a debt is fulfilled by dis-
charging it in light or base money, or in
money belonging to another, 173
Of by means of liquidation, 173
Objection, 174
Reply, 174
But not by the gift of the creditor, 174
A, not to accept reimbursment of a debt in
partial payments, is not violated until the
whole debt shall have been received, 174
Chapter XIV.
Of Miscellan ecus Cases, 174
A, against doing a thing unrestrictiyely pro-
nounced, operates as a perpetual inhibited,
174
A, of performance is fulfilled by a single
instance of performance, 174
An oath imposed by a supreme magistrate
continues in force only during the exist-
ence of that magistrate's authority, 175
A, of gift is fulfilled by the offer of a gift,
although it be not accepted, 175
;w
WAFFA SALE—
Description of 520
WAGES.— See HIRE.
At what time due, 491
To a public partitioner, 566
WAKEEL.—See AGENT,
WAKF or WUQF. — See APPROPRIATIONS.
WALEE (Guardian), 54
WALLS—
Ruinous. — See FINES.
WALNUTS —
Purchase and sal* of, 262
WASAYA.-— See WILLS.
WASEEAT. — See WILLS.
WATER.— See SHIRB, 616
All people have a right to drink from a well,
canal, or reservoir, 613
And also cattle, 613
No person can alter or obstruct course of,
running through his ground, 616
In case of disputes, 617
Right to, cannot be assigned as dower, 618
Or given in composition for a claim, 618
Tithe and tribute defined. — See ZAKAT.
An article of neutral property, 229
General rules respecting claims to a right of,
613
WATER-COURSE
Space approiated to, 612
Rules with respect to, 612
As to digging, &c., 616
WATBR-ENQINE
Cannot contract on a rivulet without con*
sent of partners, 617 f,
WAWAKIL, or SEIZING or FINES, 670
WEIGHERS—
Seller must defray expense of, 248
INDEX
777
WEIGHING AND MEASURING —
In purchase and sale, 287
WELLS.—- See WATERS.
Space appropriated to, wh<?re dug in waste
lands, 611
A person digging is responsible for accidents,
662
Digging in a highway, 373
Partition of a, 570
Partnership in, 229
Appropriations of, to pious uses, 240
WHEAT —
Flour and meal cannot be sold for. — See
SALE, 291
Purchase and sale of — See SALE
WHOREDOM. — See PUNISHMENTS, 176
By compulsion, 523
Means either fornication or adultery, 29
Rule for ascertaining the perpetration of, 176
What acts constitute, 176
Evidence required in. — See EVIDENCE, 353
Evidence of retractation therefrom, 178
Purgation of witnesses, 358
WIDDA.— See DEPOSITS, -171
WlDDEEYAT, 471
WIDOW —
No maintenance due to, 145
Claim of, upon her husband's estate, 147
WIDOWHOOD —
Rules to be observed by women during, 132
WIPE. — See DIVORCE.
Repudiated, acknowledgment in favour of,
483
Where entitled to maintenance from hus-
band, 140
Must have a separate apartment, 143
Maintenance where husband is absentee, 144
No decree for maintenance can be issued
against the property of an absentee hus-
band upon the bare testimony of his, 145
Difference of religion makes no difference as
to obligation to maintain a, 147
Unless she be an alien, 147
A poor man required to support, and in-
fant children, 148
WIKALIT. — See AQBNCY.
WILLA, 513
Definition of, 513
Of two descriptions, Ittakit and Mawalat,
513
The, of a slave appertains to his emancipator,
rendering him liable to fines incurred by
the slave, and endowing him with a right
of inheritance, 513
Objection, 513
Reply, 513
,A stipulation of waving the claim to inheri-
tance is invalid, 514
The, of a slave emancipated by Kitabat ap-
pertains to his master, 514
Objection, 514
Reply, 514
The same of the, of modabirs Am-Walids,
514 J
And slaves emancipated by affinity, 514
In the emancipation of a pregnant female
•lave the, of the foetus belongs to. her
emancipator! 514
WILLA — continued.
But if she be not delivered in six months
from the date of her manumission, it may
shift from him to the father's emanci-
pator, 514
Case of a Persian marrying a freed woman,
515
If the father and mother are both freed
persons, the, of their children belongs to
the father's tribe, 5' 6
Heirship is established by the, of manumis-
sion, 516
An emancipatress is entitled to the. of her
freed-men, &c., but not of their children,
516
The estate of a freed man descends to the
linea! heir of th« emancipator, and not to
his heirs general, 517
Of the Nawalat, or of Mutual Amity. 517
Nature and effect of the contract of Mawalat,
517
Either party may dissolve the contract in
presence of the other, 518
Or the inferior party may break it off in the
superior's absence, by engaging in a Mawa-
lat with some other person, 518
But he cannot do so after the other has paid
a fine incurred by him, 518
A freed -man cannot engage in a contract of
Mawalat,
Oath cannot be demanded from defendant in
respect of, 402
WILLA MAWALAT, 517
WILL—
In divorce as contrasted with liberty and
option, 91
WILL MASHEKAT — See DIVORCE, 91
WILLS—
Definition of the terms used in, 670
Chapter I,
Of Wills that are Legal and Wills that are
Laudable, and of the Retractation of, 670
Are lawful and valid, 670
To the extant of a third of the testator's
property, 671
But not to any further extant, 671
Unless by consent of the heirs, 671
A bequest to an heir is not valid unless con-
firmed by the other heirs, 671
A bequest to a person from whom the testator
had received a mortal wound is not valid,
672
And if a legatee slay his testator, the bequest
in his favour is void, 672
A bequest to a part of the heirs is not valid,
672
Bequests are valid between Mussulmans and
Zimmees, 672
The acceptance or rejection of them is not
determined until after the defth of the
testator, 672
It is laudable to avoid making them where
the heirs are poor, 673 ^
The legatee becomes proprietor of the legacy
by his acceptance of it, 673
Which may be either expressed or implied,
673 . . \
Bequest by an insolvent person i s void, 673
So by an infant, 673
IN.QEX
Or a Mokatib, 674
A bequest or, in favour of a foetus in the
womb is invalid, 674
A female slave may be bequeathed, with the
exception of her progeny, 674
A bequest is rescinded by the express declara
tion of the testator, or by any act on his
part implying his retractation, 674
Or Jvhich extinguishes his property in the
legacy, 675
The testator's denying his bequest is not a
retractation of it, 675
Nor his declaring it unlawful or usurious,
675
Or desiring the execution of it to be de-
ferred, 675
A bequest to one person is annulled by a
subsequent bequest of the same article to
another, 675
Unless that other be not then alive, 675
Chapter II.
Concerning the Bequest of a Third of the
Estates, 676
Of a person bequeathing two-thirds of his
property to two persons respectively, 676
Of Mohabat, 676
Bequests of specific sums of money, 676
A person bequeathing the whole of his estate
to one, and then a third of it to another,
676
A bequests of a son's portion of inheritance is
void, but not the bequest of an equivalent
to it, ( 77
A bequest of a "portion" of the estate is
executed to the extent of the smallest por-
tion inherited from it, 677
A bequest of "part of the estate/' unde-
fined, may be construed to apply to any
part, 678 '
A person bequeathing first a sixth, and then
a third, to the same person, 578
Or, first a third, and then a sixth to the
same person, 678
A person bequeathing a third of any par-
ticular property, if two-thirds of it be lost,
and the remainder come within a third of
the testator's estate, the legatee is entitled
to the whole of such remainder, 678
A bequest of "the third of'an article, part
of which is afterwards destroyed, holds
with respect to a third of the remainder
679
A legacy of money must be paid in full with
the property in hand, although all the rest
of the estate should be expended in debts,
679
A legacy left to two persons, one of them
being at thft time dead, goes entire to the
living legatee, 679
A legacy being bequeathed to two persons in-
definitely, if one of them die, a moiety of
it onry goes to the other, 679
c A bequest made by a poor man is of force if
he afterwards become rich, 679
A bequest of any article, not existing in the
ppisesfion or disposal of the testator at his
decease, is null, 679
Unless it was referred to his property, in
which case it must be discharged by a pay-
ment of the value, 679
Distribution of bequest made indefinitely
to three different descriptions of persons,
680
Or to an individual, and a particular class of
people, 680
Or bo a particular class of people alone, 680
Of a third person being admitted, by the
testator, to a participation with two other
legatees, 680
An acknowledment of debt, upon death-bed,
is efficient to the extent of a third of the
estate, 680
A joint bequest to an heir and a stranger is
executed in favour of the latter only, to
the extent of one- half, 681
And so likewise a joint bequest to the
murderer of the testator and a stranger,
681
Any accident occasioning uncertainty with
respect to the legatees annuls the, 681
Bequest of an apartment in a partnership
house, 681
The validity of a bequest of money belonging
to another rests upon the proprietor's con-
sent, 683
An heir, after partition of the estate, acknow-
ledging a bequest in favour of another,
must pay the acknowledged legatee his
proportion of such bequest, 683
Bequest of a female slave who (previous ro
the partition of the estate) produces a
child, 683
Of the period of Making, 684
Gratuitous acts, of immediate operation, if
executed upon death-bed, take effect to
the extent of one-third of the property
only, 684
An acknowledgment on a death-bed is valid
in favour of the person who afterwards
becomes an heir * but not a bequest or gift,
684
Neither is an acknowledgment so made valid,
if the principle of inheritance had existed
in the person previous to the deed, 684
Such acknowledgment, gift, or bequest, in
favour of a son, being a slave, who after-
wards becomes free, previous to the father's
decease, is nevertheless void, 685
Rule for ascertaining a d-ath-bed illness, 685
Chapter III.
Of Emancipation upon a Death-bed, and e/
Wills relative to Emancipation, 685
Emancipation, gift and acts of Mohabat, on
a death-l>ed, take effect to the extent of a
third of the property, 685
Of a Mohabat and an emancipation by the
same person, 685
Mohabat and emancipation precede in their
execution the actual bequest, 686
The appropriation of a sum bequett to
the emancipation of a slave $ annulled by
the subsequent loss or failure of any' part
of it, but not the appropriation of a sum
to the performance or a pilgrimage* 686
INDEX
781
CONDITIONAL Vows.— Sec
YAMEEN, OR
DIVORCE, 94.
— Retraction of evidence to a, 94
YAMEEN GAMOOS.— See Vows, 150
YAMEEN MOONAKID, 150
YAMBEN LIGHOO, 150
YAWM AL FITTER, 23
YAWM AL NIHR, 24
YA AL FITTER, 22
YA KIRBAN, 592
YAZEED. — See SACRIFICE.
ZABBAH —
Of Zabbah, or the slaying of animals for food,
587
All animals killed for food, except fish and
locusts, must be slain by, 587
Is of two kinds, by choice, and of necessity,
587
It must be performed by a Mussu'man or a
Kitabee, 587
Provided he be person acquainted with the
form of invocation, whether man or woman,
infant or idiot, 587
It cannot be performed by a Magian, 587
An apostate. 587
Or an idolater, 587
Game slain in any place by a Mobtim is un-
lawful, or slain by any other person in holy
ground, 587
Rules with respect to the Tasmeea, or invoca-
tion, 588
In the first species of, it must be pronounced
whilst the animal's throat is cutting ; and
in the second species, upon shooting the
arrow, or letting loose the dog or hawk at
the same, 588
Nothing must be said except the invocation,
589.
Proper method for slaying animals, 589
It may be performed with nails, herns, or
teeth (detached from their native nlace),
589
Or with any sharp instrument, 590
Precautions to be observed by the slayer,
590
The animal is lawful although it be wounded
previous to cutting its throat, 590
All tame animals must be slain by cutting the
throat ; and wild animals by chasing or
shooting therr, 590
Camels must be slain by Nahr rather than
by, 591
The foetus of a slain animal is not lawful ,
591
Of the Tmngs which may be lawfully eaten,
and of I nose which may not, 521
All beasts and birds of prey are unlawful,
591
ZABBAH— continued.
Rookw are neuter, but carrion crows and
ravens are unlawful, — Magpies, the croco-
dile, other, all insects and the ass and
mule are unlawful, 91
Hares are neuter, 391
No aquatic animal is lawful except fish, 592
Fish which perish of themselve are not
lawful, 592
ZABBAH —See FOOD,— HUNTING.
Slaying animaU for, 687
ZAKAT —
Definition of, 1
Chapter I
Introductory, 1
Obligation of, and conditions upon which
is incumbent, 1
Not due from infants nor from maniacs, 1
With certain exceptions, 2
Nor from Mokatibs, 2
Nor from insolvent debtors. 2
Nor upon the necessaries of life, 2
Nor upon uncertain property, 2
It is due upon unquestionable properly, 3
Intention of traffic in property subjects is
to, 3
Intention of, in the payment necessary to its
validi y, 3
Exception under certain circumstances, 3
Chapter, II.
OfZakatfrom Sawyeem ; t,e.,/rom herds and
flocks. 4
Definition of Sawayeem, 4
Of Zakat of Camels, &c.. 4
One goat due upon five camels, 4
Female camels only lawful in the payment
of, 4
Camele of all descriptions inculded, 5
Of horned cattle, 5
One yearling due upon thirty kine, &c., 5
Buffaloes are included with other horned
cattle, 5
Of Goats :—
One due upon forty, 5
^Cids or lambs are not acceptable payment
unless above a year old, 5
But males and females are equally accept-
able, 6
Of Horses : \
One deenar per head due upon horses, or five
deenars per cent, or the total value, 6
Not due upon droves consisting entirely either
of males or famles, 6
No, due upon asses or mules, unless at articles
of commerce, 6
Of Kids, Calves and camels, Colts : —
Not due upon young of herds flocks until
a year old, 6
One camel's colt due on twenty-five, 6
Case of payment of, by substitution, 6
Substitution of value lawful ,16
Labouring cattle exempt from, 7
Must be paid in cattle of a medium value, 7
Law respecting property acquired in the
interim between the payments, 7
Rules respecting the Afoo, 7 •
Case of, being levied by the rebels or schis-
matics, 8
INDEX
WILLS — continued.
A slave, excceeding one-third of the pro-
perty, emancipated on death-bed, is ex-
empted from emancipatory labour by the
heir-assenting to his freedom, 687
A bequest of emancipation in favour of a
slave is annulled by his being made over
in compensation for an offence committed
by him, 687
Where the heir and the legatee agree con-
cerning a slave having been emancipated
by the testator, the allegation of the heir
is credited with respect to the date of the
deed, 687
Of an alleged emancipation and debt credited
by the heirs, 687
Of Bequests for Pious Purposes, 688
In the execution of bequest to certain pious
purposes, the ordained duties precede the
voluntary, 688
Unless all the purposes mentioned be the
equal importance, in which case the
arrangement of the testator must be
followed, 688
As well as where the purposes of the bequest
are of a purely voluntary nature, 688
Rules in bequests towards the performance of
a pilgrimage, 688
Chapter IV.
Of Wills in favour of Kinsmen and other
Connexions , 6S9
A bequest to a neighbour is in favour of the
owner of the next adjoining house, 689
And comprehnds all competent descriptions
of persons, 689
Rules in bequests to the "As'heer" of the
testator, 689
And to his Khatn, 689
And to his Akraba, 690
Or to the Ahl of a particular person, 691
Or of the house of a particular person, 691
Or to the orphans, blind, lame, or widows of
a particular race, 691
Or to the race of a particular person, 691
Or to the Awlad of a particular race, 691
A bequest to the heirs of a particular person
is executed agreeably to the laws of in-
heritance, 69J
Case of a bequest to the Mawlas of the testa*
tor, 692
Chapter V.
Of Usufructuary Wills, 692
An article bequeathed in usufruct, 692
Must be consigned to the legatee, 692
But if it constitute the sole estate, being a
slave, he is possessed by the heirs and
legatee alternately ; or, being a house, it
is held among them in their due propor-
tions, 692
Nor are the heirs in the later instance allowed
to sell their slaves, 693
The bequest becomes void on the death of
the leaatee, 693
A beqtftst of the produce of an article does
not erftitle the legatee to the personal use
of the article, 693
Nor does a bequest of the use entitle him to
let it to hire, 693
WILLS— continued.
A bequest of the use of i> slave does noi
entitle the legatee to carry him out of the
place, unless his family reside elsewhere^
694
A bequest of a year's product, if the article
exceed a third of the estate, does not
entitle the legatee to a consignment of it,
694
In a bequest of the use of article to one,
and the substance of it to another, the
legatee of usufruct is exclusively entitled
to the use during his term, 694
A bequest of an article to one, and its con-
tents to another, if connectedly expressed,
entitles the second legatee to nothing, 694
A bequest of the fruit of a garden implies
the present fruit only, unless it be ex-
pressed in perpetuity, 695
A bequest of the produce of an animal impli(
the existent produce only in every instance
695
Chapter VI.
Of Wills made by Zimmees, 625
A church or synagogue founded during health
descends to the founder's heirs. 695
In the bequest of a house to the purpose of
an infidel place of worship, it is appro-
priated accordingly, 695
Whether any particular legatees be mentioned
or otherwise, 695
Objection, 696
Reply, o96
The bequests of Zimmees are of four kinds,
696
The will of a sensualist or innovator is the
same as of an orthodox Mussulman, unless
he proceed to a vowed apostasy, 696
The will of a female apostate is valid, 696 I
A Moostamin may bequeath the whole of h&
property, 696
But if he bequeath a part only, the residue
is transmitted to his heirs, 696
An emancipation, or Tadbeer granted by him
on his death bed, takes effect in toto, 696
Any bequest in favour of a Moostamin it
valid, 697
The bequests of a Zimmee are subject to the
same restrictions with those of a Mussul-
man, 69/
He may make a bequest in favour of an
unbeliever of a different, 697
Not being a hostile infidel, 697
Chapter VII. ^
An executor having acceded his appointment
in presence of the testator, is not after-
wards at liberty to reject, it, 697
His silence leaves him an opfflfti of rejection,
697
But any act indicative of his acceptance
binds him to the execution of the office,
697 ' • *
Having rejected the appointment after the
testator's decease, h^rtttry still ascept of it,
unless the magistrate appoint an executor
in the interim, 697 « • ' -
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