and in point
of profeffion.
Cafe of a
woman contracting
her-
felf on an in
adequate
dower.
E q u a l i t y is to be regarded in trade or profeffion, according to
Aboo Yoofaf and Mohammed.— There are two opinions recorded of
Haneefa upon this point; and there is alio an opinion related of Aboo
l'oofaf, that the profeffion is not to be regarded, unlefs where it is of
fuch a degrading nature as to oppofe an unfurmountable objection;
fuch for instance as barbers, weavers, tanners, or other workers in
leather, and fcavengers, who are not the equals of merchants perfumers,
druggifts, or bankers.— The principle upon which regard is
to be had to trade or profeffion is, that men affume to themfelves a
certain confequence from the refpeftability of their callings , whereas
a degree of contempt is annexed to them on account of the meannefs
thereof.— But a reafon, on the other hand, why trade or profeffion
Ihould not be regarded is, that thefe are not abfolute upon a man,
fince he is at liberty to leave a mean profeffion for one of a more
honourable nature.
If a woman contradt herfelf in marriage, confenting to receive a
dower of much fmaller value than her proper dower*, the guardians
have a right to oppofe it, until her hufband ffiall agree either to give
her a complete proper dower, or to feparate from him.— This is according
to Haneefa.— The two difciples maintain that the guardians
are not poffeffed of any fuch authority; and their argument is, that
whatever the dower may be above ten Dirms is the right of the
woman, and no perfon is. to be oppofed in relinquilhing that which
is her own; as where a woman, for inftance, chufes to rehnqui|,a
part of the dower, after the amount of it has been fpecifically fhpulated._
T o this Haneefa replies, that the guardians affume a certain
decree of refpedt and confideration from the magnitude of the dower;
and its fmallnefs is an occafion of Ihame to them; wherefore regard
is had to that, as well as to equality: contrary to the cafe of »
woman relinquilhing her claim to any part of her dower after it has
* The nature of the proper dower is fully explained in the next chapter. been
been fpecifically ftipulated, becaufe nodifgrace falls upon the guardians
from fuch dereliftion.
I f a father fhould contract in marriage his infant daughter, agreeing
to a very inadequate dower; or, if he fhould contract his infant
fon, engaging for an extravagant dower, yet this is legal and valid
with refpedt to them.— This, however, is not lawful to any excepting
a father or grandfather, according to all the doctors.— T h e two
difciples have faid that diminution or excefs in the dower is illegal
only where it is very apparent; that is to fay, a contract o f marriage,
involving any very difproportionate excefs or deficiency of dower, is
not held by them to be legal; becaufe the authority of a father or
grandfather to contract infants in marriage is founded upon the fup-
pofition of their regard for the intereft of thofe infants, and therefore,
where this regard does not appear, the contradt is n ull; and in agreeing
for a deficient dower on behalf of a female infant, or for an ex-
ceffive one on behalf o f a male, no regard to their intereft whatever
is manifefted.— Similar to this is a cafe of purchafe or fale; that is to
fay, if a guardian were, on behalf o f an infant, to fell a thing for lefs
than its value, or to buy a thing for more than it is worth, at an
exceffive diiproportion, fuch fale or. purchafe would be invalid; and
fo alfo in marriage:—^and hence it is that no perfon is empowered,
with refpedt to deficient or exceffive dowers, excepting a father or
grandfather.— T o this Haneefa replies, that the law here refts folely
upon whatever affords an argument of tendernefs for the infant, and
that is found in nearnefs of affinity; and in marriage there are many
eonfiderations of more weight and moment than the dower, whereas,,
in tranfadtions which concern property, that only is a confideration;
and where that which is the end appears to be defeated, their authority
is done away.— But with refpedt to others than the father and
grandfather, no regard is. had to affinity as an argument of tendernefs
in the prefent cafe, fince that exifts in. them in a fmalkr degree.
Cafe of a father
contra£t-
ing his infant
child on a difproportionate
dower,
I f