fom*a h” ay If I man con trad his infant daughter to a Have, or his infant fon
t o t t o f d t0 3 femaIe flave’ k is lawful— The compiler of the HedSya obferves
that this is* according to Haneefa, who argues that the father’s ne°ledl
o f equality in this inftance mu ft be fuppofed to arife from fome other
confiderations of greater weight, wherefore the faid contrail of marriage
is lawful; but i f it fhould appear that the parent has adopted fuch
a match without any view to a particular advantage, the contrail is in
that cafe null: and the two Elders coincide with Haneefa in this
• opinion.— According to the two difciples the contrail is illegal, becaufe
it involves a twofold difadvantage with refpect to the infant;_
a.want?of equality in the firft inftance; and fecondly, a want of residence,
as a Have cannot be or remain any where but with the owner’s
content.
S E C T I O N .
O f a Power o f A g e n c y to eontraB M a r e i a g e .
Agents in. A gents in matrimony are perfbns employed and authorized by
^"powers'? t^le Parties' concerned' to enter into contrails of marriage on their
behalf; and the power fb delegated is termed Wikalit-ba-Ni-kkah.
I t is lawful for a nephew to contrail the daughter of his
ui^cle in marriage with himfelf.— Ziffer alleges that this is unlawful
I f a w o .™ give authority to a man to contrail her in marriage
with himfelf f nd he accordingly execute the contrail in the prefence
of two witnefles " is lawful. Ziffer and Shefe'i affirm that this is
illegal, hecaufe no pe^Ton is competent to transfer and make himfelf
Chap. H M A R R I A G E .
the proprietor of that which is transferred; as in a cafe of fa le, for
inftance, where"; if the proprietor conftitute a perfon his. agent of fale
with relpeft to any particular'property, and the agent fell the fame to
himfelf, both the agency and the fale are void, no man being competent
to ail as the transferrer of property, and to become himfelf the
mailer of that property.—-Shefe’i, however, alleges that a guardian
may lawfully contrail his ward to himfelf on the plea of tieceffity, fince,
if he were not allowed this privilege, Ihe might never be married ; but
a mere agent has no fuch plea, becaufe in this cafe her guardian will
contrail her*.— Our doilors, on the other hand, argue that an agent
I in matrimony is merely a negotiator, and the obligations of the contrail
I do not, in any refpeit, affeil the contrailor of a marriage; neither
I would any objeilions which may arife apply to the Ample negotiation,
I but to the rights and obligations which it involves: contrary to the
1 cafe offale, as cited by Ziffer and Shffe’i, becaufe there the agent ap-
I pears to be ailing not merely as a negotiator, but alfo. as a principal,
I in the contrail of fale, and is confequently affeiled by its obligations.
I It may be remarked in this place, that as the contrailor of a marriage
■ is? merely a negotiator, fo where a perfon becomes, empowered to con-
I trail on both fides, his Angle declaration “ I have contraited” com-
I prehends both the declaration and the acceptance, and confequently
I there is in this inftance no occafion for two feparate fentences +.
I I f a man fhould contrail in marriage the flave of another without Cafes o f a
I the owner’s confent, the validity of the deed is fufpended upon the “ " " j f
■ will of the Owner: if he approve, it is lawful; if he difapprove, it “"authorized
■ is n u llT v iS ^ v T .... r x P«fon.
In the fame manner, i f a man contrail a woman in. marriage
without her knowledge in the prefence of two witnefles, or if°a
„ „ „ T a * Proceeds uPon a f“ PP°fition that the guardian is not within the prohibited degrees,
and that no other proper perfon offers.
t See the beginning of this Book.
woman.