Cafe of a reciprocal
bargain
between
two contractors.
lays that a prefent is incumbent in behalf of every divorced woman,
excepting one whofe dower has been flipulated, and who is divorced
before confummation; becaufe the prefent is made incumbent in the
way o f a gratuity, or compenfatory gift, from the hulband, on account
of his having thrown,the woman into a forlorn ftate by his
feparation from h e r; 'but, in the excepted inftance, the half dower is
a fubftitute for the prefent, as divorce is here a diflolution of the con-
trad!:, and the prefent need not be bellowed repeatedly. The argument
of our doctors is, that the prefent is a fubftitute for tht proper
dower in the cafe of a rejigned woman, (that is, a woman who re-
ligns herfelf to her hulband without a dower,) on account that,<as the
proper dower drops, the prefent becomes incumbent; becaule, ins
contradl of marriage, a return is effential : the prefent, therefore,
is a fubftitute for the proper dower; and fuch being the cafe, it mull
not be required in addition either to the whole dower, which is the
original thing, -or to any part of i t : whence the prefent is not incumbent
where any part of the dower is due. As to what Shafe'i advances,
that “ the prefent is made incumbent in the way o f a gratuity,
“ or compenfatory g ift, from the hulband, on account of his having
“ thrown the woman into a forlorn ftate by his feparation from her,”
-—we reply that this adt of his does not amount to an offence, :as the
hulband is privileged by the law fo to do, wherefore no recompenfe.is
due from him on that account; and hence it is that the prefent is regarded
merely as refpeElful and laudable.
If a perfon contradl his daughter, or his filler, in marriage to
another, on the condition of the other bellowing a filler or daughter
in marriage upon him, fo as that each contract lhall Hand as a return for
the other, refpectively, both the contradls are lawful.— Shafe'i maintains
that both the contrails are null, as they make one half of the
woman’ s perfon, reciprocally, a dower, and the other half the fubjedl of
marriage; becaufe, where the perfon marries his daughter to the
other, and alfo conllitutes her the dower for the other’s daughter, it
follows
follows that the daughter’ s perfon* is divided between the other perfon
and his daughter,— one half to that, perfon; as hulband, in virtue of
the marriage, and the other half to his daughter as her dower; and
as the matrimonial polfelfion, or propriety, is incapable of being participated,
(fince it is ordained as a complete enjoyment, and not as a
participated one,) it follows that the bargain is nugatory.— T o this
our dodtors reply, that the contradlor has named, as a dower, a thing
incapable of being fo, (fince a woman’ s-perfon, in the fenfe it here
bears, is incapable of being the property of a womans)— but yet the
contradl holds good, and a Mihr M iß, or proper dower, remains due,
[to each of the women,] the fame as where wine or a hog are affigned
as a dower.— With refpedt to what Shafe'i urges, that “ the matrimo-
“ nial propriety is incapable of being participated,” — it is admitted ;
but this participation is not induced in the prefent cafe, as the perfon
of either of the daughters is not made the right of the other daughter
in virtue of the contradl.
If a free.man marry a woman, on the condition, in return, of ferving’
her for a Hated time, {ayear, for inftance,) or of teachino- her the
Koran, yet her proper dower is incumbent upon him notwithftandin°-,
acebrding to Haneefa and Aboo foofaf. Mohammed has faid that Ihe
is, in this cafe, to receive a fum amounting to the eftimated value of
his fervice for one year. But i f a Have, by his owner’s confent, marry
a woman on the fame terms,' it''is lawful, and the woman is entitled
to the flipulated fervice only.— Shafe'i is of opinion that the woman is
entitled merely to the fervice flipulated in. either of theft cafes/
becaufe whatever may be lawfully received as a fixed return, is capable
of conllitutinga dower, fince a mutual exchange maybe thereby
effected, and confequently the cafe is th e. fame'as i f the man had
married the woman on condition of a Hated fervice to be performed
by another perfon, or on a ftipulation o f himfelf watching her flocks
f°r a Hated period. T h e arguments of our dodtors, on this point, are
* Arab. Booza, i. e. Genitale MuUeris,
S 2
Cafe of marriage
on a
condition of
fervice from
the hufband.
twofold;