her before confummation, in this«- cafe neither party has any claim
whatever upon the other. This proceeds upon a favourable conftruc-
tion; for anology would fuggeft that the hufband fhould receive from
his wife the amount of half the dower, becaufe the whole dower remains
untouched with the hufband in confequence of the gift, which
amounts to a difcharge, but the wife does not appear to be difcharged
from what becomes obligatory upon her in confequence of divorce
before confummation.— T h e reafon for a more favourable conftru&ion
of the law upon this point is, that the identical thing which becomes
obligatory upon the wife in favour of the hufbandj in confequence of
divorce before confummation,, has, come to him, in his being difcharged
from half the dower, (through the wife’s gift,) and the end
being thus obtained, any difference in the manner in which it is
obtained will not be regarded, — that is to fay, the, end was,
that the hufband fhould recover half the dower after divorce before
confummation, and that end has been obtained, not indeed
through divorce, but through antecedent g ift, which anfwers the
fame purpofe.
I f a man marry a woman on a dower of one thoufand Dirms, and
the woman make feizin of five hundred Dirms, and afterwards make
a gift to her hufband of the whole thoufand,— as well of the portion in
her pofleflion, as of that which fhe has not received,— or o f ,the latter
only,— and thevhufband afterwards divorce her before confummation,
neither party, in this cafe, has any claim upon the other, according
to Haneefa.— The two difciples maintain that the hufband has, in
this cafe, a claim upon the wife for one half of that proportion of
which fhe had pofleflion ; becaufe they conceive of a part from the
whole;— that is to fay, if the wife were to make a gift of th& whole
dower to her hufband, without having herfelf made previous feizin of
any part thereof, the hufband has no claim to refume any thing out of
i t a n d , on thé contrary, if fhe were firft to make feizin of the dower,
and then to make a gift of the fame to her hufband, he would have a
4 claim
C h a p . III.
claim of refumption upon her for one half; and confequently, when fhe
has made feizin of any particular part or portion of it, he has a claim
of refumption upon her for the half of that part of which fhe had made
feizin; and again, on the other hand, becaufe a gift of any part of
the dower to the hufband amounts to an abatement' with refpeft to
that part, and is therefore altogether excluded from the contract*;
and confequently, when the gift is of that half which had remained
unfeized, it is the fame as if the contract had regarded the h a lf only;
(as where a feller, for inftance, makes a gift'of half the price of the
commodity fold, in which cafe it is the fame as i f the price agreed
upon were no more than the remaining half;) and fuch being the
cafe, it follows that the proportion of abatement (in;confequence of.
gift) becomes altogether excluded from the dower, axid that the half
of which feizin had been made Hands as the complete dower;-—and
as, where feizin had been made by the wife of her whole dower, and
fhe had prefented the fame to her hufband, he would ftill.'(upon divorce
before confummation) have a claim of refumption upon her for
one half, (as has been fhewn in a former cafe,) fo here, in like
manner, he has a claim of refumption for a moiety of the feized proportion,
that Handing as the complete dower. T h e argument of Aboo
Haneefa in this cafe is, that the end of the hufband hath been already
obtained, in a moiety of the dower remaining untouched with him
without any re tu rnwh erefore, upon divorcing his wife before confummation,
he would have no occafion to make any refumption: and
with refpedt to what the two difciples advance, that “ an abatement
becomes altogether excluded from the contract,” it may be replied, if
this were to be admitted, it would follow that, in a cafe where a man
marries a woman on a dower of twenty Dirms, (for inftance,) and the
* The phrafe in the original is remarkable, “ L ehaza yewlukko b’assil al
Akid,”— “ and therefore is connected with the origin of the contrary— that is to fay,—
With a period antecedent to the contract, and confequently not included in it. The term
here adopted appears to be the cleared by Which the tranflator could expreis the
fenfe. , ~ > . , > :, \ r ■ o .• ■ - , c ■ . .
woman