The fame
when the
dower coniifts
of e jft(ls•
woman makes a gift to him of fifteen Dirms out o f the twenty, ten
Dirms would remain obligatory upon the hufband; becaufe, the abatement
being excluded from the contract:, it would be the fame as if he
had married her upon a dower of five Dirms', and i f he had married
her upon fuch 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 are obligatory upon him: this idea would
confequently lead to an unjufl and unfounded conclufion, and is therefore
inadmiffible.
I f a man marry a woman on a dower of one thoufand Dirms, and
fhe make a gift to him o f a part lefs than the half,— two hundred, for
infiance,— and take pofleflion of the remainder, and the hufband afterwards
divorce her before confummation, he has, in this cafe, (according
to Aboo Haneefa,) a claim of refumption upon her for fuch a
fum as, together with what fhe had previoufly beitowed upon him,
makes a moiety of the whole, namely (in the fuppofition before
mentioned) three hundred Dirms:— according to the two difciples,
on the contrary, his claim of refumption is for the half o f what the
woman had made feizin of, namely, four hundred Dirms.
I f a man marry a woman on a dower confifling o f certain fpecified
effects, and fhe make a gift of the fame to him, either before or aftEr
feizin, and he afterwards divorce her before confummation, he, in
this cafe, has no claim of refumption whatever upon the woman.
— This proceeds upon a favourable conflrudfion.— Analogy would
fugged: that he fhould have a claim to the amount of the value
of half the effects, becaufe here it becomes obligatory upon the*
woman to make reditution of half the dower, as was already explained,
and fhe is incapacitated from making reditution by delivery
of half the actual effects, in confequence o f her gift ; wherefore it
would appear that fhe fhould make it by paying the edimated value of
one half.— But the reafon for a more favourable condrudtion of the law
in this cafe is, ■ that the hufband, who is entitled to recover from the
woman one half o f what fhe had taken pofleflion of, in confequence
of his having divorced her before confummation, has already adtually
obtained this, (through her g i f t ;) whence it is that the woman
would not be at liberty to give her hufband any other thing in lieu of
thole effefts, becaufe the confideration confids of a thing capable of
identical fpecification, and of courfe the faid effefts, which have been
in pofleflion of the woman, and by her made over in gift-to her hufband,
conflitute a dower of a certain fpecific defcription; thus the
hufband appears to have received that adfual thing which had been
rendered obligatory upon the wife by divorce before confummation:_
contrary to the cafe of a dower confifling of a debt; for here, i f the
wife were to make feizin of fuch debt, and then to make a gift o f the
fame to her hufband, and he afterwards to divorce her, as above, he
would, in this cafe, have a claim of refumption upon her for the
value of one half o f the dower, becaufe a debt o f this nature is, like
money, incapable of identical fpecification:— and contrary, alio, to a
cafe where a woman, having taken pofleflion o f effedts, as a dower, (as
was dated in the preceding cafe,) fells fuch effects to her hufband,
becaufe, in this cafe, they have come back to him for a confideration,
and his claim is to the recovery of the half o f her dower without any
confideration.— And if the dower confid of an animal, or o f effedts,
which are a debt upon the hufband *, the rule is the fame as in the
cafe of one confifling o f fpecified effects; becaufe the thing feized
by the woman is of fuch a nature as, i f fhe had herfelf borrowed it,
mud be reflored by her in fubflance; and articles of this defcription are
all capable of identical fpecification.
If a man marry a woman on a dower of one thoufand Dirms +,
.. ^hat.is to fay, an animal, or effects, which had been borrowed or-procured upon
credit by the hufband.
.1.n cafe proceeds-on the fuppofition of one thoufand Dirms being of lefs value than
e woman s proper dower.
V ol. L
Cafes of fti-
pulation in
T on