dower is thé radical obligation in a contract of marriage, like the price-
of'a purchafe, in a contract of fale, as that is the molt equitable, being
a medium adjuftment, neither over nor under, and confequently it is
not to be deviated from, except in cafes where the fpecification of the
dower is perfect and complete; but here the fpecification is not
complete, lince neither Have has been particularly mentioned by the
hufband, in fettling the dower, but both indefinitely: contrary to a
cafe of Khoola, or of manumiffion for a compenfation, fince in neither
of thefe is there any radical compenfatory obligation underftood, independent
of fome particular previous agreement; for if a have were to
fay to his mafter, “ emancipate me,” and the mafter were to reply
“ thou art f r e e o r if a wife were to fay to her hufband, “ grant me
jS Khoola,” and the hufband were to reply “ I have granted Khoola,"
no obligation whatever would remain upon the Have or the wife;
whereas', on the contrary, if a woman were to fay to a man “ marry
“ me,” and he were to reply “ I have married you,” her proper
dower would be incumbent upon him; but where the rate of the
more valuable flave falls fhort of the proper dower, the wife has virtually
acceded to the abatement; and, in like manner, where the rate
of the leafl valuable flave exceeds the proper dower, the hufband has
virtually agreed to the excefs; and fhe then receives one or other of
the Haves, as the cafe may be.— It is here to be obferved that, if
divorce take place before emancipation, the wife is to receive from her
hufband a prefent in' addition to half the price of the leafl valuable
flave: this is a rule eflablifhed by cuflom, and muft be complied with,
as an obligation on the part of the hufband, although the value of the
prefent fhould even exceed the half price ó f fuch flave.
If a man marry a woman, affigning her, as a dower, an animal
undefcribed, it is approved, and the woman fhall receive an animal
of a middling flandard; but the hufband has it at his option, inftead
of this, to pay her the value of fuch an animal in money.— T h e compiler
of the Hedayd obferves that this is to be underflood only where
a man names the fpecies of the animal in general, without any fpecific
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cific defcription, (as if he were to fay “ I will give you as a dower a
“ horfe," or “ an a ft," without defcribing whether it is to be an
Arabee ora T’oorkee. ;) but where he does not mention the fpecies of
the animal, (as if he were to fay “ I will give, as a dower, a qua-
“ druped,"') it is not lawful, and he in that cafe becomes liable to
make good to the woman her proper dower.— Shafe'i maintains that a
proper dower is obligatory in either of the above cafes, he holding that
nothing is fit to be affigned as dower, in a contract of marriage, but
what would be capable o f appreciation in a contract of fale; and an
animal undefcribed is incapable of appreciation, as being unknown,
and confequently cannot conflitute a dower.— The argument o f our
dodtors is, that acontradlof marriage includes an exchange o f property
I for that which is not property, (for the ufe o f the woman’s perfon,
which is the return, cannot be termed fuch; )—-now the law admits
that animals may be a debt upon the perfon, in the courfe o f an exchange,
where there is no property in return, as in the cafe of Deeyat,
where an hundred camels are rendered obligatory in law, their defcription
being undefined: the dower is therefore to be confidered, in
this refpedl, as a property, concerning which the man has taken an
obligation upon himfelf a priori, in the manner of an acknowledgment
; now ignorance, with refpedl to the adtual property, does not
invalidate an acknowledgment by which a perfon takes upon himfelf,
a prion, an obligation concerning i t ; as for example, if a perfon
were to acknowledge that he owed a flave, or any thing elfe undefcribed,
his acknowledgment would be good, and the fpecification
would reft with him.
Objection.— I f the nomination of a dower be to {land the fame
as an acknowledgment, it follows that the nomination of an animal
on account of dower is approved, although the fpecies- remain unknown,—
the fame as in an acknowledgment refpedling property
unknown,— which is not the cafe.
Re p l y .—-A knowledge o f the fpecies of the animal is made a condition,
in conformity with the rule, that a fpecified dower fhall con-
4 fifl