the fame
privilege.)
A flave may
he fold for
the difcharge
of his wife’s
dower:
and a Modab-
bir oxMokâtib
are to difcharge
it by
labour.
How far a
m liter’s de-
lir ;g his
fla/e to divorce
his
wife, is an
argument of
his aflent to
the flayes
marriage.
without their owner’s confent, becaufe his authority with refpeft to
them ftill exifts.
If a flave marry with his mafter’ s confent, the dower [tó the
woman whom he marries] is a debt upon his perfon, for the payment
of which he may be fold, becaufe the debt has become obligatory upon
the flave on account of the exiftence of its caufe, (namely,, marriage,
proceeding from a competent perfon,') and the obligation o f the debt extends
to the mafter alfo, he having confented thereto, and accordingly
devolves upon him, in order that thé creditor may be protected from
injury ; as in the cafe of debts contrAfted by a flave in mercantile
dealing.
A Módabbir or Môkâtib (in cafe of marriage,) mull: difcharge
the dower by labour, as not being liable to be fold, becaufe the property
in them is not capable of being transferred from one to another;
this debt of the dower, therefore, is to be difcharged by their-acquifi-
tions, fo that the wife may not be fubjefled to lofs ; but their'perfoils
are not liable to be .attached for payment.
If a flave marry without his owner’s confent, and the latter afterwards
Ihould fay to him “ divorce” [your wife,~\ or “ put her awfty,”
his [the Owner’s] aflent to the marriage is not implied, becaufe fuch a
mode of addrefs bears the conftrudtion of obftruSling or riffling 'fa t
execution of the contract, as the terms divbrce and feparation apply to
that, as. well as to the diflolution of the contract of marriage already
Executed; it is therefore to be thus conftrued, either becaufe this is
fuitable to the ftate of a difobedient and refractory flave, or becaufe
the prevention of a marriage is an a£t of lefs magnitude than the af-
fenting to it. But if the owner were to fay to his flave “ repudiate
“ her by a divorce reverfiblef this implies his aflent to the marriage,
becaufe a reverfible divorce is not fuppofed but in a cafe of
marriage,
marriage, [already executed,] wherefore aflent to the marriage is hereby
fignified.
I f a perfon defire his flave to marry fuch a femal flave, and he
accordingly wed her by an invalid marriage * , and have carnal connexion
with her, Haneefa holds that the flave lhall be fold for the
diibharge of her dower. The two difciples, on the contrary, maintain
that the dower lhall be exacted of him (the flave) upon his becoming
free.TT—The foundation of this difference of opinion is that,
with Haneefa, aflent applies equally to a legal and to an invalid marriage,
and confequently the debt [of the dower] is upon the owner ;
but with the two difciples, aflent applies to a valid and regular marriage
only, wherefore the debt is not upon the owner, (whence it is
that it may be required of the flave on his becoming free at any fub-
féquent period,) for they argue that the intent of marriage is to guard
againft incontinence, and that end is obtained by regular, but not by
invalid marriages, wherefore if a perfon were to make a vow that he
will not marry, his vow applies folely to regular marriage: contrary
to a cafe of fale ; that is to fay, i f a perfon were to empower another
in fale, fuch power extends both to regular and to invalid fale, a variety
of privileges being therein involved, fuch as the right of emancipation,
and fo forth: Aboo Haneefa, on the other hand, argues that
the word “ marry” [in the owner’ s defire exprelfed to hi’s flavel is
general, and is therefore to be confidered as having a general application,
the fame as file ; and there are a variety of points involved in
an irregular marriage, as well as in fale, 'fuch as genealogy [of children
born in fuch marriage,] and the obligations to the payment o f dower,
slid to the obfervance of Edit ; and with refpect to the inftance of a
vow, as produced by the two difciples, it is not admitted as applicable
by Haneefa.
Obligation of
the dower in
a cafe of in•
•valid marriage,
contracted
by a
Have at the
defire of his
That is, under fuch circumftances of affinity &c. as invalidates the marriage.
B 2 I f