Cafe of an
indebted
Maszoon, con
traced in
marriage by
his owner.
I f a. man contract his Mazoon, ox privilegedßave, who is a debtor,
' to any woman in-marriage, it is lawful; and the wife [in virtue of
her right to her dower] becomes a joint creditor with the others; that
is to fay, the Have is to be fold- for the difcharge of all his debts, and
the price arifing from the tale is to be divided between his wife and
the other creditors, in proportion to their relpedtive claims.— The
compiler of the Heddya obferves that this rule holds only where the
marriage has been effedted upon a Mihr Miß., or lefs; but i f the dower
exceed the Mifl proportion, the other creditors; are, in that cafe, 011
an equality with the wife,, fa far as the amount of her Mihr M iß, or
proper dower, and thevpayment of the excefs mull be poftponed till
after the difcharge of the debt to the creditors; the ground of which
is, that the owner’ s authority over his Have, with refpedt t,o matrimony,
is founded, on his having the property of his perfon, (as fhalL be hereafter
explained,) and that right of property ftill remaining, the marriage
of the Have is completely legal and valid.
O bjection.— In confequence of the marriage, the right . of the
creditors is rendered null, both by deßgn, and in effeSl-, wherefore it
would be requilite that, in difcharging the debts of the Mazoon, thofe
due to the. firft creditors ought to be firft p a idwh erea s it is otherwife
in this cafe, for they are all put on an equality.
R e p l y .— The right of the creditors is not designedly rendered;
null by the m a rr ia g eb u t the marriage being held valid,, the debt of
dower is due in confequence of the exiftence of its caufe; and there
is nothing to invalidate its exiftence; the dower, therefore, is the
lame as a debt of damage;,— that is to fay, where a Mazoon Have,
being already in debt, deftroys or waftes the property of a ftranger,
the latter comes in as a. joint creditor; and the Have is as a lick
debtor;— that is to fay, i f a lick perfon, being in debt, marry a woman,
the comes in as a joint creditor with the others, to. the amount
of her proper dower, and fo in this cafe likewife.
If
If a mafter contract his female Have in marriage to another man,
he is not under any obligation to fend her to-the houfe o f her huf-
band, the ftill remaining attached in fervice to her mafter; and the
hulband fhall be deft red to vifit his wife at opportune feafons, at her
matter's houfe ; becaufe his right to her fervice ftill remains in virtue
of his property in her, and if he were under any obligation to fend
her to the houfe of her hufband, his right would be rendered null.—
And if the mafter Ihould give permiffion to his female Have- to dwell
in the houle o f her hulband, her fubfiftence and lodging are incumbent
upon the hulband ; but if he Ihould not permit this, nothin^
whatever is incumbent, becaufe fubfiftence is the recompenfe for the
matrimonial reftraint, and if the live in the houfe of her hufband the
is under this reftraint, but not otherwife.— And i f the mafter thus,
permit her to dwell with her hufband, ftill he is at liberty, notwith-
Itanding, to call for and require her legal fervice at any fubfequent
'period ; becaufe his right of ufufrudt ftill continues, in virtue of his
property in her; and this right is not relinquifhed by fuch permiffion.
any more than by her marriages
T he compiler of the Heddya remarks that Imam Mohammed has
faid, “ A mafter contrasting his male or female flave in marriage is law-
“ fu l ”— without making any mention of the confent of the flave to
fuch marriage, which Ihews that this confent is not a condition; and
fuch isThe opinion of our dodtors, who hold that a mafter is empowered
to contract his flaves in marriage by compulhon,— that is to
% , that the marriagé of fuch, where it is contracted by the mafter,
holds good independant of their confent. According to Shafëi, a
mafter is not empowered to contract his male flave in marriage by com-
pulfion; and there is alfo an opinion of Haneefa recorded to this effedï:
this dodtrine proceeds upon the principle that marriage is a natural
privilege of man, and a flave is a pofleffion of his owner by the laws
° f property, but not by the laws of nature ; wherefore the mafter is-
uot endowed with any abfolute authority with refpedt to his marriage::
contrary
A mafter may
withhold permiffion
from
his female
flave to dwell
in the houfe
of her hufband.;,
,
and if he fo-
permit, her
hulband mu ft
fupp.ort her?
but not other-
wife.