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•verfbility which the woman has added to the fm ple divorce is held to
be nugatory; and the Ample divorce only takes place; as if Ihe had
replied “ I have repudiated myfelf by one irreverlible divorce,” in
which cafe a divorce reverfibk only would take place: contrary to a
reply-of option, for i f (lie were to anl'wer “ I have chofen my-
“ felf,” no divorce whatever would take place, as thefe words are
not of the fame nature with divorce, for which reafon it is that if a
man were to fay to his wife “ I have chofen you,” or “ cho'ofe!”
intending divorce, no divorce whatever takes place; and in like manner,
if the woman were to lpeak firft, faying “ I have chofen myfelf,”
and her hufbaad reply “ I have confented,” no divorce whatever
takes place: yet it is an univerfally received dodtrine that if the woman
lay “ I haye chofen myfelf,” in reply to a delegation of option,
divorce takes place; but the words of the hulband in the prefent
cafe, namely, “ divorce yourfelf,” is not a delegation of option, and
hence the reply of the woman, as above Hated, “ I have chofen my-
“ felf,” is nugatory.
I t is recorded, as an opinion of Haneefa, that in the prefent cafe
divorce does not take place from the reply of the wife, “ I have fepar-
“ ated myfelf,” becaufe the woman adts contrary to the power Veiled
in her, by taking upon her to pronounce a thing different from that
delegated to her by her hulband, as the expreffion. “ feparated” is different
from divorce, the one being implicative and the other exprefs;
and the hulband delegated exprefs divorce only.
The power. I f a hulband fay to his wife “ divorce yourfelf,” he is not at
'graatid, can- liberty to retradt, as his expreffion involves a vow * , becaufe he has,
* Literally, H his words exprefs (or amount to) a Tameenf ’ that is to fay, fufpend the
matter fpoken of upon the occurrence of fome condition on the eyent of which that matter
takes place, independant of any farther volition on the part of the fpeaker; and it is
therefore, with refpedf to him, abfolute and unretradtable. Yameen is here translated voW)
as the above is one definition .of vow.
ill
WMM
in this inftance, fulpended divorce upon the execution of it by his
wife, and a vow is an obligatory adl, for which reafon a man is not
allowed to recede from it. If, however, the woman rile from her
feat, or remove from the place, the words of the hulband, as above,
transferring the power of divorce -to her, are annulled, their force
being confined to the fituation where the offer is made:— contrary to
wbere he fays to her “ divorce your Z irra , [fellow-wife,” ] as this is
a commiffion o f agency, which is not reltridted t o place, and may be
therefore retradled by the conftituent whenever he pleafes.
If a hulband fay to his wife “ divorce yourfelf when you pleafe,”
Ihe is at liberty to divorce herfelf either- upon the fpot or at any
future period, becaufe the word when extends to all times; and hence
it is the fame as if he were to lay “ divorce yourfelf at whatever time
“ you like.'”
If a man fay to another “ divorce my wife,” the perfon thus ad-
dreffed may divorce her either upon, the fpot or at any other time,
and the hulband may alfo retradt, becaufe this is a commiffion of
agency, and therefore is not abfolute, nor reftridted in point of place:
contrary to where he lays to his wife “ divorce yourfelf,” this beino-
a transfer o f power, not a commffion o f agency*, as the woman thus
addrefled adts from herfelf and not from another. But if a man fay to
another “ divorce fuch an one my wife,” (adding) “ if you pleafe,”
the man is empowered to divorce the - wife upon the Ipot only; and
here the hulband cannot retradt.— differ fays that this and the preceding
cafe are alike, the addition of “ i f you pleafe" in the one inftance,
or the omiffion of it in the other, making no difference, becaufe the
perfon fo commiffioned afterwards adts from his own will, like an
That is t0 fay, after being thus empowered, the Hands as a principal in the execution
0 divorce, and not as an agent; and a commiffion of agency may be annulled at pleafure,
Whereas the power devolved to another to a& as a principal cannot be fo.
V o l . I . L 1 agent
not be re*
traded.
The power
may be
granted generally.