T h e com-
pen fation for
K h o o la may
confiit o f any
thing which
is lawful in
d o w e r .
Cafe o f
K h o o la required
in lieu
o f property
unfpeciiied.
Cale of
K h o o la in lieu
o f an ab-
Äondedilave.
W hatever is capable of being accepted as a dower,, is alfo capable
of being accepted as a eompenfation for l^hoola, fince whatever is
capable of being a proper return for that which is appreciable,
^namely, the woman’ s perfon at the time of its coming into propriety
mull, in a fuperior degree, be capable of being a eompenfation for a
thing not appreciable, (namely, the woman’s perfon at the time of
the deftruction of propriety.)
? f a woman fay to her hufband “ Grant me Khoola for what is in
“ my hand,” and he,agree, and it fhould afterwards appear that foe
.had nothing in her hand, divorce takes place ; but nothing remain,
.incumbent upon the woman, as fhe has-not deceived her'hufljandiby
any fpecific mention of property: but i f lhc were to fay “ grant me
Khoola for the property in my hand,” and he agree accordingly, and
it fhould appear that fhe had nothing in her hand, fhe mufl in this
.cafe-return to him her dower, becaufe fhe has deceived him by a fpe-
-cification o f property which did not exift; and hence he does not appear
to coiifent to a relinquifhment of the connubial propriety without
.a .return, and the. woman cannot be legally bound to give the thing
-fpecified, or its value, as its kind Or ipecies is unknown; neither can
■ fhe be laid under any legal obligation to render the eflimated value qf
her perfon, (that ia, her proper,dower?) becaufe, in the circumftance
o f the deflruftioaef the connubial propriety, that is not appreciable; it
is therefore fixed that there remain incumbent upon her whatever the
hufband may have given in lieu of his attainment of the propriety, in
.order that thus ,h.e may he fhielded from injury.— If, moreover, a
.woman fay to her hufband •“ grant me Khoola for the Dirms in my
“ hand,” and'he agree, and it afterwards appear that fhe had nothing
in her hand, he has a claim upon her for three Dirms— The proofs are
here taken from the Jlrabic..
‘I f a man enter into an agreement o f Khoola with his wife, in lieu
of.an abfeonded flaye, on the condition that, i f the flave be recovered,
foe
foe fhall make him over to the hufband, but i f not, fhe fhall not be
anfwerable; yet fhe is not releafed from refponfibility, and it remains
incumbent upon her either to make delivery" of the Have ot o f his-
value, becaufe an agreement o f Khoola is of a reciprocal nature,.
(whence it is requifite that the recompence be received on the part of
the hufband;). and the condition of releafe from refponfibility agreed to
by the parties is disapproved, and confequently void; but yet the Khoola
is not fo, as it is not rendered void by involving an invalid condition.-
Analogous to this is a cafe of marriage;— for i f a man marry a woman,,
agreeing to give, as her dower, an abfeonded flave, on the condition,
that if he be recovered, he fhall be made over to her— but i f not,,
that the-hufband is not to be anfwerable; yet the- hufband is not releafed
from refponfibility, and it remains incumbent upon him either ’
to deliver to.his wife the flave fpecified, when able fb to do,, or topay
her his price-
I f a woman fay to her hufband. “ divorce me thrice for cute Cafes of
“ thoufand Dirms, ” and he pronounce a- fingle divorce, there re- f i f a if a l'
mains incumbent upon her one th ird af the thoufand Dirms, becaufe,
in requiring three divorces, for the whole fum, fhe has required each-
divorce,, feparately,. for. the third: of that; fum.— It is however to be.
obferved that thë fiiigle divorce pronounced..in this cafe is irreverfible,,
as being given in lieu of property.
If a woman.fay to her hufband “ ■ divorce me thrice, upon my par-*
“ ingyou one thoufand D ir m s and the hufband give her one divorce,.
nothing is incumbent upon the woman,, according to Maneefdi and
the hufband is- at liberty to take her back. T h e two difciples fay that
a divorce irreverfible takes place in return for one third of thé thoufand
Dirms, .becaufe the expreffion “ upon payment o f" is th e fame as the
word “ fo r " in contracts of exchange. The argument of Hancefa is-
that the expreffion “ upon payment" is a condition, and the thing conditioned
cannot be. divided. according to the parts of the condition
itfelf ;