3 2 0 D I V O R C E .
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B ook IV.
itfe lf: contrary to the word “ fo r ,” as that is ufed to exprefs a return,
and as the property is not due, divorce exprefs (and eonfequently re-
verfble') remains.
If a man fay to his wife “ divorce yourfelf thrice, for (or upon
“ payment o f) one thoufand Dirms, and the pronounce upon herfelf
one divorce, no effedt 'whatever takes place, becaufe the hufband is
not defirous that (he thould become feparated for any thing feort of the
■ whole fum fpecified : contrary to a cafe where the ‘propofal comes
from the wife, (as in the preceding inftance,) becaufeVas;fhe there
appears to be defirous of procuring feparation from her hufband at the'
whole experice fpecified, it follows that fhe is willing to procure it,
at the third o f that expence only, a fortiori.
If a man fay to his wife “ you are divorced upon payment o f one
“ thoufand Dirms,” and fhe agree, divorce takes place upon her, and
the hufband has a claim upon her for the thoufand Dirms, in the fame
manner as where a man fays “ you are divorced fo r a thoufand Dirms,"
and the wife confents, in which cafe divorce takes place, and one
thoufand Dirms are incumbent upon h e r: — but it is to be obferved that
in both cafes the woman’s aflent is a condition, becaufe the words of the
hufband “ you are divorced fo r one thoufand Dirms,” mean “ you
“ are under divorce in return fo r one thoufand Dirms due from you
“ to me,” ;—and his words “ you are divorced upon payment o f one
“ thoufand Dirms,” mean “ you are under divorce on conditiowithat
one thoufand Dirms be due from you to me,” and the return cannot
be made incumbent upon her without her aflent; moreover, a circum-
ftance fulpended upon a condition cannot take place until the condition
he previoufly fulfilled, wherefore the effedt in this cafe depends upon
her agreeing to what is propofed. And here the divorce is irreverfible,
for the reafon already ftated.
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If a man fay to his wife “ you are divorced, and there is againft
“ you a thoufand Dirms,” and fhe confent,— or, i f a man fay to his
Have “ you are free, and there is againft you a thoufand Dirms,”
and the flave aflent,— the Have is free, and divorce takes place upon
the wife, but nothing remains incumbent upon either, according to
Haneefa: the rule is alfo the fame i f they were not to aflent._The
two difciples fay that the fum fpecified is incumbent upon them,
where they affent; but that, i f they do not aflent, neither divorcfe
nor emancipation take place; for they argue that the latter part o f the
hufband’s addrefs is fuch as is ufed in bargains of exchange; and a
contraa of Khoola, or of Kitabat, being a contract of exchange, is
therefore to be confidered as f u c h a s in hire, for inftance, where i f a
man fay to another “ carry this burthen, and there is a Dirm for you,”
!t is A e fame as if he were to fay “ carry this burthen for a D irm ”
— To this Haneefa replies that the latter part o f the fentence has a fe-
parate and detached fenfe, and therefore is not to be connected with
t e preceding part, unlefs there be fomething to fhew that it is fo ;_
but here nothing exifts to evince fuch connexion, becaufe divorce and
manumiffion are frequently produced without any fubftantial return:
contrary to cafes' o f fate, or o f hire, as neither o f thefe are to ba
conceived without a fubftantial compenfation.
If a man % t0 hls Wlfe “ you are divorced for a thoufand Dirms,
‘ on a condition of option to me (or, to you) for three days,” and
fee confent, the option is invalid, where it is referved to him, but
valid where it is referved to her-, and if fee rejeft his propofal within
fee three days, the Khoola .is null; but i f fee do not rejeft it within
feat time, the divorce takes place, and the fum fpecified by the huf-
fend becomes incumbent upon her.— This is the dodtrirre of Haneefa.
he two difciples fay that the. option is.null in either cafe, and that
ivorCe takes place upon the woman, and the fum fpecified becomes
ttcumbent upon her, becaufe option is ufed for the purpofe o f dif-
0 vmg a contraft, o r other agreement, after it has been concluded,
A propofal ot
Khoola made
to the wife,
with a refervc
of option to
thehufband,
is invalid.