A man pur. JF a man nurchafe a Ihare in his Son of a perfon who was before
chafing a *■ „ - . . . ..
iiiare in his the foie proprietor, and he [the purchalerj be neb, yet (according to
owe indem0-' Haneefa') he does not owe any indemnification to the feller, as the
nification. latter appears to be confenting to the eventual extinction of his own
property, by the a£t offale. T h e two difciples (agreeably to their
tenet, as before Hated,) maintain that if the father be rich he muff
give indemnification.
Cafe of a If one of three partners in a flave fhould conftitute his Ihare in
^tripartite* fuch fla ve Moddbbir, (that is, free at his deceafe^,) he being rich,
partnerlhip. and another partner fhould afterwards emancipate his Ihare, he alfo
being rich, and the third partner remain lilent,— and thé fir fi and
third partners be delirous of taking,'indemnification, in this cafe the
third partner is to take indemnification to the amount of the third of
the Have’s full value from the fir fi partner,— not from the emancipator,—
and the fir fi partner to take indemnification from the .emancipating
partner, to the amount of a third of the value of the Have, ..efti-
mating the fame at the rate of a Moddbbir only, and not at the full
value, as taken by the third partner. This is the doftrine of Haneefa.
T h e two difciples allege that the Have devolves folely to the partner
who had previoufly conflituted his Ihare Moddbbir, and who mufl indemnify
his two partners for two thirds of the eflimated value of the
Have, whether he be rich or poor.— T h e foundation of this difference
of opinion is, that Haneefa holds Tadbeer (or the a£t of conflituting a
Have Moddbbir) to be divifble, as well as manumifiion: contrary to the
tenet of the two difciples, who holding manumiflion to be indivifib'le,
maintain that 5Tadbeer, as being a branch at manumiflion, is fo like-
wife:— now, on the principle of Haneefa, fince Tadbeer admits of partition
with refpeft to the fubjeCt of it, it follows that the tadbeer
granted by the firfl partner affects his Ihare in the Have only ; but as it
depreciates the value of both the other partners’ Ihares, each has it in
gll! IS
See Tadbeer.
his
his choice either to conflitute his Ihare Moddbbir,— or to emancipate
or make Mokatib the fame,— or to take indemnification,— or to require
labour of the flave,—-or (laflly) to leave the matter as it is,—
Tecaufe each Hill remains in fu ll poffejfion of his refpeCtive Iiiare, but the
, value has become depreciated to each by the aft of the firfl partner
fince1 in confequence thereof fheir Ihares are no longer transferable by
fale or g ift: and if one of them remain filent, and the other adopt
the option of emancipating his Ihare, his right to emancipate is efla-
blifhed, but no further option (to take indemnification, and lo forth,)
remains to him: and where fuch is the cafe, the partner who continues
filent has two feparate grounds of claim to indemnification for
the value of his Ihare,— namely, the aft o f Tadbeer on the part of one
partner, as depreciating the value of his portion in the flave, and the
a£t of emancipation on the part of the other partner, as eventually de-
flruftive of his right: but he is to require fuch indemnification of the
former, rather than of the latter, fo as that it may be in the manner o f
reciprocal indemnification, by the indemnifier becoming, in confequence
thereof, poflefled of the thing for which he gives the recompence;
becaufe reciprocity is the primary idea in indemnification for property;
and, in the prefent cafe, refpect may be had to this primary idea, by
Tati filent partner taking the indemnification from the partner who had
conflituted his Ihare Moddbbir, and who in confequence becomes pof-
fefled of the filent partner’s Ihare, as the flave at the time o f his third
being conflituted Moddbbir is capable of going from the pofleflion of
one perfon into that of another, fince he .is as yet an abfolute fiave-,
whereas if, on the contrary, the filen t partner were to take the indemnification
from the emancipating partner, attention to the primary
idea is defeated, as the flave, at the .time of the emancipating partner
liberating his Ihare, is a Moddbbir, fince his aft of emancipation was
pofterior to the others aft of Tadbeer, which rendered the flave incapable
of devolving from the pofleflion of one perfon into that of another*.
tht filent partner mufl therefore take indemnification from the
perfon who had conflituted his Ihare Moddbbir,— after which it belongs
M m m 2 . to
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