A vow again ft
entering any
particular
houfe is not
broken by
entering it
when in ruins.
Avowagainft
entering a
houfe is not
violated by
going upon
the roof, or
entering the
portico, &c.
longer applied to the place, as it is then called by another name, fuch
as mofque, and fo forth: and the fame rule holds where this perfon
enters that place after the deftrtidfion of fuch mofque, bath, or other
public building, as may in the interim have been eredled there, be-
caufe the place will not recover its original name after fuch de-
ftrudhon.
If a man fwear “ he will not enter fuch a dwelling-houfe,” and
he fhould enter therein after it had been deflroyed or become defolate,
he is not forlworn; becaufe the term dwellmghoufe is abrogated, as- no
perfon then dwells in i t ; whereas, if the roof only fhould have fallen
in, and the walls remain, and he were then to enter it, he would be
forfworn, becaufe it is flill confidered as habitable, and the place does
not lofe its appellation of a dwellmghoufe \Bait \ from that circumftance.
In the lame manner, he is not forfworn where, the houfe having been
deflroyed and laid level with the plain, another houfe is- built upon the
fame fpot, and he then enters this houfe,— becaufe the term dwelling-
houfe, as applied to the former ho-ufe, was rendered inapplicable by the
circumftance of its ruin.
If a man fwear that “ he will not enter a certain houfe,” and he
afterwards go on the top of the houfe, from the outfde, he is forfworn,
becaufe the roof is a part of the houfe. Some have faid that,
with us, he is not forfworn.— In the fame manner, he is forfworn if
he enter the portico only of the houfe fpecified in the vow. T h e compiler
of the Hedaya obferves that this cafe admits of a diftinctian: thus,
if the portico be fuch as that, if the door be Ihut, it forms a part of the
houfe, and it be covered- in, he is forfworn, but if other wife,, he is not
forfworn.— If he Hand under the arch of the doorway he is alfo forfworn,
provided the arch be fo conftrucfed as that when the door is
Ihut it becomes included as a part of the houfe; but if the arch be fo
fituated as that, after Ihutting the door, it is not included as a part of
the dwelling, he is not forfworn, becaufe the door is deligned as a protection
tedfion to the houfe; fo that whenever the archway is not, by Ihutting
the door, included as a part of the houfe, but is without the door, it
is evident that it is not included in the houfe.
If a man Ihould fwear “ I will not enter Into this houfe,” and it
fhould fo be that he is in the faid houfe- at the time of fweanng thus,
he is not forfworn by fitting down in that houfe, nor unlefs he go out
of the houfe, and again enter it. This is upon a favourable conftruc-
tion.— Analogy would fuggeft that the vower is forfworn, becaufe the
effedt of the commencement of the act and of its continuance' is one and
the fame; and as he would be forfworn by the commencement of the adt,
fo he is by its continuance: but the more favourable conftrudtion is that,
admitting the effedt of the commencement and the continuance to be the
fame, yet this can only be where the adt is of fuejj a nature as to be
capable of continuance, which the entrance into a place does not allow,
as the word entrance Amply implies paffing from without to
within.
If a perfon fwear that “ he will not put on a particular garment,”
and fhould happen to have the faid garment upon him at the very time
of his fo fwearing, and fhould forthwith take it off, he is not forfworn.
And fo alfo; a perfon riding upon a mule [or other beaft] if he takes an
oath, faying “ I will not ride upon this animal,” and fhould forthwith
alight, he is not forfworn. In the fame manner, a perfon re-
fiding in a houfe, if he fwear that “ he will not live in this houfe,”
and thereupon begin to remove out of it, he is not forfworn.— Ziffer
maintains, however, that the fwearer, in the laft of thefe inftances,
is forfworn, as the circumftance upon which the violation of his vow
is fufpended, (namely, his refidence in the houfe,) does already exift,
however fhort the time may be. Our dodtors argue that a vow is im-
pofed with a view to the fulfilment of it, and therefore, that in the
prefent inftance, fuch a fpace of time as admits of the fulfilment muft
be excepted from the v ow ; and hence,, if the fwearer make any delays
he
Cafe of vows
refpe&ingab-
ftinence from
a thing; in
which the
vower is at
prefent en-
gaged.