over the thing appropriated to a Moofwalee or procurator; (for a transfer
to the Almighty, who is himfelf the proprietor of all things, although
it cannot be effefted a&uatiy and exprefily, yet may be fo dependantly,\
and therefervingof the whole or part of the income arifing from it to
his own ufe is repugnant to this, becaufe, the delivery cannot be
made to himfelf .— The cafe, therefore, refembles the referve of an
alms-gift,— and alio the referve of a part of a mofque;—-in other
words, if a perfon were to affign certain property to the poor, ftipu-
lating at the fame time, that his right in part of it fhould continue,
the alms under fuch a condition are u n la w fu lo r , if the founder of
a mofque ftipulate that his right in a part of the mofque fhall continue,
this oppofes the legality of the whole foundation:— and fo alfo in
the cafe in queftion. The arguments of Aboo Toofaf upon this point
are threefold.' F i r s t , the prophet was accuftomed himfelf to con-
fume the revenue arifing from what he had appropriated. Now the
ufe would not at any rate be lawful, unlefs the appropriator had previ-
-oufly flipulated it for himfelf at the time of appropriation ; the prophet
confuming the revenue, therefore, argues that it is lawful for an
appropriator to referve that to his own ufe. S e c o n d l y , appropriation
implies the owner of a property deftroying his right in that property
by a transfer of it to G o d , under feme pious intention, (as was
formerly ftated;) and fuch being the cafe, where an appropriator referves
a part or the whole of the revenue arifing from what he appropriates to his
own ufe, it follows that, in fo doing, he referves to himfelf a thing which
is the property » / G o d , • {not that he referves to himfelf what is his own;)
and a perfon s referving to himfelf a thing which is the property of
G o d is lawful; thus, if a man build a caravanfera, or conftrudt a
refervoir, or give ground for a burial-place, referving to himfelf the
right of refiding in the caravanfera, or of drinking water out of the
refervoir, or of interment in the burial-place, it is lawful; and fo like-
wife in the cafe in queftion.-—T h i r d l y , the defign, in appropriation,
is the performance of an aft of piety: and piety is confiftent
with the circumftance of a perfon referving the revenue to his own
S ‘ ufe,
Book XV. A P P R O P R I A T I O N S . 351
ufe, as the prophet has faid “ A man giving a fubfiftence to himself is
u giving alms *.
If the appropriator referve to himfelf a right of changing the lands
he appropriates for any other lands,, at pleafure, it is lawful, according
to Aboo Toofaf. Mohammed maintains that the appropriation.it-
felf is valid, but that the condition referved is void; becaufe the condition
does not prevent an extinction of right of property ; and the appropriation
is confequently complete, becaufe o f the extinction of this
right; but the condition, as being invalid, is void, in the fame manner
-as the referve of a right of change, in the foundation of a mofque,.
is void»
If the appropriator referve to himfelf a right of option with
refpeCt to his appropriation, for three days, by faying (for inftance)
« I appropriate this houfe to-fuch and fuch purpofes, with this con-
•“ dition, that I (hall have a right of option for three days;:’’ according
to Aboo Toofaf both the appropriation and the condition are lawful.
According to Mohammed, on the contrary, the appropriation is null..
Their difference of opinion upon this point originates in the difference
of their do&rine refpedting a referve of the revenue of an appropriation
to the ufe of the appropriator: for a-s, according to Aboo Toofaf,
an appropriator may lawfully-referve to his-own ufe, during life, the
revenue arifing-from what he appropriates, it follows that he deems-
it lawful that the appropriator referve a right of option for three
days, -for the purpofe of confideration. Mohammed', on the other-
hand, holds that the poffeffion of a Mootwalee or procurator, is an
effential, and-as a referve of option prevents pofleffion, from being
* A s where (for inftance) a man appropriates the whole o f his property, thus reducing:
himfelf to poverty; in which cafe the charity is-as effectual with refpett to him.{where he
neceflarily referves a.fufficiency from, the ..prpdufl: fpr his oyvn fuftenance) as with.refpedt to
flny^ other pauper. .
or, with a referve
o f a liberty
to
change the.
Jubjed
or, with a refer
ve o f a
right o f option
;.
completely.