A iale fixing
;i particular
price to each
particular
part or portion
o f goods,
in the grofs,
extends only
to one fuch
part:
and a fale ex-
preffing the
*wbole quantity
, in this
• delivered afterwards,) becaufe in fuch cafe there is a probability of the
vell'el or done being loft or deftroyed during the long interval that
takes place between the conclufion of the contrail and the delivery of
the goods; in which cafe, as the parties had no other criterion (during
the exiftence ot the ftone or vefl'el) than their eye-fight to judge from,
a contention might afterwards arile as to the ftze or weight of the
ftone or vefl'el.
If a perfon fell a heap of grain, by declaring “ I have fold this
“ heap at the rate of one dirm for every Kafeez*,” in this cafe (according
to Haneefa) the fale takes place in one Kafeez only; nor can
it extend beyond that quantity, unlefs the feller ftiould explain, in
the fame meeting, the fum of the Z a r a ’s.— -The two difciples are of
opinion that the fale of the whole is valid in both cafes. The rea-
loning of Haneefa is that it is imprafticable to extend the fale to the
whole of the heap, becaufe both the goods to be delivered and the
price to be received are in this cafe uncertain: it muft therefore be
conftrued as exifting in one Kafeez, the only afcertained quantity.
It is rendered valid, however, with refpedl to the whole quantity, by
the removal of the uncertainty,— that is, by the feller either explaining
the total, or afcertaining it by meafurement durino- the
meeting. The argument of the two difciples is, that the power of
removing the uncertainty refts with the parties:'and that the uncertainty,
in this cafe, ought not to be deemed a bar to the validity of
the fale ; in the fame manner as it is not a bar where a perfon fells
onejlave out of two, leaving it in the option of the purchafer to fix on
either of them.
If a perfon fay f\ I have fold my flock of goats at the rate of one
dirtti for each, the fale in that cale is altogether invalid,— in other
words, it is not extended even to one goat,— according to Haneefa;
* A meafure containing about fixty-four pounds weight.
and
and in the fame manner, the fale is altogether invalid if a perfon fell
cloth at the rate of one dirm the yard, without explaining the number the
of yards; and the fame of every other article, fuch as wood, pots, or
the like.-_The two difciples are of opinion that, in all thefe cafes, ticularly fpethe
fale is valid with refpedl to the whole quantity, becaufe the re- clfied-
moval of the uncertainty is in the power of the parties; and alfo,
becaufe fuch uncertainty does not prevent the validity of the fale,
as is demonftrated in the preceding cafe. The arguments o f Haneefa
in fupport of his opinion are alfo the fame as thofe advanced by
him in the preceding cafe;— in which, however, he has admitted the
validity of the fale with refpedl to one Kafeez of wheat, becaufe all
Kafeez s of wheat being the fame, no contention can arife in the
delivery of it,— whereas, in the cafe in queftion, the different articles
comprehending in themfelves unequal unities, the delivery could not
be made without contention.
If a perfon purchafe a heap of grain for one hundred dirms, on the
condition of the heap amounting to one hundred K afeezs, and it fallfhort,the
be afterwards difeovered to fall fhort of that amount, in this cafe the
purchafer has the option of either taking the actual amount, at a rate take it, or
proportioned to the terms of the contrail, or of undoing the contrail ““a.' econ
entirely; becaufe a breach of the terms takes place before the deed is
rendered complete, fince, in order to render the deed complete, it is
neceflary that the aftual quantity ftipulated be taken pofleffion of.
If, on the other hand, the heap be afterwards found to contain an ^6 «-
excefs beyond the ftipulated amount, the fale is valid with refpedl to is valid to the
the amount of the one hundred Kafeez's, and the excefs continues the
property of the feller; becaufe the fale is reftri&ed to a fpecific quan- gained for,
tity , and the excefs is not included in the defcriptioiv lb as to be a
dependant thereof, and not a feparate article.
If a perfon fell a. piece of cloth for ten dirms, on the condition- of Ifthequar.-
r ' . r * r , c tity be o f a
its contents amounting to ten yards,— or a piece of ground tor one nature cap a- -
8 hundred