In the fale o f
a houfe, the
foundation
and fuper-
ftrufture are
both in cluded.'
In the fale o f
land) the trees
■ upon it are
included:
but not the
corn:
nor, in the
fa le o f a tree,
is the fr u it
then upon i t
included-:
•but.the pur-
chafer muft
immediately
cIobx jh efe
.away.
things eftimable by w eig h ty and hence the learned deem it lawful
to fell even a J in g le y a r d of it.
I f a perfon fell the place of his abode (in other words, his h ou fe)
the foundation and fuperftrudture are both included in fuch fale, although
they may not have been Ipecified by the feller ,; becaufe they
are comprehended in the common acceptation of the term; and alfo,
becaufe, being joined to the'ground in the nature of fix tu r e s , they are
confidered as dependant parts of it. -
In a fale of la n d , the trees upon it are included although they be
not Ipecified, becaufe they are joined to it, in the fame manner as
foundation and fuperftrudture in the preceding cafe.
In a fale of ground, the grain then growing on it is not included
unlefs particularly fpecified. by the feller; becaufe it is joined to the
ground, not as a'fix tu r e , but for the purpofe of being cut away from
it, in the fame manner as goods of any kind which may have heen
placed aipon it.
So alfo, if a perfon Ihould fell a tree on which fruit is growing,
the fruit belongs to the fe lle r , unlefs it had been fpecifically included
in the fale; becaufe the prophet has faid “ I fjip c r fo n f e l l a date tree
w ith f r u i t upon i t , th e f r u i t belongs to th e f e lle r , un lèfs th e p u r -
“ ch a fe r J h o u ld h a v e fiip u la te d its d elivery to him as a condition o f
“ fa le ." Befides, although the fruit be,'in fa£t, a part of the tree,
yet as it is intended to be plucked and gathered, arid not to
be fuffered to hang on the tree, it is therefore the fame as grain.
It is to be obferved, 'however, that in the fale of a tree with
fruit, or of ground with grain upon it, the feller muft be immediately
defired to clear them away, and deliver the property to the purchafer;
becaufe, in thefe cafes, the property of the purchafer and feller being
im p lic a te d
implicated together, it becomes incumbent on the feller to clear away
what belongs to-him; in the fame manner as if he had placed any of
his goods upon the ground, in which cafe the clearance of them
Would have been requifite. S h a fe i maintains that in both thefe
cafes the grain and the fruit muft be fuffered to remain until they become
ripe, becaufe there ought to be a period ftipulated for the delivery
of the things fold, and that period ought to be extended to the
complete growth and maturity of thefe. vegetables; in the fame
manner as in the cafe of a leafe of ground, where if, at the expiration
of the leafe, the grain.on the ground be g re en , it is fuffered to
■ remain until it ripen. Our doftors, on the other hand, argue that
the obligation is'the fame on a lejfeey and if he be permitted to extend-
the leafe on account of the unripenefs of the grain, he muft, however,
pay additional rent for it, which is a fubftitute for the delivery; and
th e -fu b ftitu te is in effeö the fame as the th in g itfe lf. It is to be obferved
that in the fale of a tr e e , the f r u i t is not included, whether
it be of ah. appreciable nature or otherwife, unlefs it be fpecifically
mentioned. " ,
If a perfon fell a piece of ground in which feed has been fown,
but of which the growth has not appeared above ground, in this cafe
thë«feed is not included in thé fale. If the apparent growth Ihould
have taken place, though not in fuch a degree as to render the vegetable
of any value, in this cafe there is a difference of opinion. Some
In the fale o f
ground, the
feed fown in
it is not in cluded.
allege that the vegetation is not included in the fale; and others, that
it is. This1 difference of opinion has its foundation in the different
fentiments which the parties entertain with regard to'the validity of
the fale of vegetation, prior to its being fit to be cut down by the hook,
or ufed by animals in the way of forage; .for thofe who confider the
fepa'rate fale of fuch vegetation to be valid are of opinion that it is
not -'included; whilft thofe who confider the lale of it' as invalid are"
of opinion that it is included in the fale of-the ground.