T he imme-
product is not
included, in
the fale o f
land or trees,
although the
rights and
.appendages
be expreffed.
in' the cont
r a l i j
nor unlefs all
its depen-
dancies be
generally ex-
prefTed:
nor can any
product be
included afte
r being gathered,
or cut
down*
Fru it may be
fold upon the
tree in every
Hate o f
g row th :
but i f the
contract involve
any
condition not
properly appertaining
to
fale, it is null.
G r a i n and fru it are not included in, a fale of ground, or of a tree,
although the purchafer, and feller fpecify; the rights, and appendages,
(in other words, although the feller declare “ I have fold this
“ ground, or this tree, with all its rights .and appendages,!’) becaufe
grain and fruit do not fall under thefe defcriptions. (T h e rights o£ a.
thing are thofe without which it cannot be enjoyed, and which form the
principal objeft of pofl'elfion, fuch as a water courfe or a road:— the appendages
are things from .which we derive ufe, but which are more particularly
confidered as dependant parts, fuch as a cook-room, or a.houfe
for keeping water. — In the fame manner, if the feller fhould .fay I
“ have fold this tree, or this piece of ground, with every thin°- fmall'-
“ and great of its rights and appendages which I pofl'efs in it,” ftill
neither the fruit nor the grain is included in it.— If, however, he
Ihould fay in a general manner, “ I have fold this tree, (or this piece
“ of ground,') with every thing great and fmall which I polfefs in it,”
in this cafe the grain and the fruit are neceflarily included in it.— It
is to be obferved that grain which has been cut, or fruit which has
been plucked, cannot by any conftruction whatever be included in the'
fale, unlefs exprefsly mentioned as fuch.
T he fale of fruit upon a tree is valid, whether the Bren°th o f
the fruit be afcertained or not;— that is, whether it may or may not
have reached fuch a degree of Brength as may preferve it from common
accidents;— becaufe fruit is a property of certain value, either
immediately, in cafe of its being ripe, or hereafter, in cafe of its beino-
in an unripe Bate:— (fome have faid that the fale of fruit in a weak
Bate is invalid: the BrB cloCtrinc is, however, the moB authentic:)
and the lale of fruit in an ablolute manner being valid, the purchafer
muB immediately take it from the tree, whether this be particularly
expreffed as a condition in the fale or otherwife. If, however, the
condition of fuffering the fruit to remain on the tree be Bipulated, the
fale is null, becaufe fiich a condition is illegal, fince it implicates together
the right of property of the two parties, which is repugnant to
4 the
the nature of fale; and every condition of this kind invalidates the
fale. Befides, in this- cafe it mull neceflarily follow that one deed is
interwoven with another; in other wordsi that either a loan oraleafe
is implicated with the fale, which is unlawful. In the fame manner,
the fale of grain, with a Bipulation of leaving it on the feller’s ground,
is unlawful, and for the fame, reafbn. The fame rule alfo obtains
(according to Haneefa and Aboo Yoofqf,') where the fruit or corn has
attained its fu ll growth, as this implicates the right of property of two
parties. Mohammed is. of opinion that, in this inBance, fuch a condition
is lawful, becaufe of the exiBence of the whole of the thing in
queflion; whereas, in the former cafe, the part of the property
which afterwards vegetated was not in being at the time of the con-
clufion of the deed; and the Bipulation of a condition with regard to a
nonentity being illegal, the fale is therefore null.
If a perfon purchafe fruit upon the tree before it had reached its The addi-
full growth, in an abfolute manner, (that is, without flipulating the o f fruit p ' r *
Condition of its remaining upon the tree until it become ripe,) and chafed on the
afterwards, with the permiflion of the feller, fuffer it to hang on the ed to conti-"
tree, in this cafe the additional growth becomes his lawful property. b“eco”^°”t “ p
If, however, he act in this manner without the confent of the feller; lj|e feller> is
hemuBthen beBow the difference in charity, as being the produce of o f the pur-^
the property of another without the confent of that other.— If, on the afer'
other hand, the fale fhould have taken place when the fruit had attained
its full growth, and the purchafer fuffer it to remain until it
become ripe, heds not'on that account required to beflow any thing
in charity, becaufe in this inBance a change from one Bate to another
takes place without any increafe being made to the fubftance.
I f a perfon, having in an abfolute manner purchafe.d fruit which and lb a lfo ,i f
had not attained its full growth, fhould afterwards fuffer it to remain take's i^ o f
on the tree till it became ripe, by taking a leafe of the tree till that the tree:
period,.