but this rule
does not hold
with refpeft
to grain pur-
chafed upon
the ground.
A n y new
fruit which
may grow in
the interim,
is the property
o f the
feller and pur-
chctfer.
Rnle in the
purchafe o f
vegetables./
period, in this cafe the increafe of fubftance is lawful to- him, becaufe-
the leafe is null, on account of a want of precife knowledge with refpedt
to the period of it,— and alfo, on account of its not having; been
warranted by abfolute neceffity, fince it was in the power of the
lelfee to have purchafed the tree itfelf:— and the leafe being null,
there remains only the confent of the feller, to which regard muft
be had. It is otherwife where a perfon purchafes grain upon the
ground, and having then taken a leafe of the ground until the grain be
capable of being cut down, fuffers it to remain until that time; for
the increafe of fubftance is not in fueh cafe lawful to him, fince the
leafe fo made is invalid, and an invalid leafe is the occalion of bafe-
nefs and abomination.
If a perfon, in an unconditional manner, purchafe fruit upon a
tree which had not completely vegetated, and afterwards, before
he had received a formal feizin of it, new fruit fhould grow, in this
cafe the fale is invalid, becaufe of the impradlicability of delivery on
the part of the feller, from the impoffibility of diftinguifhing between
what was the fubjedt of the fale and what was not. But if new fruit
fhould appear after the feizin of the purchafer, fuch fruit is in an
equal degree the right of both, becaufe of its intermixture with the
property of both. The affertion of the purchafer, however, with
regard to the quantity is credited, becaufe the fruit is in his pofleffion.
(The fale of artichokes or melons which are growing is fubjedt to the
fame law as that of fruit growing upon trees.)
If a perfon with to purchafe fruit, artichokes or melons, and afterwards
to have it in his power to let them remain until they become
ripe, or until they fhall yield a new crop, fo as to have a lawful claim
to the property, the expedient to be practifed, in order to render fuch
conduct legal, is to purchafe the tree or bed itfelf, and after clearing it
of
of the fruit when ripe, to undo the contradt of fale with regard to ,
the tree or bed*.
If a perfon fhould fell fruit, with a refervation of a fpecific number
of Rat Is of it, the fale is invalid, whether the fruit be upon the
tree or off i t ; becaufe although the" refervation be itfelf fpecific and
known, yet the refidue is «»known. It is otherwife where a refervation
is made of a fpecific tree; becaufe there the remainder -is known,
beino' obvious to the eye.— Our author remarks that this dodtrine is
conformable to a tradition of Hafan, adopted by T’ahdvee: but that
fuch a fale is valid, according to the Zahir Rawdyet, and alfo in the
opinion of Shqfe'i, becaufe it is a rule that whatever may be lawfully
fold, feparately, may alfo be lawfully excepted from a deed of fale.
Thus the fale of one Kqfeea from a heap of grain being lawful, the
exception of it is alfo a lawful adt.— It is otherwife with refpedt to a
fcetus in the womb, or any particular member of an animal; becaufe
as the feparate fale of fuch fubjedts is illegal, fo alfo is the refervation.
of them.
T he fale of wheat in the ear, of of beans in the hulk, is valid;
and the law is the fame with refpedt to rice or rape feed in the hulk.
Shafèi is of opinion that the fale of green beans in the hulk, or of walnuts,
almonds, or Piftachio nuts in the Ihell, is not valid; but with
refpedt to wheat in the ear, he has given two oppofite opinions. All
thefe fales are, however, Valid in the opinion of all our dodtors. T h e
reafoning o f Shqfe'i is that the fubjedt of the fale, in thefe cafes, is
hidden within a thing of no value in itfelf, namely the hufk, and that
therefore the cafe becomes the fame as if a goldfmith Ihould fell a
heap of earth mixed with particles of gold, in exchange for another
* T h e confent o f the feller is here prefuppofed a for neither o f the parties can undo a
fale without the confent o f the other. T h is expedient is therefore fuggefted on a fuppofi-
tion o f the future undoing o f the fale being equally agreeable to both parties.
V ol. II. C c c
be fold on the
tree, with a
an y part.
Grain may b e
fold in the
ear, or pulle
in the hulk.
heap