the lofs o f the
goods.
I f the pur-
chafer have
the option,
and the goods
be injured or
deftroyed in
the interim,
-he is refpon-
iible for the
.fries:
but i f it reft
withthey*//ér,
the purchafer
is refponfible
for the value
only.
fubjeft to no perfon; and this is a ftate not fuppofed by the l aw .
The arguments of Haneefa on this point are twofold. F ir s t , as the
right of property with reipeft to the price has not drifted from the
purchafer, it follows that if the right of property with relpect to the
goods alio veil in him, the property with refpeft both to the thing
fu r chafed, and the return for it is concentered in one perfon, which
js abfolutely illegal. Se co n d l y , I f the right of property with refpeft
to the goods-were to veil in the purchafer, it might frequently happen
that .the goods would, in the interval, before the completion of
the fale, be made avvay, without any intention on the part of the
purchafer; (as if the purchafer had bought a {lave related to himfelf
within the prohibited degrees*;) and.as the foie objedt of the reierve
of option is the benefit o f the purchafer-, in allowing him time for con-
fiderat'ion, it follows, that if the right of property were to veil: immediately
in him, he might be deprived of the advantage which is
the object of the referve of option.
I f the merchandife, where the ftipulation of option is on the
part of the purchafer, periih or be deftroyed, the purchafer is in that
cafe anfwerable for the price. In the fame manner alfo, if the goods
receive an injury, the purchafer is refponfible for the pricebecaufe the
goods, after fuftaining an injury, cannot be returned, and the fale con-
fequently becomes binding. The purchafer, therefore, is refponfible
for -the price in either inftance; for fejtrudlion neceflarily implies previous
injury; and hence in a cafe where the purchafe is utterly defrayed,
the falefirfi becomes binding and complete, and the dedu c tion
takes place afterwards ; and as, in a cafe of injury, the payment
of the price becomes obligatory, fo alfo in a cafe of deftruftion. It is
other wife where the merchandife periflies in the pofleflion of the
purchafer when the option had been ftipulated by the feller; for in
* In which cafe the flave would become immediately free. See Vol. I. p. 432.
this
this cafe the purchafer is anfwerable only for the value*-, becaufe the
circumftance of the injury does not render the reftitution impracticable,
lince the feller, in that cafe, has the option either of taking
the merchandife thus injured, or of rejecting it, if he pleafe, as the
optional condition remains with him: and hence, as the fale does not
become„binding on the occurrence of the injury* if the feller chufe to
confirm it, the purchafer in that cafe only pays the value of the injured
merchandife.
If a perfon purchafe his own wife, with a referve of option for
three days, in this cafe the marriage fubfifts during that interval, as
the right of property does not take place becaufe of the optional condition:
and if he have carnal connexion with her during that interval,
the condition of option is not thereby annulled ; becaufe he has it ftill
in his power, after fuch connexion, to undo the fale* fince his cohabitation
with her is the exercife of a right in virtue of his marriage,
and not of his right o f property.— If* however, his wife heal virgin,
his cohabitation with her annuls the condition of option, and efta-
blilhes the fale, as it is a damage to her, and a diminution of her
value.— This is the doClrine of Haneefa. T h e two difciples are of
opinion that the hufband becomes immediate proprietor of his wife by
the optional purchafe, whence the marriage is immediately annulled.
If, therefore, he fhould have cohabitation with her, he cannot afterwards
rejedt her, although Ihe may have been a woman -j- ; becaufe,
the marriage being null, the cohabitation was not in virtue of mar-
ridge, but of property.— This difference of opinion between Haneefa
and the twodifciples, refpedlingthe property veiling immediately in a
conditional purchafer, has given rife to oppofite décidons in a variety
of different cafes. O f this number are the followingO.
Right of-option,
in the
purchafe o f a
wife, is not
affe&ed by
cohabitation
with her in
the interim
o f option.
* And not for the p r ic e fet upon it in the con tra st.
+ That is to fay, not a v ir g in .
V O L . II. L> d d If