"Cafe o f felling
two
flares, with a
condition of
option with.
refpeft to one
.of them.
follows that the ftipulation of it for another, who is not one of the
contrafting parties, is illegal, in the fame mannèr as. if it were fti-
pulated that :Ibme other than the purchafer Ihould pay the price.—
'The arguments of our doftors are, that the eftablilhment of the right
of option, in one who is not a party to the contraft, is by way of appointment
from him to aft as his fubftitute.— In this cafe, therefore,
the option is veiled both in the party and in his fubftitute; andoomfequently
it is lawful for either of them to confirm or annul the contraft_
I f one of them Ihould confirm, and the other annul the contraft, in this
cafe the Jirjt of thefe afts which may have been performed becomès
valid. I f both Ihould have been performed at the fame time, then
(according to one tradition) the aft of the contrasting party is valid; —
or (according to another) the validity of the annulment is preferred to
that of the confirmation. T h e principle on which the firft tradition
proceeds is that the aft of the contrafting party is of fuperior force to
that of a fubftitute who derives his authority from him ; and the principle
on which the fécond tradition is founded is that annulment is of
fuperior force to confirmation, becaüfe annulment may take place
after confirmation, but confirmation cannot take place after annulment.
Some have aflerted that the firft tradition is conformable to
the doftrine of Mohammed, and the fécond to that of Aboo Toofaf\—
arguing from their different decifions in the cafe of an agent of fale and
his conftituent : for if both of them Ihould at the fame time fell .the
lame thing to different perfons, the fale o f the conftituent is’ valid, according
to Mohammed-,— whereas, according to Aboo Toofaf, .both dales
•are valid; but the article fold muft be divided between the two pur-
chafers.
I f a perfon fell two Ilaves for a thoufand dirms, ftipulating an Optional
condition with relpeft to one of them, the cafe admits1 of four
different ftatements.— I. Where the feller does not oppofe a fpecific
’price to each of the Haves, nor fpecify the one relpefting whom the
optional condition is to operate ; and this is illegal, becaufe of-the-un-
b certainty.
certainty both as to the fubjeft of the fale and the price; for as the
Have, concerning whom the condition of option is ftipulated, is not (as
it were) included in the fale, and as he is not fpecified, it follows that
the other, who. is the fubjeft of the fale, is alfo unknown.— II. Where
the feller fets a particular price upon each of the Haves, and alfo fpeci-
fies to which the condition of option relates; and this is valid, becaufe
of the certainty with refpeft to the fubjecl of the fale and the
price.
O b j e c t io n .— It would appear that the fale is in this cafe illegal;
becaufe the {lave who is the fubjeft of the condition is not, in effeft,
included in the fale; and as both are joined together in one declaration,
it follows that the acceptance of the fale with relation to what is not
the fubjeft of it, becomes a condition of the validity of the fale with
regard to what is ; it being the fame, in Ihort, as if a perfon Ihould
join a freeman and a flaye in one declaration of fale, which is illegal,
becaufe the acceptance of the fale with regard to what is not capable of
being the fubjeft of it (namely, the freeman) is here made a condition
of the validity of the fale with refpeft to the fla v e ; and this condition
is the caufe o f annulling the fale: it therefore follows that the fale is
in the fame manner invalid in the cafe in queftion, as the fame condition
(which occafions an annulment of the fale) is equally induced in
this iuftance.
R e p l y .— The fale, in the cafe in queftion, is lawful; becaufe,
although the acceptance of the fale, with refpeft to the flave concerning
whom the option is ftipulated, be a condition of the validity of
the fale with refpeft to the other flave alfo, ftill fuch condition does
not annul the fale, fince the optional Have is a fit fubjeft for fale: it is
therefore, in faft, the fame as if a perfon were to join a Modabbir and
an abfolute flave in one declaration; and as the fale is in that inftance
valid, fo alfo in the cafe in queftion:— contrary to where a feller joins
a flave and a freeman m one declaration; becaufe ^.freeman is not a fit
fubjeft of fale.
— III,