and both may
be returned
in cafe of a
condition of
option.
The heir of
the perfon endowed
with
an option of
determination
may return
one of
the two articles
refer-
ed to the
purchafer’s
option,in cafe
of his death.
Option is declared
and
the fale made
binding, by
any aft of the
purchafer in
relation to
the article
foki.
purchafe not having been made with refpeft to either o f the pieces,, it
follows that fale and truft operate indefinitely with refpeft to each.
If, befides the option of determination,, a conditional, option be;
allo ftipulated, the purchafer is in that cafe at liberty to return both,
pieces..
If a perfon. poflefling an option of determination Ihöuld die, his
heir is empowered to return one of the articles; for an option of determination
(as has been before explained) neceflarily defcetids to an.
hek, beeaufe of the implication-, of his property with that of another;:
whence he is not, in.his option- of. determination, reflrifted to three
days,— If, on the contrary,, a perfon recently poffeffed of a power of
opt ton die, his heir, has, no option, as was before explained *.
If a perfóm purchafe a houfe under a condition of option, and the
adjoining-.'Houle be afterwards fold 'before the expiration of the period.;
of option*, and' the purchafer under the condition of Option claim the
right of Shaffa* in this cafe his affent to the firfi fale is thereby virtually
given, and his right of Option, exifts no longer;-—beeaufe his
claim- of Shaffa prefuppofes him to be confirmed in the adjoining property,
otherwife he would have no right to make fuch a claim; and
it is therefore inferred, that he firfi: tacitly annuls his condition of option,
and then urges his claim.. It is to be obferved that the neceffity
of this explanation arifes from the doftrine of Haneefa-, for, by his
tenets, a purchafer under a condition of. option does not become proprietor
of the article o f file during the interim of option. The two s
difciples hold, on the contrary, that he becomes immediate proprietor
under the condition of option ; whence this explanation is, with regard,
to their doftrine, unneceffary.
* Beeaufe a condition o f option is not inheritable:.. (See p. 389.),
Ik two perfons purchafe a flave, on this condition, that both pur- g j j g g | |
■ Chafers lhall have the option | — him, and one of them after- H | g | *
wards exprefs his coiflent, the other cannot rqjeft him, according to pH U
Haneefa. The two difciples allege that if the other chufe, he may
rejeft his ffa re in the flave. T h e fame difagreement fubfifts with feqoentcon^
refpeft to two purchafers in a cafe of option o f infpeBkn or option from t0 tlle pur_
defeB. The argument of the two difciples is that as the power of chaCe‘
rejeftion was veiled in both the purchafers, it confequently operated
in each of them; and the rejeftion of one cannot abrogate the right.
o f option with refpeft to the other, as that would be a deftruftion of
his right, which is not lawful. T h e argument of Haneefa \s that the
fubjeft of the file, when it ifliied from the tenure of the feller, was
not injured by the defeft of participation', but if one of the purchafers
have the liberty of lejefting his portion- fingly, it neceflarily follows
that upon the rejeftion the feller holds the article in partnerfhip with
one of the purchafers ; and this is a defea in the tenure, to which he
was not before fubjeft.
O b j e c t i o n .— It would appear that the rejeftion of one of the
purchafers is valid although attended with an injury to the feller,
fince the feller has himfelf virtually aflented to it, beeaufe in giving
fuch power to two perfons, it is evident that he aflents to a poflible
rejeftion by one of them.
R e p l y . — The confent of the feller to the injury is inferred from
from a fuppofition of his having confented that -one might rejeft where
the power of rejeftion was given to two. This, however, is not the
cafe in the prefent inftance.; for it is to be fuppofed that the feller
underftood that both Ihould declare their rejeftion together-, and on,
Jhis fuppofition his -confent was given, not on the other.
If a perfon purchafe a flave on account of his being a feribe, or a
bakeri and he prove to be neither of thefe, the purchafer is in that dero* decafe
at liberty either to abide by the bargain, or to undo it, as he prove ;o be
pleafes; beeaufe the deferiptive quality being the ohjeft he had in
E e e 2 view,