The fale of a
Modabbir, an
Am-Walt d, or
a Mokdtib is
Hull;
prohibited all regard to them among Mujfulmans, Now, a Mujful-
man’s purchafing either of thefe for fpecie implies a regard to them,
becaufe it is not money (which conftitutes the price) that is the object
of the fale, as it is merely the inftrument .of acquiring, the objedt; ■
for in fadt it is only the wine or pork that is.the objedt; and as thefe
articles are not appreciable with refpedt to Mujfulmans, it follows that
the iale of them is null. It is otherwife if a Mujfulman purchafe cloth
for pork or wine, becaufe that can admit of no other conllrudtion
tlian that he regards the doth as the objedt of the, tranfadtion, confi-
dering the pork or the wine only as the means of attaining filch objedt,
and not (as in the other cafe) as the objedt itfelf. The fpecifi-
cation of the pork or wine,, therefore,; Is regarded merely that the
purchafer may become the proprietor of the cloth, and not in order
that the feller may become proprietor of the wine or pork ; and hence
the mention of thofe articles is invalid, and the payment of the price
o f the cloth, and not the delivery of th oflejh or. liquor, is incumbent
bn the purchafer;—{and fo alfo, where a perfon fells wine or pork
for cloth;) for, as cloth is a faleable article, the cloth mull, in this
inftance, be confidered as the fubjedt of the dale ; for which reafon
this is an invalid and not a null fale ; becaufe where, in a contrail of
fale, the fubject on both fides confifts of fomething elfe than money,
either may with equal propriety be confidered as the fubject of the
fale. (This fpecies of fale is termed a Bceya Mookdyeza, or barter.")
T he fale of an Am-Walid, a Modabbir, or Mokdtib, is null;-_
becaufe an Am-Walid has a claim to freedom, as the prophet has faid,
“ Her child hathfet her fr e e ,* " (that is, her child is a caufe of freedom
to her;)— and the caufe of freedom, with refpedt to a Modabbir,
is not eflablifhed upon the deceafe o f his owner, but mult be confidered
as »dually extant in him at prefent, as the owner is incapable of
emancipating him after his deceafe;— and a Mokdtib, on the other
* See V o !. I. p .4 7 9 .
hand,
hand, is poffefled of his own perfon as a right eflablifhed in him,
and binding upon his owner, infomuch that the owner cannot of
himfelf break or infringe upon it:— if, therefore, the fale of;any of .
thefe were valid, that which is eflablifhed in them would be rendered
null;— hence the fale of them is null.— Refpedinga cafe where a
Mokdtib himfelf acquiefces in being fold, there are two opinions recorded.
According to the Zahir Rawdyet, the fale in: fuch cafe is
valid. ' It is to be obferved that by a Modabbir is here meant fuch as
is abfolutely fo, and not one whofe condition of freedom is reflrtdted
to the non-recovery of his mailer from the illnefs under which he
laboured at the time of granting the tadbeer *.
Tv after the fale of an Am-Walid or Modabbir, and the feizin of and 'he pur-
the purchafer, one or other fhould die, in this cale, according to Ha- refponfible if
neefa, the purchafer is not refponfiblef- According to the two dif-
ciples he is refponfible for the value:— (and there is one tradition
which reports that Hanefa coincides with them on this point.)—
Th e reafoning of the two difciples is, that as the purchafer took pof-
feflion of the Modabbir or Am-Walid in virtue of a fale, he is therefore
refponfible for the lofs; in the fame manner as for the lofs of any
other property after purchafe and feizin;— for this reafon, that an
Am-Walid or Modabbir may be included } in a contraft of fale;
whence it is that any article united with them in a contract of fale
becomes the aftual property of the purchafer. It is otherwife with
refpedt to a Mokdtib, as the purchafer is .not refponfible for the lofs of
him, becaufe, being poffefled of his own perfon, the purchafer’ s feizin
of him is not fully eflablifhed; and the refponfibility attaches in virtue
of the feizin. The argument of Haneefa is, that actual fale cannot
operate with refpedt to what is not in reality a fit fubjedt of it ;
* Se« V o l. I . p. 477.
4 T h a t is, the lofs is confidered as felling upon the filler, and not upon the purchafer.
1 T h a t is, “ may he joined with other articles.”
and