The fale is
null o f filh, in
.the water,
or of a bird
in the air,
or o f a foetus
in the womb,
(or its offer
in g ,)
and as a Modabbir or Am-Walid are not in-reality fit fubjeCts of fale,
they are therefore confidered in the fame light with a Mokatib. In
reply to what the two difciples-urge it may be obferved, that an Am-
Jf'ahd or Modabbir are not. included in a (ale for the fake of their per-
fons, but only in order, that the effeCt of fale may be eftablifhed with
refpecE to fuch articles-'as may have been united with them in the
contract; in the'.fame manner as where property of the purcb.afer
happens to be involved in the contract;— in other words, if a perfon
purchafe two.'■ Haves by one contract, and one of thofe (laves happen
to be-his property, fuch (lave is neverthelefs included in the con-,
tradt,— not indeed for the lake of his perfon, but merely in order that
the effeCt of the fale may extend to the other (lave, who is united
.with.him in it.
T he fale of fifh which is not yet caught is null, as, it is not in
that (late property.— In the fame manner alfo, the fale of a fi(h
which the vender may have caught, and afterwards thrown into a
large fountain from which it cannot be taken without difficulty, is
null, becaufe there the delivery is impracticable. (It is lawful, however,
in cafe the fountain be (o fmall as to admit its beino» cauoght
with eafe.)— If fi(h (hould o f themfelves come into a fountain without
the proprietor’ s having taken any means, by the ereCtion of a
dam, or the like, to prevent their egrefs,' they are not confidered as
property, and the (ale of them is therefore null. .
T he fale o f a bird in the air, or of one which after having been
caught is again fet at liberty, is null ; becaufe in the one cafe it is not
property, and in the other the delivery is rendered impracticable.
T he fale of a foetus in the womb, or of the offspring of thatfoetus,
is null ; becaufe the prophet has prohibited it ; and alfo, becaufe
there is a probability of fraud, from there being a want of certainty
in the cafe.
T he
T he fale of milk in the udder is null; becaufe there is a poffibi-
lity of fraud, in the udder’s being perhaps void of milk, and full of
wind; or, becaufe there might arife a contention with refpefit to the
mode of extracting the milk ; or becaufe it might happen that the
udder contained more milk at the time of extracting it than at the
time of fale; and hence there might be implicated in the fale fome-
thing not properly the fubjeCt of it.
T he fale of wool or hair growing Upon an animal is null; becaufe,
whilft joined to the animal, it is confidered as a conflituent
part of i t ; and alfo, becaufe it cannot be exactly cut away from the
animal, without either leaving a part of it or taking away part of the
fkin, fince it is not practicable to pull it out. It is, moreover, recorded
in the M ail Saheeh, that “ the prophet prohibited the fale of
“ wool upon the animal, of milk in the udder, and of butter in the
“ milk*,” It is recorded of Aboo Toofaf, that he admitted the legality
of the fale of growing wool: but to this the above tradition is
an anfwer.
I t - is not lawful -}- to fell a piece of wood fuftaining a weight,
fuch as a pillar or z beam, although the piece of wood be fpecified and
determinate.. Neither is it lawful to fell a yard from a piece of cloth
which is fewed, whether the parties fpecify that the yard (hall be cut
off from it or not; becaufe in this cafe a delivery without injury is
impracticable. It is otherwife where a perfon agrees to fell ten drams
(for inftance,) from an ingot of filver, for thefe may be cut off from
the ingot without injury to it. It is to be obferved, however, that
if the feller, before the diflolution of the contract, fhould cut off the'
* T h a t is, before it has been extra&ed b y churning.'
t B y the phrafe “ it is not,lawful? is h e r e (and in the following examples) to be un-
derftood, « it is invalid
"Vol, II. K. k k yard
or o f milk in
the udder,
or o f hair (or
wool) upon an
animal.
The fale is
invalid, o f
any article
which cannot
be feparated
from its fitua-
tion without
injury.