or o f bees
(unlefs in a
hive, or with
the comb,)
or of illk-
worins.
is'common to all, where the objedt of the leflee is the deftruction
of it *.
. T he fale of bees is not lawful according to the two Elders. Mohammedis
of opinion that it is lawful, provided the bees be in a place
of cuftody-j-, and not wild j ; and fueh is alfo the opinion of Shafei ; '
becaufe a bee is an animal yielding good; and as we are permitted
by the l a w to enjoy the good which that creature yields, it follows
that the fale of the animal is permitted. The reafoning of the two
Elders is that, the animal being of an offenfive nature, the fale of it is
therefore unlawful, in the fame manner as in. the cafe'of waffs. Be^
tides, the good is derived from its produce, not from its fubfance±
whence no advantage can be-derived from it until the honey be
produced. If, however, the comb be fold, with the honey in it, and
the bees, the fale of the bees is in this cafe lawful, as- a dependant-
Koorokhee is alfo of this opinion.
I t is not lawful to fell ftlk-worms, according to Haneefa; as they
are animals of an offenfive nature. Aboo Tobfaf thinks that if the
filk have, appeared they may then lawfully be fold, as a dependant.
Mohammed’is o f opinion that the fale of them is lawful in any cafes,
* T h e objedt of a leafe is u fu frufi, or (in the language of the Mujfulman lawyers), a
dejiruóiion o f the produce o f the thing, but not o f the thing itfelf: thus if a petfon fhould take a
leafe o f a piece o f ground, or a fruit tree, he would be entitled to appropriate to himfelf the
produce o f the ground, whether grain or grafs, or the fruit that might grow upon the tree ;
but he would have no right to ufe the ground or the tree (the immediate fubje&s o f the
leafe) fo as to occafion any deftru&ion o f their fubftance. Hence proceeds the illegality
o f a leafe o f a field o f grafs, o f grain, o f the fruit o f a tree or the like ; for thé leafe in any
o f thefe cafes, would be entirely ufelefs, fince the leflee, being entitled only to the ufe o f the
produce o f the fubjedt o f the leafe, would not be entitled to the ufe o f any o f thefe which are
themfelves the immediate fubjedt o f the leafe.
f Such as a hive, or bee-houfe, J Literally, “ not in the a ir ”
as
Chap. V.
a s being an animal whence an advantage is derived. Haneefa is, of
opinion alfo, that the fale of their eggs is unlawful. The two di<-
ciples, on the contrary, are of opinion that fuch fale is lawful of
neceflity.i
T he fale of pigeons, of which the number is afcertained, and the-
delivery practicable, is lawful, as in fuch eircumftances they conftitute
property.
I t is not lawful to fell an abfconded Have, becaufe the prophet
has prohibited this; and. alfo, becaufe the delivery is impracticable.
If, however, the purchafer fhould declare that “ the fugitive is in
“ his poffeflion,” the tale is lawful, becaufe the obttaclc on which
the prohibition is founded is in this cafe removed.— It is to be obferved
that if the purchafer, in this inftance, Ihould'have declared, before
witneffes, that “ he had taken poffeffion of this Have with intent to '
“ reftore him to his owner,” he is not held, on the conclufion of the-
contract, to become feized of him in virtue thereof ; becaufe the
former feizin, being in the nature of a trujl, cannot Hand in the room
of that made on account of purchafe. If, on the other hand, he.
fhould have 'made no fuch declaration, in that cafe he is held to be,
feized o f the {lave, in virtue of the fale, immediately on the .conclufion
of the contraft; becaufe the former feizin, being in the nature o f
an ufurpation, may therefore hand in the room of a feizin for fale ; for
both are the fame in effeft,' as they both equally induce refponfibi-
lity. If the Have fhould have eloped to fome other perfon, and the
purchafer fay to the proprietor “ fell me your flave who has run
“ away to fuch an one,” and the feller accordingly agree, the fale is
in that cafe alfo unlawful, becaufe of the. impracticability of the
delivery.
If a perfon, having fold a fugitive flave, fhould after the fale re-
cover him, and deliver him to the purchafer, the fale is neverthelefs
unlawful.
The fale o f
lame pigeons
is valid.
The fale of
an abfconded'
flave is invalid,
(unlefs-
he be in the
hands o f the
pu-rchafer,)
although thfr
feller Ihould
afterwards
recover and