44« S A L E. Book XVI.
fold or ran” ^oes the animal, as thefe articles are not poflefled of life._It is to be
verted to ufo. obferved that Mohammed, confidering an elephant as e[fential filth , like
a hog, holds the fale of it to be unlawful:— but the two difciples,. con-
iidering it in the nature o f a wild animal, regard the fale of it, or of the
tones of it, as lawful.
^ tffo i“ ' . 1 1 in a lloul"er ° f which the upper and under apartments belong to
unlefs it ia- different perfbns, the whole, or the upper jlory only, fhould fall
volvepropcrty. downj % tjjat cafe the pr0priet0r Gf tjje upper ft0ry is not permitted
to fell his right, (namely, the right of building another upper
ftory,) becaufe this, as being only a right, is not property. '
O b j e c t io n .— It would hence appear that the fale of a right to
water * (that is, of a fhare in water ufed in tillage) is not lawful, as
it is not thettWa's property, but merely his right; whereas fuch a file is
allowed, i f made along with the land, according to all authorities;
and according to one tradition (which has been adopted by the Sheikhs
of BalkE) the fale of the right to water by itfe lfh lawful.
R e p l y .— The fale of a right to water is valid, becaufe the term
Shirb means a Jhare in water ; and that is an exiftent article, and in
the nature of property;— whence it is that if a perfon, in a cafe where
it is enjoyed by rotation, fhould' deftroy it during the term of his rfiht,
he is refponfihle for the value of it;— and alfo, that, when it is fold
along with the ground, a part of the price is oppofed to the right to
water.
Any thing IF a perfon beftow or fell a road f it is lawful: but neither the fale flisy dc iold • /■ * # ^
which admits ^ water-courfe is valid. Thefe cafes admit of two fupoiifnci/
c politions. I. T h e file may be of the abfolute right to the road or
* Arab. Shirb. T h is term properly fignifies draw-wells dug for the purpofe o f watering
lands, and the right to the ufe o f which is transferable, in the fame manner as any
other property. . ..
t B y a road is here meant a lane or narrow paflage leading into a flreet or high-road.
water-courfe,
water-courfe, without defining the length or breadth of either.— II. It
may be of the right of palling upon the road, *or receiving the benefit
of the water — Upon the fir jl fuppofition, the difference between the
two cafes is that the road is certain and afeertained, becaufe the
known breadth of it is equal to that of a door-way.:— but in the cafe of
a water-courfe there is an uncertainty, becaufe it is not known how
much ground the water covers.1— Upon the fécond fuppofition, there
are two traditions with refpedt to a file of a right of .paflage on the
road:—according to one tradition the file is lawful; aiid according to
another it is invalid.— The difference between the file óf a right of
paflage on the road, and a right of benefit from'the water, (as inferred
from the firfl: tradition,) is that a right’ofpajfage is a point which admits
of being precifely afeertained, as, it is connedled with a known
objedt, namely, the road-, whereas the right of benefit from the water
is of a nature which cannot admit of being precifely afeertained,—and
this, whether the water be conveyed in a trough fupported upon a
wooden frame; or in a trench ,cut in the ground.
If a perfon -fell a Have as a female, who afterwards proves to be a
male, in that cafe the file is utterly null.— It is otherwife where a
perfon fells a goat (for inftance) as a male, .and it afterwards proves to
be a female ; for in that cafe the contradf of fale is complete : the pur-
chafer, however, has the option of keeping the animal, or rejedting
it. The difference between thefe two cafes is founded on this general
rule.,— that wherever denomination and pointed.reference are united, by
the feller pointing to the fubjedt of the file, and mentioning its name,
(as if a perfon fhould fay “ I havé fold this gear, for inftance,)— in
this cafe, if the article referred to prove efl'entially different from what
was mentioned, the file is fuppofed to relate to the article named ;
and therefore if the article referred to prove of a different fpecies from
what was named, the file is null.— If, on the other hand, the article
' * Literally, caujing the water to run, (b y opening a fluicc, or fo forth.)
VoL. II.
aftertainment:
but not other-
wife.
A deception
with refpedt
to the fex invalidates
the
fale in Jlawes#
but not in.
brutes•
L 11 referred