or the date of
the occurrence
of
which, is uncertain
:
(but it is valid
where the
time of payment
is fixed
by a fubfe-
quent agreement.)
A fale, invalid
in confe-
quenceof fli-
pulating an
uncertain time
o f payment,
recovers its
validity by
the removal
o f the uncertainty.
however, is lawful, if thefe periods- be afeertained within the knowledge
of both parties. ,
A s a l e is not valid where the price is ftipulated to be paid on the
return of the pilgrims, or, on the cutting of the grain, or on the-
gatheringof the grapes,- or on the {hearing of the Iheep,— becaufe in
none of thefe cafes is the period abfolutely determinate: contrary to
the aft of giving, bail; for the giving of bail, until any of thefe periods,
is lawful; becaufe a jmall degree of uncertainty does not invalidate
a bail-bond, in the. fame manner as it does a contraft of fale.—
If, however, a fale be made in an abfolute manner, and the feller afterwards
agree to receive the price at any of the periods in queftion, it
is lawful, becaufe, this ftipulation not being included in the contraft
of fale, it becomes a flipulation with regard to payment o f d e b t , (not
the price) which admits of a fmall degree of uncertainty.
If a fale be made, ftipulating payment of the price at any ,of the
periods above Hated, and afterwards the purchafer and feller jointly,
or the purchafer alone, remove the obftacle of uncertainty * , prior to
the aftual occurrence of the period ftipulated, the fale then becomes
valid. Ziffer maintains that-, the fale being originally invalid, the
fubfequent removal of the obftacle cannot render it valid;, in the
fame manner as a marriage originally contrafted for a fixed period
would not become valid by rendering it perpetual-. The- argument of
our doftors is, that the invalidity of. the fale, in this.cafe, is merely
becaufe of the apprehenfion of the litigation, to which the uncertainty
may give rife; and of courfe, when this uncertainty is removed, the
fale remains valid. Moreover, as the uncertainty, in this cafe; relates
only to an accidental circumflance, that is, to the period when
the price is to be paid, and'not to the price itfelj, which is one of the
* By paying the p rice, or fixing the time of payment to fome fpecific period, fuch as-
forty days for inftance.
effentials
effentials of fale, the uncertainty - is capable of being removed., It is
.otherwife where a perfon fells-one Ä r a for two dirms-, and afterwards
-relinquifliës the additional dirm t, for the fale does not in con-
fequence óf fuch relinquifliment become valid, fince the invalidity
related to th e. price itfelf which is an effeiitial of the fale. It is alfo
otherwife in a Cafe of marriage for a particular period, becaufe this, in
ffaft, is not à marriage, but a-feparate deed called Matât * , and by no
fubfequent afts can one deed be'tranfmitted into another deed.
If a perfon expofe to falea freeman an.d a Have, and fell them both “ ofa
in one contraft,— or, in the fame manner, fell a carrion goat f , and
one that has been (lain by the prefcribed form o ï Zibbjy, fuch fale, vai{^;
.according to Haweefa, is utterly invalid with relpeft both to the freeman
and the flave, as in the firfl cafe, and thé.carrion, and {lain goat,
as in theféconde— and this, whither the feller have oppofed a fpecific
price to each -or not : (the two difciples are öf opinion that if a fpecific
price be oppofed to'each, the fale is valid with refpeft to th e flave, S H I
or the fa in goat.) If, on the contrary, a perfon unite in fale, an abfo- ,jea be prolate
flave and- a Modabbir, or a flave that is his property, and another
that is not, the fale is. in either cafe lawful, with refpeft to the abfo- I S H
lute flave, or the Have which is his property, in return for a propor- fubjeâ.
tion from’ the whole price ftipulated. This Is, according to our doctors,
(namely, Haneefa and the two difciples.)— Ziffer is of opinion
that’the fale is not lawful in either cafe, with refpeft'to either fubjeft.
T h e two difciples argue, that'where a fpecific price is oppofed to each
particular fubjeft, the invalidity of the fale extends only to that fubjeft
which contains a caufe of invalidity, (namely, the freeman br the
carrion) but does not reach to the other -fubjefts, (namely, the flave
or the {lain goat;)— in the fame manner as where a perfon marries a
{trail °:e woman and his own lifter by one conti aft, in which cafe the
marriage is valid with refpeft to the ftranger, although it be invalid
■|. Meaning any dead goat, not flain according to l a w .
M ril m 2 with
* See Vol. I . p. 9 1 .