The purchafer
o f a law ful
article in return
for one
which, is unlaw
ful, may
after poflef-
fion difpofe
o f it as he fees
fit; remaining
refpon-
fible only for
the 'value.
The feller
cannot refume
the article
until he.
return the
purchafe-mo-
n ey:
and i f the
feller die, the
purchafer is
entitled to fet
up the article
to fale, to indemnify
him-
fe lf for the
price he has
paid.
equal to It in point of legality; and has not been forfeited by any
power given by him to the purchafer to make the fale.
If a perfon purchafe and take poffeflion of a {lave, in exchange
for wine, or a hog, and afterwards either emancipate him,
fell him, orbeftow him in gift, all of thefe a£ts are valid, becaufe of
the purchafer, in virtue of the feizin, having become proprietor; and
he is refponfible to the feller for the value of the Have. In the cafe
of emancipation, as the property immediately ceafes, the Have becomes
(as it were) dejiroyed, and hence proceeds the réfponfibility of the
purchafer for the value. In the cafe offale or g ift, the - réfponfibility
arifes. from the right of returning him to the teller being annulled in
confequence of thefe deeds, as has been already explained. It is to be
obferved that pawnage, or the making a Have a Mokatib.i, is equivalent
to fale, and therefore annuls the right of return to the feller.r The
redemption of the pledge, however, or the inability .of the Mokatib
to perform his covenant, reftores -the right, becaufe the bar to its
operation is removed.
In an invalid fale, the feller is not allowed to refume the goods
from the purchafer, until he Ihall have firft reftored the purchafe-
money; becaufe the goods, being oppofed to the purchafe-money,
are retained in thé nature of a pledge until the reftitution of it. If
the feller lhould die, then the purchafer has a prior claim to the fub-
je£t of fale; that is, he is permitted to take payment of the price
from the fale of the goods, giving the remainder (if there be any) to
the other claimants; becaufe, as he has a right in the goods fuperior
to any other perfon, during the lifetime of the feller, he confequently
has a right preferably to the feller’ s heirs or creditors after his de-
ceafe; in the fame manner as the holder of a pawn. It is to be ob-
feryed, that if the price was paid in dirms, the purchafer has a right
to exaft from the feller the identical dirms he paid him; fince the
purchafe-money, in the cafe of an invalid fale, remains in the hands
of
of the feller in the nature of an ufurpation. If, however, the identical
dirms be not in his poffeflion, then the purchafer is entitled to an
equivalent.
If a perfon purchafe a houfe by an invalid fale, and afterwards
convert it into a mofque, he is in that cafe refponfible, according to
Haneefa, for the value of the houfe. This is alfo related by Aboo
Toofaf, in the Jama Sagheer, as the opinion of Haneefa: but he afterwards
entertained doubts refpe&ing it. T h e two difciples maintain
that the houfe muft be reftored to its original ftate, and then returned
to the feller.— The fame difference of opinion obtains, if the purchafer
ftiould plant trees in the court-yard of the houfe. The argument
of the two difciples is that the right of the neighbour * is of
Cafe o f an
immoveable
property; in
which a
change is
■ wrought by a
purchafer under
weaker conlideration than the right of the feller-,— (whence it; is that
the right of a neighbour requires to be fupported by a decree of the
Kdzee, and alfo, that it becomes null, by any delay in the demand of
it,— neither of which is the cafe with refpedt to a fe lle r s right;) and
as the right of the neighbour, which is the weaker right, would not
be annulled by the converfion of the houfe into a mofque, it follows
that the right of the feller, which is the Jlronger, is not thereby annulled
a fortiori. T h e argument of Haneefa is., that the a£t of building
or planting proceeds on an idea of perpetual pofleflion; that the
purchafer in fo doing adts in virtue of a power to that effedt which he
holds from the feller; and that therefore the feller.has no right to the
reftitution, in the fame manner as. in the cafe of its being refold by
the purchafer. It is otherwife with the right of a neighbour, as he
does not give power to the purchafer to build or plant on the place
over which his right extends ; whence it is that if the purchafer had
either bellowed it in a gift, or fold it, his right of neighbourhood
would neverthelefs ftill have remained in force. Aboo Toofcf, who
reported what is here advanced as the opinion of Haneefa on this fob-
an invalid
contract.
* Arab. Shaffee-y meaning the perfon entitled to the right o f pre-emption in virtue o f
Shajffa,
V ol. II. "N n n - ' jedt,