If the article
be damaged
by an accident
not proceeding
from
the feller, ftill
it is a proper
iubjeft of
Moorabihat.
A miftate-
ment o f a
prompt payment
inftead
o f a fufpended
payment,
•leaves it in
power of the
purchafer to
undo the bargain
in a
fale either of
projit
here' the purchafer, (or another,) did with defign or intention deftroy
the eye; and it is confequently requifite that a proportionable deduction
be made for a defedt fo occalioned, The fame rule alfo obtains
where a purchafer has cohabitation with a female have who is a
virgin; becaufe virginity, being merely a tender membrane,is a confti-
tuent part of the Have, and this the purchafer has deftroyed.
If cloth which a perfon had purchafed be burnt by fire, or damaged
by vermin, in that cafe it is lawful for the purchafer todifpofe of it by
Moorabihat without explaining either of thefe circumftances: but if
the cloth be tom in the folding and opening of it, it is not lawful for the
purchafer thus to difpofe of it without noticing the fame to the
party, becaufe the damage, in this cafe, is occalioned by his own
deed.
If a perfon, having purchafed a /lave (for inftance) for one thou-
fand dirms, payable at a future period, fhould afterwards fell him for
one thoufand dirms, payable immediately, with a profit of one hundred
dirms, without noticing to the other the refpite of payment he him-
felfhas obtained,— in that cafe the other, if he fhould afterwards discover
this circumftance, is at liberty either to abide by or undo the
bargain' at his option; becaufe the fufpenfion of the payment re-
fembles an addition to the fubftance of the wares ; and hence it is a
cuftom amongft merchants, in granting a refpite of payment, to in-
creafe the price of the merchandife. Now a feniblance, in a fale by
profit, is deemed equivalent to reality ; and hence it follows that the
faid perfon did, as it were, purchafe two things for one thoufand
dirms, namely, a Have and a fufpenfion of payment; and afterwards
fold only one of thefe things by way of profit, grounded on the price
which he paid, for both; a fraud from which an abftinence is particularly
enjoined in cafes of Moordbihat:—-the purchafer, therefore,
has an option of adhering to or undoing the bargain as he pleafes, as
in the option from defedt. If, however, the purchafer fhould deftroy
the
m
C h a p .. VIE S' A L E'. m
the wares, and then receive notice of the fraud which had been prac-
tifed upon him, he is not in fuch cafe entitled to make any deduction
on that account from the price,- becaufe no part of the price is in. reality
oppofed to the fufpenfion of payment.
If a perfon, having purchafed a Jlave (for inftance) for a thouland' or offrimd-
dirms, payable at a future period, fhould afterwards difpofe of him to
another, by a Tawleeat, for a thoufand dirms ready money, without
intimating the refpite of payment,, in that cafe the other, on dif-
eovery of this circumftance, is at liberty either to abide by, or annul
the contract, as he pleafes; becaufe an abftinence from a fraud of this-
nature is equally enjoined in friendly as in profitable fales.-—If,, however,
in this cafe, the purchafer, having deftroyed the flave, fhould
then become acquainted with the fufpenfion of payment that had been
granted to the feller, it is incumbent on him to make a prompt pay-f
ment, according to the agreement; nor is he entitled to make any
deduction from the price on the fcore of fufpenfion of payment, as
before explained.— It is related, as an opinion of fiboo Toofaf, that the.
purchafer is in this cafe to pay the value to the-feller, and to receive
from him the whole of the price; in the fame manner as holds (according
to him) in a cafe where a creditor, having received payment
of the debt due to him in a bad fpecie, difcovers this circumftance
after having expended them;— in which cafe he has a right to return
to the debtor a fimilar number of the fpecie he had received,, and to
demand from him a like number of good fpecie.— Some have faid that
an appraifement ought to be made of the value in the- cafe of prompt
payment, and alfo in the cafe of a dijlant payment; and that the difference
fhould be given by the feller to the purchafer.— All that has-
been here advanced proceeds on a fuppolition of the fufpenfion of the
payment being included in the contrail: of fale; for if, without fuch.
ftipulation, it Ihould happen that the payment be made at a dijlant
period, (as is often the cafe amongft merchants,) there fubfifts, in
fuch cafe, a difference of opinion upon this point, whether, under
,, thefe;