iwheat In exchange for wheat, for inftance,) the interchange upon
the fpot is not a condition, it being only required that the article be
fpecific. Shafe'i maintains that in the .fale of wheat for wheat mutual
feizin is a condition, becaufe of the ordinance-of the prophet,
“ Sell it.from hand to h a n d and alfo becaufe, if one party fhould
make feizin, and not the other, it follows that an appearance of ufury
takes place, inafmuch as prompt payment is fuperior to future: payment.
Our dodtors argue that wheat, as being a determinate fubjedt
of fale, does not, like cloth, ftand in need of feizin, fmce the objedtof
the contradt is the attainment of a power over the article, which is
fully eftabhfhed by its being determinate. It is otherwife with refpedt
to S ir f fales, for there the feizin is made a condition in order that
the price and fubjedt of the fale may he rendered determinate, which
is only to be effedted by . means of feizin. With refpedt to the ordinance
of the prophet, enjoining the fale from hand to hand, Obadah
Bin Sdmat, has explained it to mean the fale of one determinate thing
in exchange for another. Befides, on the poftponement of the feizin,
no loft is .reckoned to refult, in the opinion of man k ind contra ry to
where, a prompt a,nd future payment is flipulated; becaufe the latter
in .the opinion of mankind is -a detriment.
Similars T he fale of one egg in exchange for two eggs, from hand to hand,
a be fold ° 00 7
fbr^each is lawful; and the fame with refpedt to dates and walnuts ; becaufe
ou^inducin thefe .ar-tieles are neither fubjedt to meafurement of capacity or weight,
ufury. with regard to which only ufury relates. Shafe'i, in this cafe, differs
from our doctors; becaufe ufury, according to his opinion, relates to
articles of an efculent nature, of which, kind thefe are.
nomkepiace T he fale of one fpecific Faloos*, in exchange for two other fpe-
withrefped cific Faloos, is valid, according to Hanecfa. Mohammed maintains it
to Faloos, as . . . ,
they are ar- to be unlawful; becauie, as the ntnels to conftitute price is eitabmhed
tides of fale-.
m
A copper coin. (See V o l. I I . p. 305. J
in Faloos, with the confent o f mankind, it cannot he annulled by any
aoreement of a feller and purchafer counter thereto; and as the fitheft
to conftitute price flill continues, the Faloos cannot be rendered determinate
by means of a ftipulation to that effect in the contradt. The
cafe; therefore; becomes the fame as i f a perfon. fhould fell-one undeterminate
Faloos in exchange for two undeterminateS—or, as-if a perfoti
fhould fell one ‘dirm in exchange for two. '• The reafoning of the
two difciples is. that this fitnefs to conftitute price in Faloos cannot
fubfift with'relation to a buyer and feller, unlefs by their mutual agreement
to that effedt * ; and, confequently, where they agree to the
contrary, the fitnefs to reprefent price is, with refpedt to them, null;
nor. can the general confent of others, to admit Faloos as a reprefenfa-
t i v e of price,, operate-as an argument with, refpeft to them, fines in '
this matter others have no power over them. Hence it follows that;
as the fitnefs to conftitute price is, with refpedt to them, null, the
Faloos may be identified by their fpecifieation.
O b j e c t i o n ,.— Upon, the fitnefs. to.-conftitute price being'done
away by the agreement of the parties, t*he Faloos- will ofoonlequence
revert to their primary nature, namely weight, (for, the Faloos was
orio-inally a weight.)— It would therefore follow that the fide of one’
Faloos. for two Faloos is not valid, although the fitnefs to conftitute
price be done away by the agreement of the contradting parties.
R e p l y ,.— The Faloos do n o t revert to their original nature, becaufe,
by the agreement, of mankind, they are confidered as articles
of tale, and this agreement remains in force. Hence they ftand in
the fame predicament as walnuts, or other articles of tale, and the
unequal fale of them is of .confequence in the fame manner lawful.—
It is otherwife. with refpedt to dirms and deenars, becaufe thefe naturally
conftitute price.— It is alfo otherwife with refpedt to the fale
of one undeterminate Faloos in, exchange for two undeterminate Ez-
* T h a t is to fay , copper coins are not to be confidered as fr ie s b u t b y a previous
agreement o f the parties. ,