of it, may now lawfully declare it to have been the quantity excepted
by the third perfon.— If, on the other hand, aperfon, having claimed
the whole of a houfe, fhould then compound with the p'ofleflor for an
hundred dirms, and another perfon fhould afterwards lay claim to pact
o f the houfe, in that cafe the pofleffor of the houfe is entitled to a
reftitution of a part of the fum he had paid in compofition, proportionate
to the amount of the fecond claim.— It is to be obferved
that a compofition of an undefined right for defined property is
lawful, becaufe the annulment of an undefined right cannot occafion
contention.
S E C T I O N.
O f F a z o o l e e Bee a , or the Sale o f the Property o f another without
hi's Confent.
A fale contracted
without
authority
may be dif-
folved by the
proprietor of
the fubjedl.
If a perfon fell the property of another without his order, the
contradl is complete, but it remains with the proprietor either to
confirm or diflolve the fale as he pleafes. Shafe'i is of opinion that
the contradl, in this cafe, is not completebecaufe it has not iffued
from a lawful authority; for that is conftituted only by property or
permijjion, neither of which exift in this cafe. The arguments o f our
dodlors are, that fuch a fale is a tranfadlion of transfer, performed by
a competent perfon with refpedl to a fit fubjedl it is therefore indifi-
penfable that the contradt be regarded as complete ; for, befides that
there is no injury in this to the proprietor, (as he has the power of
diflolving it,) it is attended with a great advantage to him, inafmuch
as it frees him from the trouble of feeking for a purchafer,, fettling the
price with him, and other matters.— Moreover, it is attended with
an
an advantage to the feller, whofe word it preferves facred, and to the
purchafer, to whom it confirms a bargain, with which, as having
voluntarily concluded it, he may be fuppofed to be pleafed.— In.order,
therefore, to obtain thefe advantages, a legal power is eftablilhed in
the feller of another’s property, more efpecially as the confent of that
other has been given, by implication, fincea wife man naturally affents
to a deed attended with advantage to- himfelf.— It is to be obferved
that it is requifite. that the proprietor give his. confent on the condition
of the fubjedl of the fale, and the buyer and feller being extant y ber *
caufe, as his aflent is a deed relative to the contradl, it is neceflary, of
confequence, when he gives, it, that the contradl be in exiftence;
and the exiftence of the contradl depends.on. the exiftence of the parties,
and of the fubjedl of the lale.
W hen the proprietor of an article, in a Fazoolee fale, gives his af-
fent to it, the price becomes his property, and remains in the hands
of the Fazoolee feller as a depofit, in the fame manner as if he had been
an agent for fale; becaufe the aflent is equivalent to a previous appointment
of agency.
I f aflented to,
the price is
the property
o f the.proprietor,
and
a depofit with
the Fazoolee.
feller l
It is in the power of the Fazoolee,. or perfon. who fells the pro- who is at liberty
of another without authority, to diflolve the contradl without difloIve°thc
having: obtained the confent of the proprietor. It is otherwife in the c0.",traa,. D 1 1 without his
cafe of a marriage contradled by a Fazoolee, as that cannot be. dif- concurrence,
folved without the confent of the perfon on whofe account he concluded
it.
It is to be obferved that the exiftence oFthe parties, and of the-
fubjedl of the lale, is fufficient towards the confent of the proprietor
only in cafe of the price being in money; for, if it be ftipulated in goods,
then the exiftence of the price alfo is a neceflary condition.— In this
cafe, however, the confent of the proprietor is not an aflent to the
contradl of fale, (becaufe the fale is, in this inftance, a fort of pur-
i. chafe,
f