5fz Book XVI,
The fine incurred
for
maiming a
flave fold
under a ufur-
pation goes to
the purchafer',
if the former
proprietor
aflent to fuch
fale.
S A L E .
emancipatc5 a Have belonging to tlic deceafed, at a tunc when the
eftate was encumbered with debt,— in which cafe the emancipation
remains fufpended in its operation until the debts be liquidated, when
it immediately takes place. It is otherwife where ah ufurper, having
emancipated the flave he had ufurped, afterwards makes a compofition
with the proprietor; becaufe ufurpation does not entitle to the enjoyment
of property:— or, where a purchafer of a flave, under a fale
ftipulating a condition of option to the feller, emancipates the faid
flave; becaufe in that cafe the fale is not abfolute, and the exiftence of
the option is preventive of the operation of the right of property in
the p u r c h a fe ro r , laftly, where a perfon, having purchafed a flave
from an ufurper, fells him to another, and afterwards the original
proprietor gives his affent to the fale of the ufurper; becaufe in virtue
of the affent of the proprietor the right of property vefts in the purchafer,
upon fuch affent being fignified, but not before: the right of*
property, moreover, of the fecond purchafer was fufpended', and consequently,
as the right of property vefts in the firft purchafer now
(and not before,) it neceffarily follows that fuch fufpended right of
property becomes null.
If a perfon purchafe a flave from one who had, ufurped him,
and the flave be maimed * by any perfon whilft in the poffefiion of
the purchafer, and he [the purchafer] excel the fine of tiefpafs, from
the maimer, and the original proprietor then give his aflent to the
fale,— in this cafe the fine is the property of the purchafer; becaufe
the flave is in fuch cafe confidered as the property of the purchafer,
from the period of the purchafe, whence it is evident that he was fo
at the time of the maiming: and this is an argument againft the
doarine of Mohammed, exhibited in the preceding cafe, fince as the
fine, is, in this inftance, the right of the purchafer folely in virtue of
the eftablifhment of right of property in him from the period of the
purchafe,
By difmemberment of a iimh, fuch as the hand.
C h a p . X; S A L E. 51
purchafe, it follows that the emancipation of the purchafer would be-
valid for the fame reafon. The reply of Mohammed to this is, that a
ri°ht of property eftablifhed in one fhape only (that is, in an incomplete
manner) .is fufficient to entitle to a fine, but not to the
performance of emancipation, which requires that the right o f property
be perfeEl and complete. It is to be obferved that although the
fine, in this cafe, be the right of the purchafer, ftill if it exceed the
half of the price, it is requifite that he beftow the excels in charity;
becaufe the fine for the deft ruction of the limb cannot exceed half,
the- price, as the fine o f trefpafs for maiming afreeman is one half of
th® fine o f blood, and confequently, the fine for maiming a flave is one
half of his value. Now nothing can be included in the refponfibility
beyond what may be oppofed to the price, and implicated in it. Any
excefs,]therefore,' over half the price, is an acquifition to which the
proprietor is not entitled, or to which his claim is doubtful, and is
therefore not perfectly lawful to him.
If a perfon purchafe an ufurped Have, and fell him to another, and the
proprietor afterwards give his affent to the firft fale, in that cafe the
fecond fale is invalid; becaufe the right of property then eftablifhed
in thej.'firft purchafer deftroys the fufpended right of property of
the fecond purchafer, as has been already explained; and alfo, becaufe
there is an unfaifnefs in it, fince it is poffible that the proprietor
may not give his affent to the fale. But if, after the fale of the Have
by the purchafer, he fhould then either die or be killed, and the proprietor
afterwards give his affent to the fale, fuch aflent is not valid;
becaufe the exiftence of the fubje'Ct of the fale is requifite to the
aflent, and that no longer exifts in either inftance.
O b j e c t io n .— The reafon here alldged is a valid one where the
flave dies a natural death; but it is not fo where he is fa in , becaufe in
that cafe the flave, in virtue of th e, exiftence of the amercement, is
confidered, as it were, to be himfelf in exiftence,— for if a flave, having
been fold by a valid contract, fhould afterwards be murdered whilft
V ol. II. 1 U u u . i n
Thé refale of
a flave pur-
chafed from
a ufurper is
rendered invalid
by the
proprietor
iignifying his
aflent to the
firft fale :
but i f the
flave perifli
in the interim
the aflent
is o f no account.