in the poffeffion of the feller, ftill the fale is- not null, fince the c6n-
lideration for the fubjeft of the fale (namely the amercement) is extant,—
whereas, * if he die a natural death in the hands of the feller,
the fale is null. It would therefore appear that the affent, in cafe
of the murder of the Have, is of no effeft.
R e p l y .— In the cafe in queftion it is not poffible to confider the
fine as the right of the purchafer, fince not having been the proprietor
of the Have at the period of the murder, he can have no right
to the amercement, nor can the Have, in virtue of the exiftcnee of the
amercement, be confidered as extant with refpeft to him. The {late
therefore, is not extant with relation to him, either actually or virtually.
It is otherwife in the cafe of a validfale, becaufe there the
purchafer had acquired a right of property to the Have which may be
transferred to the conjideratian for him; and confequently the Have
may be confidered as extant with refpeft to him.
An article If a perfon fell a {lave, the property of another,, and the purchafer
fh rou ghthe eftablifh by witneffes that the , feller had acknowledged that he had
unaduTh” r°zed *"old him witilout the affent ° f the proprietor,— or, that the proprie-
perfon can- tor had declared that he had not given his affent to the lale, and the
turned to the purchafer wifh to return the {lave, the evidence adduced by him is
ahhough the not t0 admitted; becaufe there- is a prevarication in his plea, fince
purchafer his aft of purchafing the {lave amounts to a declaration of the validity
want, of au- of the fale, and the plea he afterwards, prefers is contradiftory of this :
proprietor's^6 P^ea> therefore, is not valid; and teftimony is to be taken only
affentjothe where the plea it tends to eftablifh is of a valid nature. If, however,
but if the the feller Ihould declare before a magiftrate that he had made the
hfnotXrng faIe without the authority of the proprietor, the fale in that cafe be-
tahethfakZisd' 1 COmeS & T 2 Provided the purchafer defire thediffolution of it, becaufe
null. the inconfiftency of the purchafer is no bar to th-e validity of the declaration
of the feller, and when the parties both concur in the fame
wilh the fale is rendered null of courfe:— but the concurrence of the
purchafer is a neceflary condition. What is here advanced, that “ the
“ evidence
I f l l
“ evidence adduced by the purchafer is not to be admitted,” is the
doftrine of the Jama Saghe'er. The compiler of the Hedaya obferves
-that it is mentioned in the Zeeadat, that if a perfon purchafe a.female
{lave, (for inftance) for one thoufand dirms, and take poffeffion and pay
the price, and afterwards, in confequerice of another perfon claiming
her as his property, and afferting his right to her, fufrender her to
him,—-and he [the purchafer] eftablifh,' by witneffes, 'that the feller
had acknowledged that the flave was the property of the faid
claimant, the teftimony fo given is inadmiflible. Between thefe two
cafes, therefore, there is an evident coutradiftion, which, however,
our modern doftors thus account for. In the cafe alluded to in the
Jama Sagheer, the Have was in the poffeffion of the purchafer when
he produced the witneffes; but in that from the Zeeadat the flavte
was in the pofleffion of the claimant and not of.the purchafer-, arid
the condition on which a reftitution of the purchafe-money from the
feller is warranted (namely, non-exiftence of the fubjeft: of the fale
with relation to the purchafer) not exifting in the fir jl cafe, but exift-
ing in the fecond, the evidence in the firft cafe is therefore rejefted,
and in the fecond it is admitted.
If a perfon fell a houfe belonging to another, without his per- in the fale of
million, and make delivery of it to the purchafer, and afterwards declare by
that he had fold it without the permiffion of the owner, then (ac- “
cordino- to Haneefa and the laft opinion of Moo Toofaf) the feller is the feller is
° J r- r\ . . r * i BmBwPmI , . not refoon- not refponfible The nrit opinion or Aboo loojaj was that the f^ie.
feller is refponfible, and this opinion has been adopted by Mohammed.
This cafe is one of the examples, of ufprpation over immoveable property,
concerning which there is a difference of opinion, as will be
fully explained under the head, of Ufurpations.
* Meaning, that the proprietor is not to look to the f i l e r for the price of his houfe,
hut to the purchafer ■,—or, that the feller is not fecurity for the purchafer.
l id - *
I H n
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U u u 2 C H A P .