this nature, afio, the great, and the fmall are confidered as the fame,
becaufe mankind have agreed in making no account of the difference.
It is otherwiie with refpedt to melons and pomegranates, becaufe the
difference in them is confiderable. It is to be obferved that where
there is a difference in the individuals of any kind, it may be known
whether fu.ch difference be of any account or not by the effedt it has
on the price. Thus articles, of which the individuals- of the fame
kind bear a different price are confidered as different; but where the
price is the fame with refpedt to the individuals they are confidered
as limilar. It is related, as an opinion of Haneefa, that oflrich eggs
are not familars, as they bear different prices.
I t is to be obferved that in the fame manner as a Sillim contract
is lawful with refpedt to fimilars of tale according to number, fo is it
lawful with refpect to them according to a meafurement of capacity.
Ziffer has' daid that it is not lawful according to a meafurement of
capacity, as that does not apply to articles of tale; and it is alfo a tenet
of his, that a Sillim fale with refpedt to articles of tale is unlawful becaufe
of the difference between the individuals of the kind. The
reafoning o f our dodtors is, that quantity is fometimes afcertained by
number and fometimes by meafurement of capacity; and that fimilars
of the fame fpecies being confidered as articles of tale only becaufe
of the confent and pradtice of mankind, they may for the fame reafon
be fubjedted to a meafurement of capacity by the confent of the
parties. A Sillim fale is likewife lawful with refpect; to Faloos. Some
have faid that this is the opinion of the two difciples; but that Mohammed
is of a different opinion, fince, according to his dodtrine, Fa-
loos are reprefentatives of price! T h e dodtrine of the two difciples on
this head has been already explained in treating of Ufury,
A s il l im fale with refpedt to animals is unlawful. Shafe'i deems
it lawful, as the article may be afcertained by an explanation of the
genus, the age, the fpecies, and the quality; after which only a fmall
3 difference
difference can take place, in the fame maimer as in the cafe of cloth.
Our dodtors, on the other hand, argue that after fuch explanations
the difference may ftill.be great with refpedt. to various qualities and
hidden circumftances, which muff occafion a. contention; in oppo-
fition to the cafe of cloth, becaufe,. as being the workmanfhip of
man, there is rarely any material difference in. two pieces of the fame
kind.. Befides, it is recorded in the N a il Sahe'eh that the prophet
forbad: the Sillim fale of animals; and this prohibition, extends to ,
every fpecies of animals* even to fparrows.
S i l l i m fale Is- not lawful with refpedt to the fa rts o f an. animal, or xtieparn
fuch as the head, or the feet, becaufe thofe are' not fimilars of tale,;. 6r fkins, fire-
ijor is there any meafure by which the fize of them might be afcer-
tamed. l a th'd fame, manner alfo, a SillimhAe is unlawful , with refpedt ’ quality be
to fkins,.. according-to number,, or firewood according to bundles, or
hay according to packages, except the quantity be afcertained by fpe-
cifying the length, of the firing that ties them; for then the Sillim.
fale with refpedt to them is lawful, provided the mode of binding be
not fuch as to create ,a; difference-.
A s il l im . fale is- not lawful, unlefs the fubjedt o f it be in exifl- nor unlefs the
ence, from the conclufion o f the contradt, until the ftipulated period
of its delivery. Hence the fale is not lawful if the fubjedt be not in exiftenceun-
J . til-the time of:
exigence at the formation of the contradt, but be extant at the period delivery.
ftipulated' for its. delivery; or vice verfa;— or if, being extant at the
formation of the contradt, and the time of delivery, it fhould have
been non-exiftent at fome period of the intervening time. Shafe'i
maintains that the exiflence at the period of delivery is fufficient,
whether the article have been, extant before or not; becaufe in this •
cafe the feller is capable of delivery at the period on which delivery
is required. The arguments of our dodtors upon this point are twofold.—
F i r s t , a faying of the prophet “ Tejhall not fe ll fru its by way
1 <f