It is lawful
with refpe&to
articles
which, although
pe-
rifhable in
their nature,
are kept in a
ftate of pre-
fervation,
or in fitua-
tions where
the article
may always
be had.
“ o f s i l l im until their ripenefs be apparent, ” which evidently implies
that the capability of the delivery from the formation of the contradl is
neceflary. Se c o n d l y , The capability of delivery is founded on the
article being fit to be taken pofleflion of by the purchafer, and it is
therefore indifpenfable that it be in uninterrupted cxiftence from the
foimation of .the contract to the inflant of delivery.
I f , at the promifed period of delivery, the fubjeft of the Sillim be
loft or difappear, the purchafer has in that cafe the option of dilfolving
the contrail, and receiving back the price from the feller,— or of
waiting until the fubjeft of the fale may be recovered. . This is analogous
to the abfconding of a Have after the fale of him but before the
delivery, in which' cafe the purchafer has the power of either diffolving
the contrail or waiting until the Have may be recovered. -
A s i l l im fale is lawful with refpeil to dried and falted fifti, provided
it be according to a ftandard weight, and, the fpecies be known ;
becaufe in this cafe the fubjeil of the fale is of an afcert:ained nature,
the quality is'defined, and the delivery is prailicable, fince fuch filh
is always fit to be taken poffeffion of. This fpecies of fale, how-
ever, is not allowed according to tale, fince the individuals amondl
filh are not fimilar:— nor is it allowed with refpeil to frejh fifti,—
unlefs at fuch a particular period of the year as renders the procurement
of them certain, in which a Sillim fale with refpeil to them
according to a fixed weight, is lawful, provided the fpecies be defined’
Thereafonofthis is that frelh'filh is not.always to be had, beino-
fometimes withheld, in the winter feafon, in confequence of the water
being frozen. In any city, however, where frelh filh are always to
be procured, a Sillim fale with refpeil to them is perfectly lawful, provided
it be according to weight, and not by tale.— It is related, as an
opinion of Haneefa, that it is not lawful to make a Sillim fale with
regard to the flelh of filh of fo large a nature as to occafion their fle/h
to.be cut in the fame manner as that of oxen or goats for inftance, becaufe,
S A L E .
caufe, being illegal with refpeil to all other animals, it follows that it
is likewife fo with refpeil to JiJh, of which the flelh is equivalent to
that of any other creature.
A s i l l im fale ofJkJh is utterly unlawful, according to Haneefa. It «not law-
The two difciples maintain that it is lawful with refpeil to the flelh
of quadrupeds, provided a notification be made of the flelh of a known
and determinate part, (fuch as the haunch, for inftance,) and that a
defcription be given of the qualities, (fuch as fatnefs or leannefs for
inftance;) becaufe in this cafe the weight of the flelh is determined,
and thq qualities are afcertained,— whence it is that, in cafe of its de-
ftfuition, a compenfation of a fimilar is given, and alfo that it is lawful
to borrow it according to weight, and that ufury takes place with
regard to it. It is otherwife with refpedt to the flelh of birds, ior a
Sillim fale.of that.^unlawful, fince it is impoflible to fpecify the
flelh of a particular part, inafmuch as it is not a cuftom to feparate
the parts of birds in fale, becaufe of their fmallnefs. T h e argument
of Haneefa fis that the quantity of flelh is uncertain, becaufe of the
difference, occafioned by the bones, in regard either to their number or
grojfnefs; and alfo, becaufe of the difference w'hiph takes place with
refpedt to the fatnefs. or leannefs, as animalslare fat or lean according
to the feafons; and as this.uncertainty is a caufe of contention,
fuch fale is therefore inadmiflible;— and for the fame reafon, the
Sillim fale o f flelh without bones is not lawful. This is approved.
With refpedt to the cafes quoted by the two difciples pf a compenfation
of a fimilar being made for flelh in cafe of its deftrudtion, and of
its being lawful to borrow it, the legality of fuch compenfation, &c.
is not admitted: but admitting the legality., ftill the principle'on
which the compenfation of a fimilar proceeds is evidently becaufe the
retribution of a'limilar is more equitable than that pf money, fince
money anfwers only to the object, whereas the fimilar anfwers' both
objedt and appearance; and the legality of borrowing flelh is becaufe
V.OL. II. X x x a feizin
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