The diAblution
of a fale
is rendered
invalid by the
article p e r iling
before re-
ilitution.
In a difpute
with refpeil
to the value of
the hibjedt,
is valid, and the feller in the fame manner remains refponlible for
the value at the period of feizin.— The reafon of this is that the validity
o f a diffolution refts upon the exiftence of the contrail, and
that, again, refts upon the exiftence of the fubjeil of i t : now, in a
Contrail of Sillim, the article advanced fo r is the fubjeEl of the contrail
; and as that, in the cafe in queftion, ftill continues in exiftence,
it follows that the diffolution is valid :— and the diffolution being
valid, and the contrail of Sillim confequently cancelled with refpeit
to the article advanced for, it follows that it is alfo cancelled with
refpeil to the (lave, (being the price paid in advance,) as a dependant
of the article advanced for, although it be not valid with refpeil to
the Have, originally,. becaufe of her non-exiftence, fince there are
.many things which, although not valid originally, are yet fo depend-
antly.— T h e contrail, therefore, being cancelled with relpeil to the
{lave, it becomes incumbent upon the feller to return her; but as
this is imprailicable, he muft pay her value. '
If a perfon, having purchafed a Have, lhould agree with the feller
to diflolve the bargain, and the Have afterwards die in his pofleflion,
the diflolution is invalid ;— or, if the {lave die firfi, and the parties
then agree to diflolve the contrail, in this cafe alfo the diflolution is
invalid;— becaufe, the flave being thefubjeil of the fale, and his death
of confequence deftroying the exiftence of the contrail, the diflolution
is therefore invalid from the beginning in the fecond cafe, and becomes
invalid in the end in thq firft cafe,— as the fubjeit no longer
remains. It is otherwife in a cafe of Beea Mookayeza, or barter; becaufe
a diflolution in that cafe is valid after the decay or deftruilion
of one of the articles-; fince either of them being capable of becoming
the fubjeit of the fale, the exijling one is therefore confidered as fuch.
I f a perfon enter into a contrail of Sillim for a Koor of wheat, at the
rate often dtrms, and the feller afterwards aflert that “ he had agreed for
“ wheat of an inferior fort,” and the purchafer deny this, afferting that
4 “ the
“ the ftipulation of wheat was made in an abjhlute manner, and
“ therefore the contrail is invalid,” in fuch cafe the affertion of
the feller, corroborated by an oath, muft be credited, fince he pleads
the validity of the contrail, by. virtue of the declaration of a condition
of i t ; and the affertion of the purchafer, notwithftanding his
denial of the validity of the contrail, is not credited, becaufe it
tends to a deftruilion' of his own right, fince it is a cuftom, in
Sillim fales, that the goods advanced for be fuperior to the fum advanced.—
If a vice verfa difagreement take place between the parties,
the learned fay that, agreeably to the doitrine of Haneefa, the afler-
tion of the purchafer is credited, fince he claims the validity of the contrail.—
According to the two difciples, the aflertion o f the feller is
credited in both cafes, as he is the defendant in both, notwithftanding
that, in the latter, he deny the validity of the contrail. This will
be more fully explained hereafter.
If a difagreement take place between the parties to a Sillim fale,
by the feller afferting that a period of delivery had not been determined
in the contrail, and the purchafer afferting that it had, the affertion
of the purchafer muft be credited, becaufe a determination of
a period for delivery is a right of the feller, and his denial is therefore
a wilful injury to himfelf.
O b j e c t io n .— The feller denies the determination of a period for
delivery from a view to his own advantage ; fince fuch denial is the
caufe of annulling the contrail, by which means he obtains the property
of the goods he had engaged to deliver. Hence his denial is advantageous
'and not injurious to himfelf.
R e p l y .— The invalidity of a Sillim contrail, becaufe of the period
of delivery being undeterminate, is not certain, fince our doflors have
difagreed on this point. The advantage, therefore, in this view, is
of no account;— whereas the advantage to the feller, from the determination
of fuch period, being obvious, his denial of it thereupon is
an injury to himfelf.— It is otherwife in. the cafe of a difagreement
V ol. II. Z z z between
the aflertion
of the feller
(upon oath)
muft be credited.
If the feller
deny the appointment
of
a period of
delivery, the
aflertion of
the purchafer,
fixing that period,
muft be
credited.