between the parties with regard to the exiflence of a condition concerning
the quality of the article ; becaufe in that inflance the invalidity
of the contradt, from a want of a definition of the quality,
is certain.
— If, on the other hand, the feller, aflert that the period had been
determined, and the purchafer deny this, in that cafe, according to
the two difciples, the affertion of the purchafer muft be credited, becaufe
he denies the right which the feller claims from him, although,
at the fame time, he deny the validity of the cont radt in the fame
manner as holds with refpedt to the proprietor of the flock in a contradt
of Mozaribat;— that is to fay,' if the proprietor of the flock were
to fay to his Mozdrib, or manager, “ I flipulated that a half of the
“ profit fhall go5 to you excepting ten dir m s and the manager
deny this, and affert that he had flipulated a half of the profit in
his favour, in this cafe the affertion of the proprietor of the flock is. credited,
fince he denies the claim of right of the agent, notwithflanding
he thereby at the fame time deny the validity of the contradt between
them.— Haneefa fays that, in the cafe in queflion, the affertion
of the feller is to be credited, becaufe he claims the validity of the
contradt. Befides, the purchafer and feller both agree in their having
made a Sillim contradt, and confequently they both apparently agtee
in the validity of i t :— but, again, the purchafer, in denying the affertion
of the feller, denies the validity of the contradt, which is
the denial of a thing he at the fame time admits, and is confequently
not worthy of credit.— It is otherwife In the. cafe of Mozaribat, becaufe
a contradt of Mozdribat is not binding upon either the manager
or the owner.of the flock, fince the manager may refufe the execution
of the Mozaribat at any time, and the conflituent may difmifs
him when he pleafes : fuch a difagreement, therefore, in the cafe of
Mozaribat, is of no confequence, the plea of invalidity, in this inflance,
amounting, in fadt, to nothing more than a refufal to carry the
contradt into execution, which it is lawful for either party to do.
There remains, therefore, only the claim to profit on the part of
the,
the manager; and as this is oppofed by the proprietor of the flock, his
declaration mull confequently be credited.— A Sillim contradt, on the
contrary, is abfolute, and therefore of a different nature.
— From the above difcuffion it appears to be a general rule that the affertion
of a perfon who denies his ovtn right, and not the right of another
upon him, is not credited in the opinion of all our dodtors;— and
that whoever pleads the validity of a contradt mull be credited in his
aflertion, according to Haneefa, provided both parties be agreed in the
uniformity of the contradt, fuch as that of Sillim, .which, whether
valid or invalid, is of an uniform nature; in oppofition to Mozaribat,
which, in cafe of its validity, is a contradt of participated profit, and
in cafe of its invalidity« merely a contradt o f hire.— The two fcholars
are of opinion that, in the cafe in queflion, the affertion of the defendant
mufl be Credited, notwithflanding he thereby deny the validity
of the contradt.
If a perfon enter into a Sillim contradt with refpedt to cloth,, de-
fcribing its length, breadth, and quality of finenefs or coarfenefs, fuch
fale is valid, becaufe it is a contradt of Sillim which relates to a known
thing, and of which the delivery is pradticable. I f the fubjedl o f the
fale be a piece of f l k fluff, it is neceflary, in addition, to fettle the
•weight, that alfo being an objedt in this inflance. -
A s il l im fale o f jewels or marine fhells is not lawful, becaufe
the unities o f thefe vary in their value.
A s il l im fale o f fmall pearls that are fold according to weight is
lawful, as the weight afcertains the fubjedl o f the fale.
T here is no impropriety in a fale of bricks, whether they be in
a wet or dry flate, provided a defcription be- given of the mould in
which they are formed, becaufe bricks, in their unities, are of a fimi-
lar nature, more efpecially where their mould is defcribed.'— In fhort,
Z z z 2 . ' every
In Sillim fale»
o f piece goods
all the qualities
mult be
particularly
ipecified.
Sillim fale is
not valid in
fhells, or jewels
: but it is
valid in fmall
pearls fold by
weight.
in Irickiy