and (inihort)
in all articles
which admit
a general de-
fcription o f
quality, and
afcertainment
of quantity ;
or which are
particularly
defined.
Articles befpoke
from
the manufacturer,
in a
contract of
Sillim, are
confidered as
entities j
every thing of which it is poflible to comprize a defcription of the
qualities, and a knowledge of the quantity, is a fit fubjeCt of Sillim
fale, as it cannot occafion contention; on the other hand, a Sillim fale
is not lawful with refpeCt to things incapable of being defined by a
defcription of quality or quantity; becaufe the fubjeCt of a Sillim fale
is a debt due by the feller; and if its quality be not known there
eonfequently exifts a degree of uncertainty from which a contention
muft arife.
T h e r e is no impropriety in a Sillim fale of pots'or veflels for boiling
water, or of boots, or the like, provided thefe articles be particularly
defined, becaufe the conditions eflenjfial to the validity of a Sillim
fale are here obferved:— but if the articles be not defined, the fale is
abfolutely invalid, the fubjeCt of the lale being in fuch cafe an undefined
debt. It is alfo lawful to befpeak any of thefe articles from-
the workman without fixing the period of delivery.— Thus if a perfon
fhould defire a boot-maker to make boots on his account, of a particular
fize > and quality, fuch agreement is lawful, on a favourable-
conftru&ion, founded on the ufage and practice of mankind, although-
it be unlawful by analogy,, as being the fale of a nonentity, which is
prohibited.
I t is to be obferved that a contract- for workmanfhip is-a fale and
not merely a promife. This is approved. The fubjeCt of the fale,
moreover* in fuch cafe, although in reality a nonentity, is yet confidered,
in effeCt, as an entity, and the thing upon which the contract
refts is confidered as a fubftanee, (that is, as boots,, for inftance) and
not as the work of a manufacturer in an abflrahled manner ;■— and accordingly,
if the manufa&urer bring boots. that had been worked
by another, or boots which he had himfelf worked prior to-
the contract, and the perfon who had befpoke them fhould approve
of the fame, the contract is legally fulfilled.— Befides, articles that
are befpoken are not determined for the perfon who befpoke them
3 until.
until he approve of them; and hence, if the workman fhould fell
them to another before He had fhewn them to this perfon, it is lawful.—
All this is approved.
W h o so e v e r befpeaks goods of a workman has the option of tak- and may be
ing or rejecting them, becaufe of his having purchafed articles which difapprwed,
he has not feen.— T h e workman, however, has no o1p t' i- on, infomuch vueProyn. dell_
that the perfon who befpoke them may, if he pleafe, take them from
him by force.— This is recorded by Mohammed, in the Mabfoot, and
is the moil authentic doCtrine.— It is related however, as an opinion
of Haneefa, that the workman alfo has an opinion, inafmuch as it is
impofiible for him to furnifh the articles befpoken without detriment,
fince in order to make boots, (for inftance,) it is neceflary
to purchafe hides, and inftruments to cut them, and this is not free
from lofs. It is related, as an opinion of Aboo Toofaf, that neither
party pofleffes an option ; for the workman, as being the feller, is not
entitled to an option,— in the fame manner as, in a fale of goods
unfeen, the feller hath no option ; and with regard to the perfon
who befpèaks the goods, if an option were given to him it would
be an injury to the feller, fince if he rejected the goods other people
might not chufe to purchafe them for the value;— as where, for
iriftance, a commander of high rank befpeaks goods, and the workman
accordingly makes them in a ftyle fuitable to his rank, and he afterwards
rejeCts them;— in which cafe the common rank of people:
would not purchafe them for their value.
A c o n t r a c t with a workman for the furnifhing of goods is not
lawful with refpeCt to fuch articles as it is not cuftomary among mankind
to befpeak,— as cloth (for inftance,) becaufe the befpeaking of
goods is in itfelf unlawful, and is therefore admitted by the law only
fo far as it is authorized by thé cuftom of mankind, which is confidered
as a neceflary inftrument of its legality.— It is alfo requifite, in
befpeaking articles authorized by the cuftom of mankind, to defcribe
their
An engagement
with a
manufacturer
to furnilh
goods which
it is not cuftomary
to be-
fpeak is not
valid.