554 Book XVII.
Gold may be
fold for filver,
by conjeftu.e;
but not gold
for gold, nor
iilver for filver.
In the fale of
an article hav-
inganygoldor
filver upon it,
the price paid
down is op-
pofed to the
gold or filver.
S I R F S A L E S .
an abfolute manner, and not to the ten dirms of the S irf fale in a fpe-
cific manner. Our doctors, on the other hand, argue that price, in a
S ir f fale, is alfo a fubje<ft of the fale; becaufe, as every fale muft have
a fubjeft, and as the articles, in a S ir f fale, are both reprefentatives of
price, without any of them having a preference over the other, it follows
that either of them is the lubjefl; and the fale of the fubjedt
previous to the feizin is unlawful.
O b j e c t io n .— The conlideration, in a S ir f fale, is a reprelenta-
tive of price, and therefore of an undeterminate nature; whence it
would follow that it cannot be confidered as the fubjeft, fince the fub-
je ci of a fale is required to be determinate.
R e p l y .— The fubjedt of a fale is not required to be determinate;
for, in a Sillim fale; the thing on account of which the advance
is made is the fubjedt of the fale; but {till it is undeterminate.
T he fale of gold for filver, by conjecture*, is lawful, becaufe
equality, in a fale of this nature, is not required.— It is unlawful,
however, to fell gold for gold, or fiv e r for fiv e r , by conjecture, becaufe
in fuch fale there is a fufpicion of ufury.
If a perfon fell, for two thoufand Mijkals of filver, a female Have
whofe real value is one thoufand MJkuls, and on whofe neck there is
a collar of filver equivalent to one thoufand Mijk&ls of filver, and the
purcbafer having paid a thoufand Mifk&ls of filver, I ready money, the
parties then feparate from the meeting, fuch payment is confidered to be
the price of the collar, becaufe the feizin of fo much of the price of the
whole was a neceffary condition, as the fale in that proportion was a S irf
fale; and hence it is reafonable to conclude that the feller paid the exadt
amount of which he knew the feizin to be indifpenfibly neceflfary. In the
fame manner, alfo, if he purchafe the faid flave with the collar, for two
thoufand Mijkals of filver, of which one thoufand is prompt and the
other thoufand poftponed, the prompt payment is confidered as
* T h a t is, b y a loofe undeterminate eftimate.
the
the price of the collar, becaufe the ftipulation of payment at a future period
not being lawful in a S ir f fale, and being permitted in the fale of a
flave, it is reafonable to fuppofe that the parties, in contradhngthe fale,
and ftipulating the diftant period, intended to proceed according to law.
-^-If, alfo, a perfon fell, for one hundred dirms, a fword, of which the
filver ornaments amount to fifty dirms, and the purchafer pay immediately
fifty dirms of the price in prompt payment, fuch fale is lawful,
and the payment made is confidered to be for the price of the ornaments,
although the purchafer may not have fpecified this. The
fame rule, alfo, holds if the purchafer fay to the feller, “ Take thefe
' “ fifty, dirms in part of the price of both," (that is, of the ornaments
and fword,) becaufe two things are fometim'es mentioned where only
one is intended, and this fuppofition is here adopted from the probability
o f it. If, however, the parties feparate without a mutual feizin,
the - fale is null with refpeft to the filver ornaments, becaufe of its
being in that degree a S irf fale, to the validity of which mutual feizin
is ef fent ialor, if the fword be fo framed as not to admit a fepara-
tion of the ornaments without fuftaining detriment, the fale of it
is in this cafe alfo null, becaufe fo fituated the feparate fale o f it is
not permitted, in the fame manner as it is not permitted to fell the
beam of a roof.— If, on the other hand, the’ fword admit of a fepara-
tion of the ornaments, without detriment, the fale, in the manner
above-mentioned, is valid with refpeft to the fword-, but with refpedt
to the ornament it is nuli.— It is to be obferved that the fale of a fword
with filver ornaments in exchange for dirms is lawful only where the
filver of the dirms exceeds that of the ornaments ; and that, if the
filver of the dirms be either barely equal to, or lefs than, that of the
ornaments,— or, if it be not known whether it be,more or lefs, the fale
is invalid. T h e reafon of the invalidity in cafe of its not being known
whether it be more or lefs is, that the probability is in favour of its
being invalid ; fince there are two caufes of invalidity, namely, equality
and inferiority; whereas there is only one caufe of validity, viz.
fuperiority.
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