valid,. although it be poflible to render it valid by fuppofing the dirms
on each» fide to have been oppofed to the cloth of the other :— for, in
all thefe cafes, although there be a poffibility of rendering the fales
valid, ftill they remain invalid, for the reafon already alledged. The
arguments of our doctors .are, that the oppofition of a total to a total,
.provided it be in an abfolute manner, (that is, without any particular
-fpecification,) admits of this fuppofition, that the feparate parts are
oppofed to the feparate parts;—-as' in the cafe of an homogeneous fale,
•for iiflftarice, fuch as a fale of two dirms for two dirms, in which the
unities on each fide are .oppofed to thofe on the other refpedively.;
whence i f each of the contracting, parties refpeidtively take one dirm,
and. they then feparate from the meeting, the fale is valid to the
amount feized ;— whereas, if the feparate parts of the fubjeCt of the
fale, inftead of being oppofed to each other in a definite manner, fhould
be oppofed to each other in an indefinite manner, the fale in the amount
feized would not be lawful, fince it muft neceffarily follow that the
amount feized by each of the parties would ftand oppofed, indefinitely,
to what was feized and what was not feized.— It is therefore evident
that the oppofition of a total to a total infers the oppofition of the unities
refpeftively; and as this, to give validity to the contradt in quef-
tion, muft be in a definite manner, it is,.prefumed to be fo, in order
that the contradt may be valid.— With refpect to what Ziffer and
Shafei urge, that “ a modification is induced with regard to the re-
“ quifites of the contract,” we reply, that a modification is induced
with refpect to the quality of the contradt, but not with refpect to the
original requifites of it, becaufe the original requifite of the contradt is
that a total fhall be transferred in exchange for a total, and this continues
unaltered.— Analagous to this is a cafe where a perfon fells
the half of a flavej, fhared in an equal degree between him and another
; for in that cafe the law fuppofes the fale to apply to his own
fhare, in order to' its validity. The cafes enumerated by Ziffer and
Shafei, on the contrary, are not analogous to this in queftion.— Tbe
firjt cafe (namely, that of a Moordbihat fale) is not analogous, as it is
net poflible to fuppofe that the- whole of the profit is exadted on
the
the cloth, for, if fo, the fale of the bracelet would be rendered a
fale of friendfhip, and hence an alteration would take place in the
eflence of the contradt. T h e fecond cafe, alfo, is not analogous, becaufe
the mode there propofed for legalizing the fale is-not determinate,
fince in the fame manner as it is poflible to conftrue the fum oppofed
to the Have to be one thoufand dirms, fo alfo is it poflible to conftrue
it to be more than one thoufand, in every different gradation, until it
amount to one thoufand four hundred and ninety-nine dirms: in op--
pofition to the cafe in queftion, where the mode propofed is determinate.
The third inftance, alfo, is not analogous, becaufe the force of the fale
there refts upon an indefinite objedt, which is incapable of being the
fubjedt of fale; and as indefinity and fpecification are of oppofite import,
it is impoflible to-conftrue the fale as applicable to any fpecific article.
In the lafi inftance, on the other hand, the fale is originally valid,
and becomes otherwise from an accident, namely, the feparation of
the meeting: but the prefent queftion relates to a contradt in its-original
formation, and not to any adventitious circumftances.
A s a l e of eleven dirms in exchange for ten dirms and one deenar,
is valid :— and in this cafe. ten dirms are confidered as oppofed to
ten dirms, and the remaining dirm to the Angle, deenar; becaufe in
a fale of dirms for dirms equality is indifpenfible, and it is therefore
reafonable to fuppofe that fuch was the intention of the parties;,
and with refpedt to the remaining part of the fale, namely, the oppofition
of one dirm to one deenar, equality is not requifite, as they are
not homogeneous.
If , in a fale of gold for gold, or filver for filver, the fnbjedl,
on one part, be inferior in point of weight to the other, and thefe
be joined to the inferior fomething equal in. value to the deficiency
arifing from the difference of weight, in this cafe the fale is valid,
without being abominable. If, on the other hand, the value of the
thing fo added be not equal to the difference, ftill the fale is valid,
and To alfo,
where the article,
on-one
fide, conflits
of a certain
number Of
coins o f one
fpecies, and,
on the other,
o f an equal
number, o f
two fpecies.
A deficiency
o f value, on
one fide, in
point of
weight, may
be made up
by the addition
o f any
other'article'
o f proportionable
value.