may demand
thefulfilment.
The furety is
releafed by
delivering up
his. furetee ;
or, by delivering
him-
f iV “P>
or, by his being
delivered
up by a mef-
feBger.
The payment
of the claim
may be fuf-
pended upon
the non-production
of the
principal;
but ftill the
biil for the
fierfai remains
in force.
f rom th e f u r e t y ; b e c au fe h e ir s and e x e cu to r s rep re fen t th e
dead.
I f , in a cafe of bail for the perfon, the furety fhould not ftipulate
his releafe from the bail'on the delivery of the perfon, he is never-
thelefs releafed on fuéh delivery, becaufe this being the intention of
the contrail, it is confequently eftablifhed indépendant of an exprefs
declaration. It is to be obferved, likewife, that the furety becomes
exempt from his obligation on the delivery of the perfon, without the
acceptance of the claimant being required as ^condition; in the fame
manner as in the payment of a debt. The effeil is alfo the fame,
in cafe the principal fhould of himfelf prefent his jierfon, as if he fhould
fay “ I have prefentéd myfelf on account of the bail of a particular
“ perfon who has become- furety for me.” This is approved, becaufe
the furety being entitled to contend with him, in order that he
may deliver himfelf up, it is, therefore permitted to him to deliver
himfelf up voluntarily to prevent contention. It is alfo lawful for the
agent or meflènger of the furety to deliver the perfon, as thefe are the
reprefentatives of the furety himfelf.
I f a p e r fon b e c om e bail fo r th e ap p ea rance o f an o th e r , on th is c o n d
itio n , th a t , i f h e do n o t d e liv e r h im w i th in a p a r t icu la r p e r io d , h e lh a ll
th e n b e re fp o n fib le fo r th e c la im u p o n h im , (a th o u fa n d dirms fo r in -
f t a n c e ,) and h e a fte rw a rd s fa il o f p ro d u c in g h im w i th in th e f ix e d p e r
io d , h e is th en b oun d to m a k e g o o d th e c la im u p o n th e fu r e te e ;—
b e c au fe in th is c a fe ' a bail fo r property is fu lp e n d e d on th e c o n d itio n ,
n am e ly , th e fa ilu re in p ro d u c in g th e p e r fo n w ith in a f ix e d period ;
and fu c h fu fp en fio n is v a lid , b e c au fe o f th e c u f tom o f m a n k iq d . H e n c e ,
w h e n th e c o n d itio n is n o t fu lfi lle d , t h e fu r e t y b e com e s r e fp o n fib le fo r
th e c la im ; and h e is n o t , n e v e r th e le f s , re le a fed f rom th e bail fo r th e
p e r fo n ; b e c au fe bail fo r th e p e r fo n and bail fo r th e p ro p e r ty are n o t in c
om p a tib le .— S h a fe 'i m a in ta in s th a t th e b a il in th is in fta n c e is n o t
v a lid ; b e c au fe b ail fo r p r o p e r ty in d u c e s a re fp o n fib ility fo r p ro p e r ty in
the
the fame manner as fale; and hence it is unlawful to fufpend it on a
matter of doubt and uncertainty; in the fame manner as in the cafe
Pf fide._The reafoning. of our doilors is that bail for property is ultimately
like/ale, inafmuch as it entitles the furety to repayment from
the principal of what he advanced to the claimant on his account,— and
that in the beginning it refembles a gift, being an acquiefcence in refponfibility
without any exchange.— In due obfervance, .therefore, of
both thefe circumftances, it is declared that the fupenfion of it, on an
uncertain condition, (fuch as the blowingof the wind, the fallingof
the rain, and the like,) is invalid; but that it is valid if fufpended on
a certain condition, fuch as in the cafe in queftion.
I f a perfon be bail for the" appearance of another “ on the mor-
‘ ‘ row,’’! under a condition of anfwering the claim upon the other
himfelf, in cafe of failure, and the principal die before the morrow* he
is in that cafe furety for the property, becaufe here the condition on
which he agreed to the refponfibility clearly takes place.
If a perfon claim one hundred deenars from another, either with or
without an explanation of their quality, and a third perfon become bail
for the perfon of the debtor, under a condition that “ 4 if he do not del
i v e r him on the morrow, he fhall be refponfible for an hundred
“ deenars,” and he fail in the delivery of him on the next day, he is
in that cafe refponfible, according to Haneefa and Aboo Yoofaf, for the
one hundred deenars.— Mohammed maintains that if the quality of the
deenars be not explained previous to the acceptance, of the bail, the
claimant has no right afterwards to explain their quality and demand
them from the furety.—His arguments in fupport of this opinion
are twofold. F irst, the furety has refted indefinite money upon a
matter of doubt and uncertainty, inafmuch as he: has not fpecifically
referred the one hundred deenars to thofe which were claimed; (for
which reafon the bail is invalid, even if a definition of the quality havs
been previoufly given.)—Secondl y, the claim of an hundred deenars,
. without
If the time be
fixed, and the
furetee die in
the interim,
the furety becomes
refponfible.
Cale o f bail
for property,
connedled
with bail for
the perfon.