Bail may be
given for the
price, but'not
; for the goods,
in a fale. •
.'Bail for the
performance
of work by a
fpecific ani-
mal is not
uvalid. |
A contrat 6f
bail muft be
formed with
A peusoN' may" lawfdlly become bail, on the part of a purchafer,
for the payment o f the price, becaufe pried is a debt: but it is'riot
lawful to become bail, on the part-of the feller., for-the merchandize.;
for that.is fubftance,-of which-the compenfatiori',’ in cafe of deftruo-
tion, is in hired, by means of fomething of a different kind, .namely,
the.price-, and although bail .for'infured fubftance be lawful in the
opinion of.all.our dodtors, ftill itds required that the fubftance be injured
tfor a fimilar in' kind, -fuchiris the fubjedl of >an invalid fale; an
.article feized in virtue of an intention to purchafe, or an article
.ufurped; but not for.any fubftance which is infured for fomething of
ra differentkind, fuchas the fubjedl of ^ruaiidi,ale, or a pawn', nor for
any fubftance held in the nature of truft, fuch as a depolit,'a fubjedt of
rent, a loan, Mozaribat ftock, or partnerfhip Back.,— If, after the pur-
chafer, in a cafe of fale, had paid the price, a perfon become bail for
the delivery of the goods to him,— or if, in a cafe of pawnage, a perfon
become bail for the pawnee’s reflitution of the pledge,— or, in a cafe
of hire, for the renter’s reftoring the article hired,— in all thefe
cafes the bail is valid, becaufe of the furety having engaged for the
performance of-what was due and incumbent.
I f a perfon hire a quadruped for the carriage of a burthen, and another
be bail for the animal carrying the faid burthen, it is not valid,
becaufe of the animal being the property of another.— This, however,
proceeds on a fuppofition of the hire having related to a .fpecific animal;—
for,, if the animal be not fpecific, the bail is ; valid, as ,in that
cafe it is in the power of the furety to fupply an animal of his own for
the carnage of the burthen. In the fame manner, in cafe of a perfon
hiring a Have for fervice, bail given for his performance of the fervice
is invalid, as the flave is not the property of the furety, and he has
oonfequently.no power of enforcing what he has undertaken.
A contract of bail is not-valid unlefs it.be formed with the con-
fent of the claimant.— This is according to Haneefa arid Mohammed.
Aboo
L . 5S5
.— Aboo Toofaf alleges that a contract of bail is valid, if, having been the content of
formed without the knowledge of the claimant, it receive his affent
on its being notified to him; and (according to feveral Copies of the
Mabfoot) his aflent is not a condition.— This difagreement relates
equally to bail for the perfon, and bail for property.—The reafoning of
Aboo Toofaf, in fupport of his opinion, is, that as bail fignifies an obligatory
engagement, it is therefore binding on the perfon who undertakes
i t ; and hence it would appear that it does not depend on the
affent of the claimant: but the reafon for fufpending it upon his concurrence
is the fame as occurs under the head of marriage, treating of
Fatoolee marriages; “ T h e declaration of the furety that he has be-
“ come bail for a particular thing, on the part of a particular perfon,
“ renders the contract complete ; but as it is a deed affedling the
“ claimant, (inafmuch as it invefts him with a right to a claim,) it is
“ therefore fufpended upon his affent.”— T h e reafoning of the other
two doctors is that bail creates a right; in other words, the furety con-
ftitutes the claimant proprietor of a claim upon him, which he accordingly
demands from him after the completion of the contrail.—Hence
it follows that two points are neceflary to the completion of the contrail,
namely, the fpeech of the furety, (which is equivalent to a
declaration with refpedl to the claimant,)—and the Ipeech of the
claimant, (which is equivalent to acceptance.)—Now in the cafe in
queftion there exifts only one of thefe two requifites: the contrail,
therefore, is not fufpended beyond the meeting; and confequently a
contrail of bail is not valid but through the confent of the claimant
at the meeting;— excepting only in one inllance,— namely, where a
lick* perfon fays to his heir, “ be you bail for whatever debts I may except where
“ owe,” and the heir becomes bail accordingly in the abfence of the ^ debtoris
creditors; for in this cafe the bail is effeilual, notwithftanding the
abfence of the creditors, upon a favourable conftruition,— for two rea-
fons; F ir s t , the bail fo contraited is, in effedt, a will, arid is therefore
1 .
* Arab. M areez.— &k w^ys meaning a perfon fick o f a mortal illnefs.
V o l . II. 4 F Valid