H i
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H E D J T A .
B O O K x r x .
Of H AW A L IT .; or the T R AN S F E R of D E B T S .
terms'00" °f T T A W A L I T , in its literal fenfe, means a removal-, and is derived
J l JL from Tahool, which imports the removal of a thing from one
place to another.— In the language of the l a w it fignifies the removal
or transfer of a debt, by way of fecurity and corroboration, from
the faith of the original debtor, to that of the perfon on whom it is
transferred. The debtor or perfon who transfers the debt is termed
fitoheel: the transferee, or perfon upon whom the debt is transferred,
Mohtal-ali bee, and the creditor, or transfer receiver, Mohtal.
T he
Book XIX. T R A N S F E R O F D E B T S .
T he transfer of a debt is lawful; becaufe the prophet has laid,
“ Whebever a perfon transfers his debt upon a rich man, and the
“ creditor affents to the fame, then let the claim be made upon the
“ rich m a n and alfo, becaufe the perfon upon whom the debt is
transferred undertakes a thing which he is capable of performing;
whence it is valid, in the fame manner as bail.— It is to be obferved,
however, that transfer is reftricted to debt; becaufe it means an ideal
removal; and an ideal removal, in l a w , applies to debt, and not to
fubfance, which requires a fenfble removal.
A c o n t r a c t of transfer is rendered valid by the confent of the
creditor and transferee. The confent of the creditor is requilite, becaufe
the debt (the thing transferred) is his due; and mankind bein°-
of different difpofitions with refpeit to the payment of debts, it is
therefore neceflary to obtain his confent;— The confent of the tranf-
feree is alfo requilite, becaufe by the contract of transfer an obligation of
debt is impofed upon him,und fuch obligation cannot be impofed without
his confent.— The confent of the principal, On the contrary, is not
requifite, becaufe (as Mohammedobfervesin the Zeeadat) the engagement
of the transferee to pay the debt is an a£t relative to himfelf, which is
attended with a benefit to the principal, and is no way .injurious to
him, inafmuch as the transferee has no power of reverting to him, in
cafe of having accepted the obligation without his defire.
W hen a contract of transfer is completed, the Maheel, or perfon
who makes the transfer, is exempted from the obligation of the debt,
becaufe of the acquiefcence of the transferee.— Zijfer has faid that he
is not exempted, becaufe of the analogy which fubfifts between this
cafe and that of bail; for they are both contrails of fecurity or corroboration;
and as, in the cafe of bail, the perfon who is ‘ bailed
does not become exempted from the debt, fo neither ought the transferrer
in this cafe.— Our doitors, on the other hand, agree that Ha-
wdlit literally means removal-, and when a debt is 'removed from the
7 faith
607
T h e transfer
o f a debt
is rendered
valid by the
confent o f the
creditor and
transferee«
It exempts
.the debtor
-from any demand,