Evid ence to
prove a contradt
is annulled
b y any
difference
with refpedt
to the te ms o f
the con trad ,
the due. quantity of-evidence (namely, that of two witnej/es).does not
appear with refpeCt to either allegation of theft.—It is therefore the
fame as i f two perfons were to teftify that a certain perfon had ufurped
the cow of fuch a perfon, but to difagree with refpedt to the colour of
the cow ;rr*in which cafe the evidence ;of both would be rejedted; and
fo alfo in the prefect inftance, a fortiori, becaufe the penalty annexed
to theft (namely, amputation) is of a moll grievous nature. Hence a
difference of the witnefies with refpect to the colour is the fame as a
•difference with refpedt to the gender.— The argument of Haneefa is,
that in a cafe of difference between the witnefies concerning the colour
of the animal, it is poflible to reconcile the contradiction by fuppofin-o-
.the witnefies to have viewed the cow from ^ diftance, and in the nighttime,
fince thefts are moll commonly perpetrated at that feafon ;—
and colours are of a deeeptious nature:— cattle, moreover, are often
pye-balled; and it is therefore poflible that the cow may be black on
one fide, which was feen by one of the witnefies, and white on the
-other fide, which was feen by the other witnefs.—It is otherwife in a
cafe of ufurpation, fince that moft commonly happens in the day-time,
and confequently the fadt is moft probably feen in the light, and near
at hand. It is alfo otherwife with refpedt to the fe x of the animal,
fince two fexes cannot unite in the fame creature. Befides, a knowledge
of the fex requires a clofe infpedtion, and hence the cafe does not
.admit of uncertainty.
I f one perfon atteft that Zeyd had purchafed a flave for one thou-
fand dirms, and another that he had purchafed the faid flave for
fifteen hundred dirms, in that cafe the evidence of both is null; becaufe
the objedt of the evidence is to eftablifh a caufe of property,
namely, the contradt of fale; but the mention of two prices neceflarily
implies the exiftence of two contradls; and the proof of either of thefo
is defedtive, as there is only one witnefs to each. This cafe proceeds
on the fuppofition of the buyer being the plaintiff; but the effedt is the
fame in cafe of the claim having been made by the feller;— and it
.8 matters
C h a p . III. E V I D E N C E. 7°3
matters not whether, of the two fums attelled, the plaintiff claim the
largeft or the fmalleft; becaufe the proof is defedtive on either fuppo--
fition, for the reafon already explained.— T h e fame rule alfo holds,
with refpedt to. a contradt of Kitubat; that is, where a Mokdtibsxsd
his matter difagree with refpedt to the amount of the ranfom or con-
fideration of Kitdbat, and the two witnefies likewife difagree in their
teftimony, the evidence, in fuch cafe, is null, fince the objedt of it
(namely, the eftahlilhment- of the contradt of Kitdbat), is defedtive,.
for the reafons-already explained;— and this,, whether the mcfler or
the fa v e be the plaintiff. It is alfo the fame with relpedt to Khoola;
manumiflion. for a compenfation,. and compofition for wilful murder,,
provided the claim be preferred by the wife,, the flave, or the murderer;—
becaufe in all thefe cafes the objedt of the evidence is the fame,
(namely, the eftablilhment of the exiftence of a contradt,) and is.
defeated:by any difagreement of the witnefies.-— But if, in any of thefe-
cafes, the claim be preferred by the oppofite party, it then becomes'
equivalent to a cafe of debt, and the law takes place accordingly.—
Thus, if the claim be for one thoufand five hundred dirms, and one
of the witnefies declare it to be one thoufand, and the other one
thoufand five hundred,, in that cafe, according to all our dodtors, a
decree muft be- given for one thoufand dirms.— I f , on the contrary, the1
claim-be for two thoufand dirms, and one witnefs atteft to one thoufand,
and the other two thoufand, in tharicafe-nothing can be decreed,
according to Haneefa; whereas, according to the two difciples,.
one thoufand muft be decreed.:— The principle on which thefe cafes
refemble-debt is, that the pardon for murder, the freedom o f a flave,
or the divorce of a wife, is eftablifhed by the acknowledgment of the
perfon to whom each of thefe rights appertain.— -Hence,- in fuch cafe,
his claim o f debt only remains, and there is no occafion for the proof of
the Contradl.— In the cafe of a pledge, if one witnefs atteft that it was
pawned for one thoufand dirms, and the other that it was pawned for
one thoufand five hundred, and the claim be preferred by the pawner,
the evidence is .-in that cafe inadmifliblebecaufe the pawner has no
advantage.