ri (hes in the
ufurper*$
hands.
C O M P O S I T I O N . B o o k XXVI.
dir ms previous to any judicial decree upon the fubjedl, in that cafe the
compofition is, lawful, according to Haneefa. The two difciples
maintain that the compofition, in this cafe, is not lawful in the degree
in which it exceeds the appraifed value of the cloth ; becaufe
nothing was due from the ufurper but the value ; and the-value of
any article is to be known only by appraifement ; any thing beyond
that muft therefore be confidered as ufury.— It is otherwise, however,
if the compofition for the cloth be made in articles offurniture,
or fo forth, exceeding in value the article ufurped ; for fuch compofition
is valid, becaufe the difference of the value not being obvious,
from the articles being of a different genus, no ufury ean be inferred.
It is otherwife, alfo, i f the difference of value be fuch as may come
within the eftimation o f feme o f the appraifers, becaufe the obfervance
o f an excejftve degree of caution is impraticable. T h e reafoning of
Haneefa, in fupport of his opinion, is that the right of the proprietor
of an ufurped article continues in it after its deftruftion, until his ri°ht
to an equivalent be eftablifhed; as is evident from this circumftance,
that if an ufurped flave fhould die, and the mafter refufe to accept an
equivalent, he muft in that cafe defray the expences of his burial.
Now from this it appears either that the right of the proprietor of an
ufurped article remains in it after its deftruaion,— or, that he has a
right, if he chufe, to a fimilar, both in appearance and in rèality * ,
becaufe reparation for a tranfgreflion muft be made in a fimilar.— But
his right is not transferred to the value until fuch time as the Kâzee
pafs a decree to that efFeft : any agreement, therefore, exceeding the
value, which the parties themfelves may conclude previous to fuch
decree, being merely a compenfation for the article deftroyed, or for
one fimilar to it in appearance and reality, cannot be confidered as
ufurious.— It is otherwife if fuch agreement be made efter the decree
o f the Kâzee; for, in that cafe, according to all our doctors, theeom-
pofition is not valid, as far as it exceeds the value ; becaufe, in this
* Indépendant of any judicial decree.
inftance,
inftance, the right of the proprietor to the value has become fixed and
determined by the decree of the Kdzee; and any thing beyond it is
therefore ufurious.
I f a man who is rich emancipate a flave held equally in partnerlhip Cafe o f com
between himfelf and another, and compound with that other for a
fum exceeding the value of his half, fuch compofition is invalid, ac-
■. A ~ Jla-ve.
cording to all our do&ors:— according to the two difciples, becaufe
(as they hold) nothing is due from the emancipator beyond h a lf the
Value, which isr to be afcertained by appraifement; whence any degree
beyond that is ufurious:— and, according to Haneefa, becaufe
the value, in emancipation, is decreed by the l a w ; now the rate
fixed by the L a w is not Ihort of the rate fixed by the Kdzee; and as, .
in a cafe where the Kdzee pafles a decree for the value, a compofition
for any thing beyond the value is null, it is in the prefent inftance null
a fortiori.— It is Otherwife in the example concerning the cloth, as
before recited, becaufe the value of that is not decreed by the l a w .—
It is to be obferved that if, in the cafe in queftion, a compofition exceeding
the value of half the flave be made in fpecific goods or effects,
it is valid, becaufe the excefs in the value is not obvious, where
the articles are of a different genus; and hence no ufury can be
inferred.
C H A P .