202 C O M P O S I T I O N . B o o k XXVI.
O n e o f tw o
p a r tn e r s r e c
e iv e s his
ill a r e b y
u fu r p in g a n y
th in g 'f r um .
th e d e b to r ;
®r, b y lo f in g
o r d e l l r o y in g
a n y th in g b e l
o n g in g to
h im ;
o r , b y a c c e p t in
g a le a fe in
c om p o iit io n ;
o r , b y b u r n in
g a p ie c e
o f clo th , his
prope rty».
O n e o f tw o
p a r tn e r s ann
u ls h i s (hare
b y m a rry in g
th e d e b to r
( b e in g a f e m
a le), an d
f e t t l in g his
fh a r e o f th e
d e b t as h e r
d ow er y
o r , b y comp
o u n d in g w i th
i t f o r a n o f fe
n c e ..
a partition of the f l iaresand a partition of debt previous to feiziti is
not lawful; becaufe partition bears the fenfe of endowment w ith a right
o f property, and the endowment with a right in a debt, made to any
other than the debtor himfelf, is not lawful.— Moreover, partition implies
diftindtion; and as diftindion cannot exift with refped to any obligation
upon the perfon, it is therefore, in valid.
If one of two partners ufurp fotne fpecific article from the debtor,
or purchafe fomething from him by an invalid contract, and lofe or
deftroy the lame, thefe ads are confidered as equivalent ton receipt of
his debt.— So alfo, if one of two partners 'accept a leafe from the
debtor in lieu of his debt, he -is in that cafe held to have received his
debt. If, alfo, one out of two partners Ihould burn a piece of cloth
belonging to the debtor of equal value with his ifhare of the debt-, this
is a receipt, according to Mohammed, but not accordingTo Aboo Yioofcf.
(Some, however, obferve that this difference proceeds on thefuppofi-
tion of his having thrown fire on the- cloth, without having previ-
oufly laid hold of i t ; for if he Ihould have firft laid hold of the cloth,
and then burned it, all our doctors are:of opinion that he has received
his fhare, becaufe he is confidered firft to have ufurped the cloth, and
then to have defrayed it.)
I f the debtor be a female, and one of two -partners in -the debt
Ihould marry her, and ftipulate his fhare of the debt as her dower*
this, according to the Zdhir Rawayet, is an annulment:— and fo
alfo, if he compound, with his fhare, for a wilful offence.— It is,
however, to be obferv.ed, that i f one of the partners in a debt Ihould
marry the woman who is their debtor, without ftipulating his fhare of
the debt as her dower, in that cafe the other fharer has a claim upon
him, as under fuch circumftances he is held to have made a commutation
with his wife of his claim for hers. It is otherwife where he
ftipulates his fhare of the debt as her dower; for then he is held to
have annulled,, and not to have commuted his right, and on this account
the
the other fharer can have no future- claim upon him.— It is an invariable
rule that, where a receipt has been made, by one partner, the
other partner, in cafe of the deftrudion of his right, by the debtor’ s
dying infolvent, or otherwife, is entitled to participate with the receiving
partner :— but he has not fuch right in the cafe of an annulment.
If IWU X J - o ---
debtor (fuch as cloth, for inftance) in lieu o f his fhare of the d'ebt,
then the other partner is at liberty, either to require his fhare of the
debt from the debtor, (in which cafe all the effeds take place, as deferred'
in the preceding example, where the partner requires payment
from the debtor,)— or, to take an equivalent from the purchafer of a
fourth part of the debt;— becaufe he [the purchafer]' has taken complete
poffefiion o f his debt, fince in buying and felling there is no degree
of lofs or difparity admitted in the things exchanged.-— Hb therefore
is refponfible for a fourth part of the debt, and'has no option of
either giving a quarter of the debt, or a half of the cloth.— It is other-
wife in a compofition, becaufe, as compofition generally proceeds upon
a principle of lenity-md abatement, it would be an injury to the compounder
to force him to give a fourth part of the debt, and therefore
an option is afforded him either to give a fourth part of the debt, or the
half of the article received in compofition.— T h e non-receiving partner,
moreover, is not entitled to any part of the cloth pui-chafed, as
the purchcfng partner has become proprietor of the fame in virtue o f a
contrad offale.
O b j e c t i o n .— The cloth in queftion ought to be divided between
the two partners, as it has been acquired in exchange for a joint
debt. ' ' ‘ •
R e p l y .— The cloth in queftion has not been acquired in exchange
for a joint debt, but merely in exchange for the fhare of the purchafer,
in this way,' that it produces a commutation of the price of the
cloth for that part of the debt which is due to him.
D d 2
p a r tn e r s c om -
p o u n d in g h is
fh a r e o f th e
d e b t b y a
p u rch a fet th e
o th e r m a y
e i th e r ta k e
h is ih a r e from
th e d e b to r ,
o r an e q u i v
a le n t fo r h is
p ro p o r t io n in
th e r e c e ip t
fr om th e
p u r c h a fe t.
O b j e c t i o n *