but the obligations
they
enter into are
not binding
upon them,
but upon their
conjiiliient.
G on crafts
.concluded by
agents are
• either fuch as
the agent refers
to himf
‘ !fy
is capable of ailing, and is the mailer of his aitions when they relate
to himfelf, though not if they relate to his mailer; but agency for
another does not relate to his mailer. T h e appointment of the infant
or have, therefore, is valid.— T h e y are neither of them, however,
capable of performing the obligations of the contrail;— the infant, be-
caufe of his want of competency;— and the flave, becaufe it would
interfere with the rights of his mailer;— the performance of the contrail,
therefore, rells with the conllituent.— It is related as an opinion
of Aboo Toofaf, that i f an infant, or a Have, as above delcribed, Ihould
make a fale, and the purchafer, being ignorant of their lituation,
Ihould afterwards be informed of it, in that cale it is in his option to
annul the contract,— becaufe having concluded the bargain on a fup-
pofition that they were competent to fulfil the rights of it, and being
afterwards informed that the rights of the contrail did not reft with
them, he becomes of confequence entitled to annul it in the lame
manner as if he had dilcovered a defeil in the fubjeil of it.
T h e contrails concluded by agents are of two kinds.— F i r s t
fuch as the agent refers to himfelf; and which do not depend, in any
degree, on the conllituent; as in the cafes offale or hire, which relate
to the agent and not to the confiituent.— (Shcfei maintains that the
rights of fale appertain to the confiituent; becaufe the rights of a contrail
of fale are dependants of the effects of it ; and as the efe£l,
namely, right o f property, appertains to the conllituent, fo in the
fame manner its dependant alfo appertains to him: an agent for lale
therefore, is the-fame as a mejfenger, or an agent for marriage.— T h e
arguments of our doitors are that an agent is the contrafling party,
both in reality and in effeil:— in reality, becaule the contrail is formed
by fpeech, and the Ipeech of the agent is authentic becaufe he is a
man: and in ejfebl, becaufe, being himfelf competent, there is no
neceflity for the reference of the rights of the contrail to the confti-
-tuent; whereas, i f he were merely a mejfenger, he would not be exempt
from the neceflity o f referring the rights of the contrail to the
conllituent,
conllituent, as is the cafe with a meflenger.— Now fince fuch is the
nature of agency, it follows that an agent is confidered as a principal
in regard to the rights of the contrail; and hence Kadooree, in the
treadfe which bears his name, fays “ an agent for fale delivers the
“ goods and takes pofleflion of the purchafe money, and. is liable to
“ be fued for any defeil in the fubjeil of the fale;— and,, on the other
hand, “ an agent for purchafe receives the goods, and delivers the
“ price, and may fue the feller for any defeil in the g o o d s —becaufe
all thefe are confidered as-the rights of fale. T h e conllituent, moreover,
is the proprietor of the thing purchafed through his agent, ab
initio ; in the lame manner as when a Have accepts a gift,, or catches
game, or gathers fire-wood; in all which cafes the mailer is proprietor
o f the gift,, of the game, or of the fire-wood, ab initio; that is to fay,.,
the property is not held firli to reft in the Have, and then to Ihift to-
him.— This doftrine of the primary exiftence of the right of property
in the conllituent is- approved:— contrary to Kaorokhec', who maintains
that,in. confequence of the purchafe,. the right o f property refts
originally in. the agent, and from him Ihifts to the conllituent;)—
S e c o n d l y ,, fuch as-the agent refers the performance of.to his confti-
tuent, and. in which he has an immediate intereft;, fuch as marriage,
Khoolas, or compofition for wilful murder;; in all which cafes, the
rights appertain to the confiituent and not to the agetit.— Hence no demand
can be made on the hulband’ s agent for the dower; nor-can the
wfe^s agent be required to deliver over the dower to herhulband;;
for in thefe cafes the agent is a mere mejfenger, and is, not exempt
from the neceflity of referring the performance to his conllituent: for
i f the agent, in the cafe of marriage,, were to refer the performance to
himfelf, it would become his marriage, and not that of the confiituent-,
(whence the neceflity for confidering him as a mere mefenger.)__
The reafon of this is, that as none o f thefe contracts are o f a nature to
admit o f the agent EsEt adling in them,as a principal, he is therefore obliged
to refer them to the conllituent, and to aft himfelf as a mere rnef
finger.— Manumiflion for a- compenfation,. contrails of Kitdbat, and
7 compofitioRS
or to his con*
Jituent.