S E C T I O N .
O f T A K H A R I J*
thetera" °f T akhI rij , in the language of the l aw , figuifies a compofxtion
entered into by fome heirs with other heirs, for their fhare of the in-
heritance, in confideration of fome fpecific thing, which excludes them
from inheritance.
H e ir s m a y I f the eftate of a perfon, confifling of land, or of goods1 and effects
w i th a c o -h e i r be liable to be fhared among feveral heirs ; and the heirs compound
o°frinheritare with one amongft themfelves for his fhare of the inheritance, by
a n c e , c o n fift - giving him fome fpecific article, fuch compofition is lawful, whether
m g o f la n d o r .1 . i * • . r . . . . . , . . . , _
e fe a * , by the thing given be luperior or inferior to his right; becaufe it is poffible
aenyt/qU1Va’ to lega^zo this compofition, by conftruing it in the nature of a fale-,
and alfo, becaufe it is related that, in the time of Ofman, Tamdzir, the
wife of Abdul-Rihmdn, the fon of A u f who had been divorced by
her hufband in his laft illnefs, compounded her fhare of the inheritance,
which was a fourth of the eighth, for one h a lf of the fourth
of an eighth; as is evident from this circumftance, that Abdul-Rihman,
who, befides children, had four wives, left an eftate of five millions
three hundred and twelve thoufand deenars; and the fhare fhe
received was eighty three thoufand deernrs, which is one h a lf o f the
fourth o f an eighth. .
In the fame manner alfo, if the eftate confift of filver, and gold be
given to one of the heirs as a compofition,— or, i f it confift of gold,
and a compofition be given in filver, it is valid, whether the thing
given be inferior or fuperior, becaufe this is a fale of one fpecies for
7 another,
o r / b y one
p r e c io u s
m e t a l , jv h e r e
th e in h e r it
a n c e is in ,
a n o th er p r e c
io u s m e t a l .
another, and in it the condition of equality between the confideration
.and the return is not required.— It is requifite, however, that the
fubjects of the compofition he mutually interchanged and taken pof-
feffion1 of by the parties at the place where the contraft of compofition
is concluded; for this is a S irffale, and in it mutual feizin at the meeting
is a neceflary condition.— But if the heir, in whofe pofleftion the
remainder of the eftate is, fhould deny the pofleftion, then the former
feizin.fuffices, becaufe it is a feizin p f refponfibility, (fince it is in the
nature of ufurpation,) and may therefore ftand for a feizin aicompofition.—
If, on the contrary, he fhould acknowledge the pofleflion, then
it is neceflary that a new feizin be made; becaufe the feizin, in that
cafe, being in the nature of a trufi, and confequently unattended with
refponfibility, is weak in comparifon with a feizin of compofitiori, which
is attended with refponfibility, and therefore cannot be fubftituted in
the place of it.
If the eftate confift of gold, filv er, goods, and ejfedls, and the heirs
compound the fhare of one amongft themfelves for filver or for gold-,
it is in that cafe requifite that the gold or filver given in compofition be
fomewhat greater than his fhare of the gold or filver by inheritance.,
in order that, after oppofing an exaft equality of the two fimila-r fpe-
cies to each other, there may remain fome excefs to oppofe as a .compofition
for his fhare of the other articles, to the end that the Imputation
of ufury may be avoided.— In this cafe, alfo, it is requifite that
pofleflion be taken, at the meting, of the thing oppofed to his fhare
of the gold or the filver, becaufe the compofition to that extent is con-
fidered in the nature of a S'trf fale.— If, in the cafe in queftion, the
compofition be made for goods and effelIs, it is lawful, abfolutefy,—
t at is, whether feizin be made by the parties at the meeting, or
otherwife, and whether the thing given in compofition be itferior or
fuperior to the fhare of the inheritance.
A n in h e r i t a
n c e o f b u llio
n an d e ffe fis
m a y b e com *
■ pounded fo r
b y g o ld o r
J ilv e n h u t
th is g o ld o r
i i lv e r mu ft
e x c e e d th e
fli a r e p f th e ,
fam e m e ta l
•in h e r ite d ;
an d th e h e i r
m u ft b e p u t
in p o fle f lio n
o f fu c h e x c e f s
a t th e t im e o f
a d ju f t in g th e
com p o fit io n .
I f