unlefs he be
competent to
undertake it.
T h e manager
is at liberty* to
a ft with the
flock accordin
g to his own
dilcretion,
and' therefore his pofleflion of it is deftruilive of the validity of the
contract.— But if the party be competent to receive flock, and ait as.
a manager, then the contract in queftion would not be invalid;— as
where, for inftance, a father, or a guardian., gives the property of his
infant charge to any perfon, to manage in the way of Mozdribat, fti-
pulating that he himfelf, in exchange for a certain lhare of the profit,,
lhall join in the management of the flock;— in which cafe the contrail
is valid ; becaufe, fuch a perfon being himfelf entitled to undertake
the management of the infant’s property, in the way of Mozdribat,
is'equally entitled to join in the management of it in the way
of Mozdribat, with others.
As contrails of Mozdribat are abfolute, that is to fay, are not re-
ftridted to time, place, or other circumftances, it is therefore lawful
for the manager to purchafe or fell, or to eat of, or travel with, the
flock: or to lodge it, either as a Bazdt or a depofit; becaufe the contrail
is unreftridted; and the objedt of it 4$. the acquifition of profit;
and as this cannot be accomplifhed but by trade, the contrail of courfe
extends to every occurrence in commerce; and the appointment of
an agent, or the giving property by way of Bazdt, or the depofit of
property, are all occurrences of commerce;— and in the fame manner,
travellmg is evidently fo, becaufe a trtlflee, who has no power of action
with refpeil to his truft, has yet a power of travelling with it,
and therefore a manager, who has the power of ailion with regard
to the flock, is entitled to travel with it a fortiori — befides, the
word Mozdribat in itfelf implies this power, as it is derived from
Zirrib, which fignifies to walk on the ground, or, in other words, to
■ travel.— It is recorded from Aboo Toofaf that a manager is not at liberty
to travel; and he has alfo related an opinion of Haneefa, that if
the proprietor fliould give the flock to the manager in his own city,
the manager is not in that cafe at liberty to travel, becaufe to travel
with property is an unneceflary endangerment of i t ; but that, if the
proprietor give the flock to him in fome other city than his own, he
5 may
Chap. I. M O Z A R I B A T
may then travel to his own city, becaufe it is not likely that a man
fhould continue always travelling; and as the proprietor knowingly
gave him the flock in another city than his own, it may be prefumed
that he thereby confented to his travelling with the property to his
own City.
It is not lawful for a manager to make Over the flock to another, buthecannot
in the way of Mozdribat, unlefs with the confent of the proprietor,' “ other in the
or unlefs he fhould have empowered him to ail according to his own manner of
. ■ . . . . . . Ej j r , . ° Mozdribat.
judgment and dilcretion ; becaufe a thing cannot include its like, without the
fince both being of equal force, one cannot yield to the other.— confent'r'*
Hence it is necefiary either that an exprefs permiflion fhould have
been given, or an abfolute and difcretionary power have been delegated.—
This cafe, therefore, is fimilar to that of the appointment of
an agent; for one agent has not the power of appointing another
agent, unlefs the conftituent fhould have faid “ a il acco'rdino- to
“ your own judgment and difcretion.”— It is different with refpeil
to the depofiting of property, or giving it by way of Bazdt, becaufe
thefe ails are lawful to a manager, as they are of a nature inferior to
a contrail of Mozdribat, and a thing may include its inferior.
It is not lawful for a manager to grant a loan to any one put of the nor w i t to
Mozdribat flock, although the proprietor may have faid to him “ a il fhouT’hfs1'
“ according to your own difcretion;” becaufe the proprietor o f the powers be dif-
ftock, in giving this difcretional power, means to give a latitude with ’ l°" ’
refpeil to fuch things only as are relative to trade; and a loan is not
conneiled with trade, but is a gratuitous deed, in the fame manner
as charity, or a g ift; wherefore, by giving a loan, the objeEl (namely,
profit^) cannot be obtained, fince to receive back more than what is
Jent is not lawful.— Giving property in the way of Mozdribat, on the
other hand, is in the nature of trade, and therefore a manager in fuch
a cafe may give the flock which is the fubjeil of it, by way of
Mozdribat, to another, provided the proprietor have empowered him to
F f 2 aft