M O Z A R I B A T . , B o o k tXXVil.
being valid: but if one or both of them be invalid, then the primary-
manager is not refponfible, though the fecondary manager fhould
have a£ted with regard to the property; 'becaufe, in fuch cafe, the
fecondary manager is confidered as a hireling, entitled to an adequate
hire, and not to any fhare in the profit. Mohammed, in the Mabfoot
obferves that, in cafe of the validity of the Mozdribat, the primary
manager becomes refponfible; but he has not Rated the confequences
with regard to the fecondary manager.— Some have laid that he is not
refponfible, according to Haneefa, and that he is fo, according to the
two difciples; proceeding on the different opinions which they have
maintained with regard to the truftee of a truftee,— Haneefa holding
the principal and not the fecondary truftee to be refponfible; and the
two difciples holding the proprietor to be at liberty to take the com-
penfation from which ever he chufes ; and fo alfo in the cafe in quef-
tion.— Others, again, have faid that the proprietor is at liberty, in the
opinion of all our doctors, to take a compenfation either from the
principal or the fecondary manager; and this is the.common opinion.—
This is evidently the opinion of the two difciples, becaufe, according
to them, a fecondary truftee is refponfible:— and it is alfo evidently
agreeable to the opinion of Haneefa ;■ becaufe the principal manager
was guilty of a tranfgreflion, in giving the flock to the fecondary manager
without the proprietor’s permiflion; and the fecondary manager
was alfo guilty of a tranfgreflion, in taking pofleflion of the property
of another without his confent.— Refpedling the two cafes of. a manager
and a trufiee, the difference between them, according to Haneefa,
is that the fecondary trufiee takes pofleflion of the depofit with
a view to the benefit of the principal truftee, and is therefore not refponfible;—
whereas the fecondary manager feizes the -flock with a
view to his own profit; on which account it is proper to make him
refponfible. It is to be obferved that, upon the primary manager becoming
refponfible for the flock, the contrail of Mozdribat between
him and the fecondary becomes valid; and the profit is participated
between them agreeably to their flipulation; becaufe the primary
.3 manager
C h a p . II. M O Z A R I B A T .
manager becomes proprietor of the Mozdribat flock, in confequence of
his refponfibility, from the time that he exceeded his authority, by
making it over to another without the owner’s confent, whence it is
the fame as if he had fo- given his own property.— If the proprietor,
on the other hand, fhould require the indemnification of the fecondary
manager, then the fecondary muft revert for fatisfadlion to the primary
manager, becaufe of their contrail of Mozdribat, as he ails on
behalf of the primary manager;— in the fame manner as where a proprietor
takes a compenfation from the truftee of an ufurper, in which
cafe the truftee has recourfe to the ufurper; and fo likewife in the
cafe in queftion : and alfo, becaufe the principal manager deceived
him in the body of the contrail. And in this cafe alfo the contrail of
Mozdribat between the primary and fecondary managers is valid, be-
eailfe refponfibility ultimately falls upon the primary manager, and it
is therefore the fame as if the proprietor had .taken a compenfation
from him f i r f t b u t the profit, in this cafe, is fair and lawful to the
fecondary, and not to the primary manager; becaufe the fecondary is
entitled to the profit on account o f his management, in which there is
no bafenefs; but the principal is entitled to profit merely from his
right o f property, which, being founded, only on the payment of the
eompenfatidn, is not altogether free from bafenefs, fince a right of
property merely conftrubiive is in one fhape eftablifhed, but in another
fhape it is not eftablifhed.
If a perfbn give property to another by way of Mozdribat, on
condition of half the profit, and with permiflion to him to give the
property to another in the way of Mozdribat, and the manager, accordingly,
give the faid property to another by way of Mozdribat, on
condition of a third of the profit; and the fecondary manager employ
the faid flock, and acquire profit upon it, in that cafe, if the proprietor
fhould have faid to the firft manager, ‘ "Whatever advantage
G o d Almighty may grant upon it is between you and me in an
equal degree,” then a half of the whole profit is due to the proprietor,
Cafe o f a
manager en-
trufting the
flock to a fecondary
manager,
with
the proprietor’s
concurrence.