property, he
mult make
the proprietor
a compenfa-
tion.
an adequate compenfation, and the proprietor (according to Haneefa)
has not the option of Iharing the mixed property, whether the mixture
be of a homogeneous nature, (fuch as milk with milk, wheat with
wheat, or white dirms with white dirms,) or of a heterogeneous nature,
(fuch as oil of fefame with oil of olives, or wheat with barley.)
T h e two difciples allege that where the mixture is of homogeneous
articles not of a liquid nature, (Inch as white dirms with white dirms,
or wheat with wheat,") the proprietor of the depofit has the option
either of becoming a ffiarer with the truftee, or of taking a compenfation
for the value;, becaufe although it be impoffible, in fuch a cafe,
for the proprietor to receive his right with refpedt to appearance, fill
it is poffible for him to receive it with refpedt to reality, (that is, in
effeB,) by making a divifion, lince, in all articles of weight, or mea-
furement of capacity, a delivery by divijion is equivalent to a delivery
of the adtual article, according to all authorities.— Such, therefore,
being the cafe, it appears that mixture, in the inftance in queftion, is
a deftruction in one refpedt, but not a deftrudtion in another refpedt;
and confequently, that the proprietor of the article placed in depofit
has the option either of taking a compenfation on the principle of the
mixture being a dejlruclion, or of becoming a ffiarer (if he pleafe) on
the principle of its not being a deftrudtion.— The argument of Hdneefa
is that mixture is in every refpedt a deftrudtion, becaufe of its being
an adtion which occafions an impoffibility of returning the thing to the
proprietor in its original fubftance.— In regard to what the two
.difciples advance, that “ it is poffible for the proprietor to receive his
“ right with refpedt to reality, by means of a divifion,” it is anfwered
that the proprietor cannot attain his aBual right by means of divifion.
Befides, divifion has been inftituted from neceffity, merely as a mode
of advantage in cafes of partnerffiip. Divifion, therefore, is merely
an effeB of partnerffiip, and is incapable of being a caufe of it, for
.otherwife the principal would become fecondary, and the fecondary
principal.— T h e refult of this difagreement is that if the proprietor
ffiould exempt the truftee, where he makes the mixture, by faying
to
to him “ I exempt you, from the compenfation due by you on ac-
“ count- of the mixture,” in that cafe,, according to Haneefa, his
right becomes entirely cancelled, fince (agreeably to his tenets) the
proprietor’s right is limited to the compenfation, which he. ex-
prefsly foregoes whereas, according to the two difciples,« the ■
proprietor’s right of option to a compenfation. ceafes in.confequence of
&ch exemption, and refolves itfelf into a ffiare in the mixed property;,
becaufe although, by the exemption, his right o f option be deftroyed,
Hill his aBual property is .not deftroyed.— I t is to be obferved. that the
mixture, of one liquid, with a different liquid, (fuch as of oil of Sefame
with oil of olives) dertroys-the right- of the proprietor to a participation,
in the mixed property, and fixes and determines it to a compenfation,
according to all our dodtars, as fuch. a mixture is a deftrudtion with
refpedt both to appearance and reality,, fince a.divifion is in this inftance
impradticahle,. becaufe o f the difference of lpecies.— O f the fame clafs,
according to the Rawdyet Sahech, are all cafes of an admixture of different
articles, not liquids,, where the feparation is difficult; as in the
mixture of wheat with barley.— In cafes where, the,feparation requires
a procefs,. or is.at-tendfed with feme difficulty,, (fuch as-if dirms ffiould
be melted and incorporated with others,), the depofitor’s right to the.
fubftance ceafes, and he is entitled to a. compenfation, according to
Haneefa,. as, before ftated. Aboo Yoofaf holds that in this, cafe the
fmaller is fubordinate to the greater, (for, according to his tenets, ffu-
penonty muft-be regarded,)-and that, therefore, theperfon who pof-
feffed the. largeft ffiare of the property becomes proprietor of the
whole, and liable to compenfate. to the other for the value, of his
quantum.— Mohammed, on the other hand; maintains that, the proprietor
of the depofit becomes a participator with the -other in either
cafe, becaufe, according to his tenets, fpecies. cannot acquire a fu-
p.eriority over the fame lpecies, aa-has-heen already explained in .treating
of fofterage..
Ip a depofit be mixed with the property of the truftee, not by Ifthemix-
any adt-of the latter, but by accident, (as if a bag containing the de- fioM^byac-"
polît c^entj