O bjection.— Although a dead perfon be not capable of being
bound, Hill an obligation may lie againft his heir, who is his fueceflbr
and reprefentative.
R e p l y .— The heir is not proprietor of the legacy, and cannot
therefore be fubjected to obligation on account of it.
A gift may If the donee take pofleffion of the gift, in the meeting of the deed'
feffionofoSf" of gift* , without the order of the giver, it is lawful, upon a'favour-
thefpotwhere ay e conftrudtion.— If, on the contrary, he fhould take pofleffion of
it is tendered, ^ 1 1 , . r \ . • • i r i
without the the gift after the breaking up or the meeting, it is not lawful, unleft
o f t^dom»- ^ave had t^le c°nfent ° f the giver fo to do.— Analogy would fuggeft
but not after- that the feizin is not valid in either cafe, as it is an adt with refpedt to
wards. n i r • A what is ltill the property of. the giver \ for as- his- right of property
continues in force until- feizin, that is confequently invalid without
his confent. T h e reafon for a. more favourable conftrudtion o f the
law, in the inftance in. queftion, is. that feizin, in a cafe of gift, is
fimilar to-acceptance in fale, on this confideration, that in the one the
effect of the deed (that is, the eftabliffiment o f a right o f property.)
refts upon the fei%in, and in the other upon the acceptance.— As,
moreover, the objedt of a gift is the. eflablilhment o f a right o f property,
it follows that the tender, of the giver is, virtually, an em-
powermentr of the donee to take pofleffion.— It is otherwife where the
feizin is made after the breaking up of the meeting; becaufe our doer
tors do not admit of the eftabliffiment of the power over the thing but
when feizin is immediately conjoined with, acceptance;.. and as the
validity of acceptance is particularly reftridted to the place of the meeting,
fo alfo is the thing which is*conjoined.with it.— It is alfo otheri-
wife where the giver prohibits the. donee from-, taking pofleffion
in the place of meeting, for in that cafe the feizin of the donee
in the place of the meeting would- be invalid, as arguments of
* A rab. M a jlis A k ii a l Hibbas,— meaning,, the glace where the deed is executed-.
implied
implied, intention cannot be put in competition with exprefs declaration.
*A g if t of part of a thing which is capable of divifion is not
valid unlefs t-he faid' part be divided off and feparated from the property
of the donor:: Jbut a. gift of part of an indivijible thing is valid.
Shafe'i maintains that the gift is valid in either cafe ; becaufe a- rift
is a deed, conveying property, and- valid,, as fuch,. with regard either
to things that are connected or feparated ; in the fame manner as in
fale,— T h e ground of this is that as an- indefinite ffiare has the capacity
to conftitute property,, it is confequently a fit fubjpdt of gift: nor
is a voluntary deed rendered- null by the indefinitenefs of the fubjedt of
it; as in. a Karz-loan,, for inftance, where a perfon gives another one
thoufand dir ms, of which one half is. to ba in. the nature of a loan,
and the other of copartnerfhip; or as in bequeji,\ or in the gift of tn-
divi/ible things.— The arguments pf our dodtors upon this point are
twofold..— F i r s t , feizin in. cafes of gift is exprefsly ordained,, and
confequently a complete feizin is a neceflary condition : but a complete
feizin is impradlicable with refpedt to an indefinite part of diviftble
things, as it is impoffible, in fuch, to make, feizin of the thing riven
without its conjunction with fomething that is not given; and that is
a defedtive feizin.— Secondly, if the gift of part of a divifible thing,
without feparation, were lawful, it muft neceflarily follow that a
thing is incumbent upon the giver which he has not engaged for,_
namely, a divifton, which may poffibly be injurious to him; (whence
it is that a gift is not complete and valid until it be taken.pofleffion of;
fince.if it were valid before feizin, a thing would be incumbent upon
the donor which he has not engaged for,— namely, delivery.)— It is,
otherwife with, r.efpedt. to articles o f an. /»divifible nature;, becaufe in
A gift made
from di<vt-
Jible property
mull be divided
off;-—
but not a gift
made from
/»divifible
property.
* A (mail portion o f the text immediately preceding, which relates to-words fynonimous,,
either direftly, or by implication*, to-the word i » f o , ..or gift, has been neceffarily omitted,
»n the tranflation..
thofe.