thofe a complete feizin is altogether impraflicable, and hence an incomplete
feizin mnft neceflarily fuffice, fince this is all that the article
' admits of-;-— and alio, becaufe in this inftance the donor does not in*
cur the inconvenience of a divifion;
O b j e c t i o n .— Analogy would fuggeft that .the gift of a part of ati
indivifible article is invalid; 'becaufe, although the donor do not, in
fuch a cafe, incur the inconvenience of a divifion, lti-11 he incurs a
participation in the property; and this allb is a fort o f inconvenience.
R e p l y .— The donor is fubjefled to a participation in a thing
which is not the fubjefl of his grant, namely, the ufe [of the whole
indivifible article,] for his „gift related to the fubjlance o f the article,
-not to the ufe of it :— hence the neceflity of a participation is not incurred
by him with refpe& to the thing which is, properly, the fubjed
of his grant.
— With refpefl to the analogy advanced by Shafe'i between the cafe in
queftioti and that of /farz-loan, or bequeft, it is totally unfounded;
becaufe in bequefts the feizin [of the legatee] is not a neoefiary condition
; neither is it fo in a valid fale;— and although feizin be requilite
in Sillim and S ir f fales, ftill it is not ordained with refpeft to them,
and hence is not required to be complete in thofe inftances. Befides,
as all thofe contrails [of fale] are contrails of refponfibility, the obligation
of a divifion is agreeable to them.— With refpedt to a Kar%-
loan, it is a voluntary contrail in the beginning, but a contrail of refponfibility
in the-end (fince it involves refponfibility for a Jimilar',)
and hence, in confideration of its refemblance to both, an incomplete
feizin is made a condition in it, not a divifion: befides, feizin is not
efpecially ordained in this inftance.
If a perfon make a gift, to his partner, of his fhare in the partner-
fhip-ftock, capable of divifion, it is invalid, becaufe of the invalidity
of the gift of an undefined part of a divifible fubjefl, as before explained.
I f
If' a perfon make a gift, to another, of an undefined portion of
land, (fuch as an half, or a fourth f fuch gift is null, for the reafons
already fet forth.—If, howeyer, he afterwards divide it off, and make
delivery of it,, the gift becomes valid; becaufe ,a gift is rendered complete
by feizin; and in this cafe nothing elfe remains indefinitely involved
with the gift at the time of feizin..
If a perfon. make a gift of the flour of wheat, which is yet in Agiftofan
<irain, or of oil of-Seffamé which is not yet exprefled from, the feeds,
fuch gift is invalid ; and if he afterwards grind the wheat into flour, pther article
e r extract the pil from the Seffamé feeds, and fo deliver them to the valid. m
donee, ftill the gift is not thereby rendered valid.—The fame rule
alfo holds with rèfpedl to butter which is yet in milk-—The reafbn
©f this is that the thing given, in all thefe cafes, is a nonentity;
(whence it .is that if an ufurper of wheat, or of feeds, Ihould either
grind the one into flour, or prefs the other into oil, he then becomes
proprietor of them;); and as a nonentity cannot be a fubjeft of property,
the deeds in queftion are therefore null, and cannot afterwards
be rendered valid otherwife than by being executed de novo.— It is different
in the preceding café, becaufe an undefined portion of any thing
is neverthelefs capable of 'being transferred.
T he gift of milk in the udder, of wool upon the back of a goat,,
of grain or trees upon the ground, or of fruit upon trees, is in the
nature of the gift of an undefined, part of a thing, becaufe in thefe infiances
the caufe of invalidity is the conjunction of the thing given with
what is not given, which is a bar to the feizin, in the fame manner,
as in the cafe of undivided, things..
If the thing given be in the hands, of the donee,, in virtue, of a g;ft of a
truft, the gift is in that cafe complete, although there be no formal ,dePoiit.to the
teizin, Imce the actual article is already m the donee’s hands, whence lid without a
hiss feizin is not requifite. It is otherwife where a depofitor fells, the ver^'lLfd'1'
4 - depofit