A houfe maybe
conveyed
in gift by tnvo
perfons to one;
but not by one
perfonto /avo.
refpedl to a mother, or any others having charge of her; becaufe
they are not entitled to poffefs themfelves of a gift in her behalf,,
unlefs the father be dead, or abfent, and his place of refidence unknown
; for their power is in virtue of neceffity, and not from any
fuppofed authority; and this neceflity cannot exift whilft the father is-
prefent.
If two perfons, jointly, make a gift of a houfe to one man,
it is valid; becaufe, as they deliver it over to him wholly, and he receives
it wholly, no mixture of property can be faid to exift at the time
of feizin.
If one man make a gift of a houfe to two men, the deed is invalid,
according to Haneefa. T h e two difciples hold it to be valid, becaufe
as the donor gives the whole of the houfe to each of the two donees
(in as much as there is only one conveyance) there is confequently no
mixture of property; in the fame manner as where one man pawns a
houfe to two men.— -The arguments of Haneefa upon this point are
twofold.— F irst, the gift, in this cafe,' is a gift of half the houfe to
each of the donees, (as is evident from this, that if one man give to
two men fomething incapable of divifion, and one of them accept the
fame, the gift becomes valid with refpedl to his fhare;)— and fuch
being the cafe, it follows that, at the time of feizin by each of the
donees, a mixture of property muft take place. Secondly, as a
right of property is eftablifhed in each of the donees, in the extent of
one half, it follows that the conveyance or inveftiture muft alfo be in
the fame proportions, fince the right of property is an effedl of the
conveyance: on this conlideration, therefore, that a right of property
is eftablifhed in each with refpedl to one half, an indefinite mixture of
their refpedlive fhares in the gift is fully eftablifhed.— It is otherwife
in a cafe of pawn, becaufe the effedl of that is detention, not right of
property, and the right of detention is wholly and completely eftablifhed
in each of the pawn-holders, refpedtively, infomuch that if
6 the
the pawner fhould difcharge the debt of one of them, ftill the right
of the Other to a complete detention remains unimpaired.
I t is recorded, in the Jama Sagheer, that if a rich man beftow Diftinftion
ten dirms, in alms, upon two poor men, or make a gift of that fum IffcjfiEp1
to them, it is valid; but that if the faid charity or gift be made to two t0 the ricil
• / . . . ... /rTV| ir- . . . ° . . and to the
rich men, it is invalid. ( 1 he two dilcipJes maintain that in this laft poor,
inftance both gift and alms are valid.)— From this it appears that Haneefa
has conftrued a gift into alms, when the objedt is a poor man ;
and alms into a f f t , when the objedt is a rich man,— becaufe of the
fimilarity betwixt thefe deeds, as each is a conveyance of property
without an exchange. Hence Haneefa has made a difference with
refpedl to them, as appears by the cafe recited in the Jama Sagheer,
fince he has admitted of charity to two poor men, but not of a gift to
two rich men; whilft in the Mabfoot he has made no difference between
them, but on the contrary has declared them to be equal, as
he there declares “ neither a gift nor alms to two men is valid, becaufe
“ the mixture of property is a bar in both cafes, as both are de-
“ pendant on a perfedl feizin.”— The reafon of the diftindlion in the
Jama Sagheer is that the end of alms is to give to G od, who is one;
and the alms comes not to the poor men, but as their daily food
from G od Almighty; whereas the g ift goes diredlly to the objedt
of it, namely, the two men.— Some have faid that the recital in the
Jama Sagheer is the moft approved dodlrine; and that the meaning
of the dodlrine in the Mabfoot is that charity to two rich men
is invalid, in the fame manner as a g ift to two men of any de-.
fcription.
If a perfon make a gift to two men, of one third of his houfe to Cafe Pf the
one of them, and of. one third to the others it is invalid according to gif‘ofahoufe
, i - r • 1 in leparate
the two difciples, and according to Mohammed it is valid. If, how- lots>
ever, he make a gift of one half to one, and one half to the other,
there are in that cafe two reports with refpedl to the opinion of Aboo
Q j l 2 Toofaf.