302
A gift o f land
cannot be fe-
tra&ed after
the donee has
built or planted
on it.
After the fale
o f a part o f
the land by
the donee,
the donor
may refume
the remainder.
A gift to a
kinfman cannot
be refumed
:
nor a gift to
a htijband or
atnfe during
marriage.
G I F T S. B o o k XXX.
to become, in effedt, a different thing from what it was, and confe-
quently not liable to retraction.
If a perfon make a gift to another of a piece of land deftitute of
buildings or plantations, and the donee plant trees in it, or build a
houfe, a liable, or a Ihop of fuch a fize as to be deemed an increafe,
in that cafe the donor is not entitled to retradt the gift, becaufe of the
increafe which it has received.—The reftridtion is Hated with refpeft
to the Ihop, becaufe Ihops are fometimes fo fmall as not to be deemed
an increafe, and fometimes the land is very extenfive, the Ihop occupying
only one particular part of i t ; in which cafe the bar operates only
with refpedt to that part.
If the donee fell one half of granted land undivided, the donor
may in that cafe refume the other half, as to the refumption of that no
bar exifts. If, on the other hand, the donee Ihould not have fold any
part of the land, the donor may refume one half of it, for as he is entitled
to refume the whole, it follows that he is entitled to refume the
half, a fortiori.
If a perfon make a gift of any thing to his relation within the prohibited
degrees, it is not lawful for him to refume it, becaufe the prophet
has faid, “ When a g ft is made to a prohibited relation, it muji sot
be refum ed—andalfo becaufe the objedt of the gift is an increafe of
the ties of affinity, which is thereby obtained.
If a hulband make a gift of any thing to his wife, or a wife to her
hulband, it cannot be retraced, becaufe the objedt of the gift is an
improvement of affection (in the fame manner as in the cafe of prefents
to relations;) and as the objedt is obtained, the gift cannot be retraced*
* Becaufe o f the exiftence o f the fir ft bar beforementioned; for the increafe o f affeflion
excited in the wife b y the gift is fuppofed, by the law, to be a return which fhe pays fa
it, and which confequently deprives the donor o f the power o f retractation.
This
C h a p . II. G I F T S . 3°3
This objedt, however, is to be regarded only during the exiftent
period of the contradt; infomuch that if a perfpn give fomething to a
ftrange woman, and afterwards marry her, he may retradt the gift;—
whereas, if a man give fomething to his wife, and afterwards divorce
her three times, he is not entitled to retradt the gift.
If the donee fay to the donor “ Take this thing in exchange for The receipt
“ your gift,” and he accept it, the right of retradlation is annulled, of a return
becaufe of the donor having obtained the objedt of his gift. traftadon,™'
If a ftranger, on behalf of a donee, give fomething gratuitoufly* th o u g h the
to the donor in exchange for his gift, and the donor accept the fame, give™by*»
the right of retradlation then ceafes; becaufe a ftranger may lawfully Jira”i‘r-
give a compenfation for the relinquifhment of a right, in the fame
manner as in cafes of Kboola or compofition.
If the half of a gift prove the property of fome other than the if a part 0f
donor, the donee is in that cafe entitled to take back from the donor prove
half of the return he may have made him for the gift, fince the thing o f another,7
i oppofed to that half was not fecured and rendered fafe to him. If, on a ProPomo“" 1 > 1 able part o f the contrary, half the return prove the property of fome other than the return
the donee, the-donor is not in that cafe entitled to take back from the W d f ^
donee a particular part of the gift; but he may reftore the remaining
part of the return, and then refume the whole of the gift from the
donee.— Ziffer maintains that the donor may take back half of the
gift,, as he conliders this cafe to be analogous to that of part of the
gift proving the property of another.—The reafoning of our dodtors,
in fupport of their opinion, is that the remaining part of the return
his a fitnefs to be confidered as a return for the whole of the gift from
the beginning: as, more'over, in confequence of half the return
proving the right of another, it becomes apparent that there is no j
* Arab. Tiblarran; that is, o f his own accord, and without felicitation.
other