g ift, receives
no compen fa-
tion from the.
donor..
A mutual
gift requires-
mutual feizin.
from tKe donor; becaufe a gift is a gratuitous contrail, and a donee-
has no. right, to the fecurity or fafety of the gift, nor is he entitled to-
a£t in behalf of the donor.— Hence he is not entitled to any thino-
from the donor, n.otwithftanding the fraud that' has been, prac-
tifed upon him ; for although fraud be a caufe of a refumption.
in a contrail.of mutual exchange, it is. not fo in a contrail not of mutual
excliange-
Ie' a perfon> givelomething to another on 'condition of that other
giving fomething to him in exchange for it, the mutual feizin of the
refpedtive returns is regarded ;■ that is to fay,, the contrail is nothing
until the two feizins take place,, and is made null, by the fubjedl of.
it,, on either fide,, being mixed with other property.— The- reafon of
this is, that a deed of this nature is in its original a g ift ;. but whenever
the two feizins take place, it-becomes, in effedt, a f a l e and, as-fuch,
a return-may be made on. account of a defedl; .or from amoption o f in-
ipedtionand the right of Shaffa.is alfo connedled with it..—Z ijfer and
Shafe'i maintain that thisisa fale both originally and ultimately, in asmuch
as the characteriftic of fale;. namely,, a conveyance o f property
fo r a return, exifts in it ;■ and in all contrails regard mull be. paid to the
/pint, of them, infomuch that if a mailer Ihould fell his own Have to-
the Have himfelf, he [the Have] is in that cafe free.— -The arguments-
. ° f our dodlors are, that the contrail comprehends two different lhapes-
or defcriptionSs— I. It is a g ift with refpeit to the. letter.— II. It is a
fa le with refpect to the fp irit. It is therefore requifite to pay attention-
to both in the utmoll poflible degree. Now, in the deed-at prefent'
under confideration, an .obfervance of both is pradlicable; becaufe, in-
^ g ift, the right of property is fufpended till feizin; and, in a fale,.
the right of property is- undone in cafe of any invalidity.. The effeil
of fale,. moreover, is obligation :• and a gift alfo becomes-obligatory
upon giving a return for it.— Out of attention, therefore, to both-
lhapes,. the contrail, is confidered as being originally a gift,,
and ultimately a fale; It is. other wife with relpecl to the fale of
3' thethe
perfon of a Have to the Have himfelf .; for it is impoffible in any
refpeit to confider this.as a fale, fence a Have .cannot .poffibly be mailer
■ of himfelf.
S E C T I O N .
If a perfon make a gift to another of a-female Have, and except The gift of»
the child in her womb, the gift is valid;— but the exception is null - Preg».ant
.. r . ' - . r * Have includes
became an exception is never valid uniels it relate to fuch a thin«- as a gift o f her
might have been the fubjedl of the deed; and a child in the womb ^c“ us’
cannot be the fubjedl of gift, becaufe it is equivalent to a conllituent
part, like the members of the body, as has been already Ihewn in
treating o f fale;— fuch, therefore, being the cafe, the exception is in
effedl the fame as an invalid condition: hence the gift remains in force*
and the exception is null.— The fame rule alfo holds in cafes of marriage,
Khoola, and compolition for wilful bloodlhed;— that is to fay,
if a perfon affign a female fa v e (for inltance) as the dower, in marriage,
or as the confideration for Khoola, or the compolition for wilful
bloodlhed, and except the child in her womb, the deed is valid, but
■ the exception is null;' becaufe none of thefe contradls are invalidated
by the infertion of an invalid condition.— It is otherwife in cafes of
■ fale, leafe, oxpawnage-, for thefe are all rendered invalid by involving
an invalid condition.
If a mafter emancipate the foetus in the womb of his female -Have, unlefs that
-and afterwards make a gift of the Have to feme perfon, it is valid; be- have. 4 en
r 1 r . • 1 • • n 1 previoulty ’cauieas the foetus l^not, mthis nntance, the property of the donor, it emancipated,
therefore is not dependant on the gift, in the manner that an exception
is.
R r 3 If