I f the foetus
have been
previoufly
created a Modabbir
the
gift is null.
The gift o f a
thing renders
all provilional
conditions re-
fpefling it
nugatory. '
The gift o f a
debt, by a
conditional
exemption
from it, is
null.
If a matter create the foetus in the womb of his female Have a Modabbir,
and afterwards make a gift of the Have'to- fome perfon, the
gift is'not valid ; becaufe the child of the faid flave ftill remains his
property, and therefore his act of making it Modabbir does not:referable
an exception, but rather operates' as a total- bar to the legality of
the gift: for as it is impoffible to fender the gift valid with refpedt to
the child, becaufe of his being a Modabbir, it becomes the fame as the:
gift of an undivided portion, or as the gift of a thing involved with the.
property of the, donOr..
If a perfon make a gift of his female (lave to another, on condition
that hereftore her to him, or that he emancipate her, or create her
an Am-Walid,-—or, if a perfon make a gift of a. houfe to another, on
condition that the donee give back a part o f it,— or,, if a ,perfon make'
a gift of his houfe in.charity to.another, on condition that the receiver
of the charity give him fomething in exchange for part of the houfe,—
fuch gift, or charity is valid; but the condition aniiexe.d'is invalid,, be-
caufe it is contrary to the fpirit or intendment o f the -contrail'; and
neither gifts nor charities are affefted by being accompanied with an
invalid condition, becaufe the prophet approved of Amrees [gifts for
life,] but held the condition annexed to them by the granter '* to be
void.?£It is other wife in fale\ Becaufe the prophet has .prohibited'
fale with an invalid condition; and alfo becaufe invalid conditions, ks.
being in the nature of ufury, manifeft their effefts in contrails of exchange,
but not in fuch as are not:of the defcription of exchange..
If a perfon, having a debt due to him of one thoufand dirms,,
fhould lay to the debtor “ when to-morrow arrives the faid thoufand
“ dirms are your property,” '— or, “ you- are exempted from the
“ debt,” -—or, if he Ihould fay “ whenever you pay me one half of
“ the faid thoufand the other half is your property f or “ you. a re«-
* Namely, the condition o f reftoration upon the demife o f the grantee.
“ empted from the debt of the other half,”— the gift fo made is null.
The reafon of this is that the gift of a debt to a debtor is an exemption:
but an exemption has two meanings:— I. It is a conveyance o f property,
on the principle of debts being property, on which account lawyers
have held that “ an exemption may be undone by a rejection:”— II. It
is an annulment, lince debt is in the nature of a quality, on which
account an exemption does not reft upon acceptance.— Now nothing
can be fufpended on a condition excepting an utter annulment, fuch
as a divorce or an emancipation;— and an exemption (as has been already
faid) is not an utter annulment, ..and therefore car^not be fufpended
on a condition,, but on the contrary is perfectly nugatory.
A n Amree, or life-grant, is lawful to the grantee during his life,
and defcends to his heirs, becaufe of the tradition before quoted._
Befides, the meaning o f Amree is a gift of a 'houfe (for example) during
the life of the donee, on condition of its being returned upon his
death.— The conveyance of the houfe, therefore, is valid without any
return; and the condition annexed is null, becaufe the prophet has
fandtioned the gift, in this inftance, and annulled the condition, as
before mentioned. An Amree, moreover, is nothing but a gift and a
condition ; and the condition is invalid; but a gift is not rendered null,
by involving an invalid condition, as has been already demonftrated.
If one perfon fay to another, “ my houfe is yours by way of
“ Rikba," it is null, according to Haneefa and Mohammed. Aboo
“Foofaf has faid that it is valid, becaufe his declaration “ my houfe is
“ yours," is a conveyance of the houfe: and the condition.of Rikba is
invalid; becaufe the meaning o f this phrafe is “ i f I die before you
then my houfe is yours,”— that is to fay, he waits in expectation
of the other’ s death, that the houfe may revert to himfelf :— Rikba,
therefore, refembles Amree.— The arguments of Haneefa and Mohammed
upon this point are twofold.— F i r s t , the prophet has legalized
Amree and annulled Rikba.— S e c o n d l y , the meaning of “ my houfe
> “ is,
Cafe o f life-
grants.