A G ' E N C M. B o o k XXIII.
“ chafed this Have;” in which cafe the (lave goes to the conflituent.
(This is the cafe which is meant by the above expreffion “ or unlefs
“ he make the purchafe with the conflituent’s property;” for that
does not mean “ that he fhall firfl make the purchafe for a thoufand
“ dirms, generally, and then pay it from the property of his confli-
“ tuent.” ) — S e c o n d l y , where the agent refers the contract to his
town money; in which cafe, the Have, for evident reafons, belongs
to the agent himfelf, dace he has referred the contract to his
■ own property.— T h i r d l y , where the agent refers to money in general,
in which cafe the purchafe . is made either for himfelf or his
conflituent, as he may have refolved in his mind at the time;_
becaufe the agent, in a cafe of the prefent defcription, is at full
liberty either to make the purchafe for himfelf, or for his conflituent.
If, therefore, the agent and conflituent difagree, (the agent
aliening that he intended the purchafe for himfelf, and the conflituent
declaring that he intended it for him,) then the payment of the price
mull determine; that is, the Have is adjudged to him from whole property
the price is paid.— If, on the other hand, it be admitted by both
that n o, refolution was .formed, Mohammed alleges the flave, in this
cafe, to be the property of the agent; becaufe of his being the contracting
party, and alfo, becaufe of the probability there is that every
one adls for himfelf, unlefs where it can be proved to the contrary,
which the cafe in queflion does not admit oL— Aboo Toofaf is alfo of
-opinion that the payment o f the price ought to determine the right to
the purchafe:; becaufe it ferves as a criterion to determine the action
o f the agent, which otherwife admits of two fuppofitions; and alfo,
becaufe, i f the purchafe were to be confidered as made on account of
the agent, notwithflanding his having paid the price from the property
of the conflituent, it would follow that the agent is an ufurper.
This conclufion of Aboo Yoofaf, however, (that the agent would,
under thefe circumflancea, be an ufurper,) does not neceflarily follo
w : on the contrary, he cannot otherwife be confidered than as in
the cafe where the parties difagree with refpedl to the intention; which
C hap. II. a g e n c y . 0$
we have already explained.— It is to be obferved that all the feveral
modes here defcribed apply equally to the appointment of an agent for
the management of a contradl of Silhm,
If a perfon appoint another to purchafe for him a flave for a thoufand
dirms, and the agent afterwards inform him that “ he had ac-
“ cordingly purchafed for him a flave for a thoufand dirms, but that
“ the flave had died in his poffeffion,”— and the conflituent, on the
other hand, affert that $ he had purchafed the faid flave for himfelf and
“ not for h im — in this cafe the aflertion of the conflituent, corroborated
by an oath, mufl be credited.— -This, however, proceeds on a fup-
pofition that the conflituent had not previoufly delivered the faid thoufand
dirms to his a g e n t f o r if he fhould have given the thoufand
dirms, the declaration of the agent mufl be credited ; becaufe, in the
former inflance, the agent gives information, of his performance of an
adt which he is not now capable of carrying into full execution, (fince
he cannot purchafe a flave who is dead,) and his objedl is to get a
thoufand dirms from the conflituent, who, on the other hand, denies
his right; and the word of a defendant is creditable before that of a
plaintiff: and, in the latter inflance, the agent is a truftee, having;
the price in his hands as a depoft-, and his objedl being to obtain a re-
leafement from his trull, his aflertion is therefore credited.— If, however,
the flave be aftually alive at the time of the difagreement, the
declaration of the agent mufl be credited, (according to Haneefa and
Mohammed,) whether the conflituent have delivered the price or n ot;
becaufe the agent gives information of his having performed an adt
which he is capable at that inflant of carrying fully into execution,
(fince it is in his power to purchafe this flave, as he is living.,) and
hence his word is not liable to fufpicion.— According to Haneefa, indeed,
if the conflituent fhould not have delivered the price,, his aflertion
mufl be credited, as the agent is in this cafe liable to the fufpicion
of having firffc purchafed the flave On account of himfelf, and af-
ferting afterwards (on the difcovery of a defedt) that he has purchafed
D z
Cafe o f di£
pute between
the agent and
conflituent
refpe&ing a-
flave who,
after being
purchafed by
the agent,
dies in his
hands.