fome allege that the proprietor mull accept a compenfation; and that
he has no other option, becaufe of the different ufes to which thofe
two forts of apparel are applied.— It is certain, however, that the
proprietor has it at his option, in this inftance, either to take a compenfation
for the value of his cloth, or to take theShilwar, paying an
adequate hire; becaufe the ufe, namely clothing and covering naked-
nefs, is the fame in both; and the cafe is therefore analogous to where
a perfon orders a brazier to “ make him a difh of this brafs, and the
brazier makes him a brazen plate, in w hich inftance the proprietor of
the brafs has an option, and fo alfo in the cafe in queftion.
C H A P . IV.
Of invalid Hire.
hire is rendered invalid by involving an invalid condition, in the
A n in v a l id J r r \ si • •
co n d it io n in - fame manner as {ale, for hire ftands in the place or laler whence it is
h i r e j *S that a contract of hire may be diflolvedin the fame manner as a contra#
of fale.
but a frofor- In a cafe of hire rendered invalid by involving an invalid
tionau: h i r e is con(jition, a proportionate hire is due where that does not exceed the
in fu c h c a f e * r r . - ,
d u e , to th e hire fpecified in. the c o n tra d t ,in other words, ' or the lpecin
Srefpecified. hire and the proportionate hire, the fmalleft is due. Ziffer maintains
that a proportionate hire is due, to whatever amount it may ex
tend ; for he conceives an analogy between the cafe in queftion and a
cafe
cafe of invalid fale, in whichthe value of the article is due, to what»
ever amount.— T h e argument of our doctors is that ufufrudt cannot
be appreciated but by a contradt entered into to anfwer the neceflit.y of
mankind, whence, in valid hire, the degree is meafured by the ne-
ceffity.— As, however, invalid hire is a dependant of a contradt of
valid hire, it has a relation to a valid contradt, and confequently regard
is paid in it to what may be the cuftomary recompence in valid
hire, which is a proportionate hire.— Now the parties, in a cafe of invalid
hire, having agreed upon a fpecific amount, it follows that both,
in making fuch fpecification, agree to remit whatever may-be beyond
the fpecified hire, where that is exceeded by the proportionate hire:
in this cafe, therefore, the fpecified hire is due:— but if, on the
other hand, the proportionate hire fa ll Jhort of the fpecified hire, the
excefs of the fpecified hife is not due, as the fpecification itfelf was
invalid.— It is otherwife in an invalid fale; for as an article of fale is
appreciable to its extent, there is no necefiity for a regard to the contradt
in order to manifeft its value. Now this value is the original
thing: if, therefore, the fpecification of a price be valid, (as in a cafe
of valid fale) the efFedt pafles from the original thing to the faid price
but if, on the contrary, the fpecification of a price be invalid, (as in
a cafe of invalid fale,) the efFedt does not pafs from the original thing
to the price.
If a perfon hire a houfe, on a condition thus exprefled, that “ he
“ fhall pay one dirm every month,” fuch contradt is valid for one
month, but invalid for every fubfequent month, unlefs the whole of
the months for which it is to be hired be fpecified, in which cafe it
continues valid.— The arguments on which this is founded are drawn
from the confirmation of the words in the Arabic idiom.— It is to be
obferved that as the contradt in queftion is valid for one month only,
it belongs to both the leffor and leflee, refpedlively, to diffolve the
contradt at the end of the month, as the valid contradt is then complete
and finilhed.— If, therefore, in this inftance, the leflee, after
the
A c o n t r a d in d
e f in i te ly e x -
p r e f ie d c lo fe s
a t th e e x p i r a t
io n o f th e
fir ft te rm .