h i r e . B o o k XXXI.
being accounted a delivery— Where,, on the contrary, the leafe is to
a partner, the whole ufe arifing from the article becomes the property
of the leflee, and confequently no part of what he holds can be
termed in d e fin ite : neither is the difference in the nature of the ufufruft
(from part of it being in virtue of right of property, and part of it in
virtue of a leafe) injurious to the leflee in this inftance. Befides, the
hire of an indefinite fubjeft is unlawful from a partner alfo, (according
to an opinion of Haneefa, as reported by Hafan.) It is other wife in a
cafe offupervenient indefinitenefs, as that does not occafion contention.
(A Jupervenient indefinitenefs. is where a'perfon lets an article to two
perfons, and one of the leffees dies,— or where two.perfons let an article
to one perfon, and one of the leflors dies,- in which cafe the
leafe continues in force with refpeft to the other s fhare, indefinitely,
and does not become invalid,, according to the Zahir Rawayet, for
this reafon, that ability to make delivery is-not a condition merely be-
caufe of the contraft, but becaufe of the obligation of delivery,—
which obligation exifts in the beginning, not afterwards, whence
the ability of delivery is not a condition in the continuance.). It is alfo
otherwife where an article islet to two perions,. becaufe in this inftance
a delivery o f the whole is eftabhfhed,. after, vyhich an indefinite divi-
lion fupervenes, becaufe of the right of property of each party being
feparate.
Hire of a I t is lawful to hire a nurfe to fuckle a child,, at a certain rate of
wages; becaufe G o d has faid in thé -K o r a n , “ i f t h e y s u c k l e
“ y o u r , c h i l d r e n , p a y t h e m t h e i r h i r e ; and alfo, becaufe,
in the time of the prophet, fuch was the practice,, and likewife both
before and fince his time.— Some have faid that the contraft of hire, in
the cafe in queftion, is a contraft forfiervmg the infant, the particu
lars of fuch fervice (namely attendance and milk) following as de
pendants,, in the fame manner as the colour in a contraft for dyin0
doth.— (Others maintain that the contraft is a contraft for the milk,
the attendance following as a dependant: and accordingly, if a o0^
be hired to give milk to an infant, no recompence is due.— The former
opinion, however, is more conformable to l a w ; becaufe contrafts of
hire are not concluded for deftruftion or expenditure of an aftually
exiftent article; as where, for inftance, a perfon hires a cow for the
purpofe of ufing her milk, which is invalid, as fhall be Ihortly {hewn
in its proper place.)— Such, therefore, being the cafe, the contraft
in queftion is valid, provided the rate of hire be fpecified, con-
fidering it as hiring a perfon for the fake o f her attendance.
It is lawful to hire a nurfe to fuckle an infant in return for meat
and clothing, on a favourable conftruftion, according to Haneefa.—
The two difciples maintain that this is not lawful, becaufe as the recompence
is indeterminate and unknown, the cafe is therefore the
fame as if the woman were hired to bake bread, or fo forth, in return
for her meat and clothing.— The argument of Haneefa is that the in-
determinatenefs in queftion is not likely to engender ftrife, fince it is
cuftomary to feed nurfes in a liberal manner, with a view to render
them kind and tender to the children under their care.— This cafe,
therefore, refembles the felling of a meafure of wheat out of a heap,
which is lawful, although the feller be at liberty to give the wheat
from whatever part of the heap he pleafes, as an ignorance in that
particular does not engender ftrife.— It is otherwife in the cafe of
hiring a woman to bake bread, or the like, becaufe an ignorance in
that inftance is calculated to occafion contention.— What is here advanced
proceeds upon a. fuppofition that no explanation has been given
concerning the quantity or quality of the food and clothing agreed for
to the nurfe.— It is written in the Jama Sagheer that if a nurfe be
hired to fuckle a child for her viftuals and clothing,—in this way, that
an explanation be given of the kind and fafhion of her apparel, and the
time of giving it, and a fpecific number of dirms appointed for her
board,— and viftuals be afterwards given in lieu of the money, it is
lawful according to all, becaufe in this cafe there is no ignorance.;—
Or, if the viftuals be fpecified, and the quantity and quality explained,
6 this