fon of the prohibition, in this inftance, is that the hirer is incapable
o f delivering the recompence, (namely,, a part of the woven cloth,
or a part of the carried grain) ; for as_ the obtaining of it depends
upon the a & of the perfon or animal hired, the hirer cannot be accounted
capable of making delivery merely in virtue of the capacity
of that perfon or animal. The contract is therefore invalid, and an
adequate hire is due. It is otherwife where a perfon hires an afs to
carry one half of a parcel of wheat, in confideration of the other
half; for in this inftance no hire is due on account of the animal
hired, as the hirer has conftituted the owner of the afs proprietor of
half of the grain upon the inftant, in the manner of a prompt or advanced
payment, and confequently the wheat is in partnerfhip between
them, for reafons which will be explained in a future example.
It is to be obferved that where a perfon hires an afs, to carry wheat,
in confideration of a meafure of fuch wheat, or an ox, to grind grain,
the hire allowed muft not exceed the value of what has been fpeci-
fied, becaufe, as the hire is invalid, the leaf: only of the two (the
hire’ named, or an adequate hire) is due, fince the perfon who lets the
animal has agreed to remit any thing beyond. It is otherwife where
two men enter into a partnerlhip in collecting wood, and one of them
fays to the other, “ I will take the whole wood, and pay you a re- 11 compence for your Ihare in the colleaing of i t f o r m this cafe an
adequate recompence is due, to whatever amount, (according to
' Mohammed,) inafmuch as no fum has been fpecified in this inftance,
whence no remiflion of any excefs can be inferred.
Partners do If a perfon hire another to carry wheat which is in partnerfhip
M f f l E between them, no recompence is due; for in all grain fo carried
with refpea DOrter works on his own account, whence a complete delivery is
to their flock. r . . c
not made of the thing contracted tor.
Any uncer- I f a perfon hire another to bake ten particular ƒ««ƒ of wheat into
taintyinthe , , u this day,” for a dirm, it is invalid, according to Haneejaterms
wvau- ? *'7 'J'he
The two difciples, in the Mabfoot, article Hire, maintain that the
contrail in queftion is valid; becaufe in this inftance the performance
of the tajk [of baking the bread] is the thing really contracted
for, the mention of a time being confidered merely as for the pur-
pofe of expedition, in order that the contract may be valid; and confequently
the objection of uncertainty is removed. The argument
of Haneefa is that the thing contracted for is uncertain; becaufe the
fpecification of a time argues that the thing contracted for is general
ufufruCt, or, in other words, the hireling’s furrender of himfelf [to
fervice] ; and, on the other hand, the fpecification of a particular aft
argues that fuch aCt is the thing contracted for. Now general ufu-
fruCt and a particular aft cannot be united; for where a particular
aft is the thing contracted for, no hire is due for the labourer’s fur-
render of himfelf. As, moreover, neither of thefe has a preference
over the other, and the advantage is to the hirer, in the latter
inftance, and to the hireling in the former, it follows that a contract
of this nature would lay a foundation for ftrife. It is reported, from
Haneefa, that where the hirer, inftead o f “ this day” fays “ within
“ this day," the hire is valid, as in fuch cafe the thing contracted for
is the particular aft or talk fpecified: contrary to where he fays
“ this day.” The arguments upon this point are connected with
Arabic grammar, and have already been ftated in treating of
Divorce *.
If a perfon hire land, ftipulating that he lhall be at liberty to
plough and cultivate it, or to water and cultivate it, fuch contract is
* T h e arguments in this example turn upon the diftin£Hon between the performance
or a thing b y general fervice, and the performance o f the fame thing in a particular inftance ;
that is, between hiring a perfon for any bufinefs by the day., or fo forth, and engaging him
for the performance o f the fame bufinefs by the particular tajk. I f the contract for a par-*
ticular tajk be fo exprefled as to leave it uncertain whether the recompence fpecified be for
the day’ s fervice, or for the particular work required, it is in that cafe invalid, (according
to Haneefa,) and confequently no regard is had to the fum mentioned as the recompence,
but the workman receives a proportionate hire for his day’ s work.
V ol. II. Y y
dates the con-
trad.
A leafe o f
lands is not
invalidated
valid;