À leafe ©f
land is invalid,
unlefs it
fpecify the
purpofe to
which the land
is to be applied’..
place, and he, or his afs., carry the whole of the wheat thither, he is
not entitled either to the recompence fpecified, or to a proportionate
recompence. Shafei maintains that he is entitled to the fpecified recompence
; becaufe, according to his tenets, advantage is the fame as
adual fubftance; and as the fale of an undefined fubftance is lawful,
it follows that it is alfo lawful to receive a recompence in return for
an undefined advantage. T h e cafe in queftion, therefore, is fimilar
to where a perfon hires a building, held in partnerfhip between- him-
felf and another, for the purpofe of keeping grain,— or, a Have, held
in partnerfhip between him and another, for the purpofe of-making
up apparel. T h e arguments of our dodors upon this point are twofold.—
F i r s t , the perfon in queftion here hires another for the performance
of a matter the exiftenee of which cannot be conceived;
becaufe the carriage or porterage of any thing is a fenfible or perceptible
ad, which is impoffible with refped to a thing undefined;—
and as the performance of the thing contraded for is impoffible, it
follows that no recompence is due.—- S e c o n d l y , The perfon hired
is a partner of the hirer with refped to every, particle he carries,
whence he carries on his own account alfo, and confequently does not
perform what he had contracted for. It is otherwife where the thing
contraded for is a partnerfhip houfe, for keeping grain, for in this
inftance the thing contracted for is the ufe of the houfe, and a delivery
of that may be effeded,. without the perfon depofiting- his grain
therein, by the other evacuating it to him.
I f a perfon hire land, without mentioning that it is for the purpofe
of cultivation, or, without mentioning what fpecies, of cultivation
he means to employ it in, the contrad is invalid; becaufe land
is hired for tillage, and alfo for other purpofes; and, in the fame
manner, it is cultivated for various ufe.s, fome more and feme lefs
injurious to the foil. The thing contracted for is therefore uncertain
; and accordingly, the contract is not lawful. Notwithftand-
ing this, however, if the perfon who. hires the land fhould. cultivate
it, and the term of the leafe expire, he is entitled to the fpecified rent,
on a favourable conftrudion. According to analogy he is not fo entitled,
(and fuch is the opinion of Z iffer,) becaufe the contrad, as
being once invalid, cannot afterwards become valid.— T h e reafon for
a more favourable conftrudion, in this particular, is;that, before the
complete fulfilment of the., contrad, the uncertainty has been done
away; and it therefore becomes-valid, in the fame manner as where
the uncertainty is done away before the contra& has been yet concluded;—
the cafe being analogous to where a feller, and. purchafer db
away an undefined time of promife for payment or delivery, in fale,
before the ufual term of credit expires, or do. away a right ©f option
extended beyond the term of three days, before the expiration of thofe
three days.r-If, in this cafe, the leffor and lefl’ee difpute before cultivation,
the leffee being defirous of cultivating the land, and the leffor
forbidding him, the contrad becomes diffolved, in. order, that ftrife maybe
prevented.
If a perfon hire an afs to Bagdad (for inftance).for.one dirm, with-
oufifpecifying. jvhat it.is to carry, and load upon it fuch a burden as
men ufually put upon that animal, and it die before it has, proceeded
more than half way, he is not refponfible;. becaufe the article hired is
te 't-trufi in the hands of the hirer, although the contrad be invalid.
If, on the other hand, the afs arrive at Bagdad., the owner is entitled
ta the hire ftipulated, upon a favourable conftrudion;. becaufe in this
inftance the uncertainty has been done away, in the fame manner as in
the preceding example.— If, alfo, a difpute arife between' the hirer
and the owner of the afs, before it be loaded, the contrad is diflolved*
in, order that ftrife may be prevented-
Refponfibi-
lity does not’
attach, from
the cuftomary
ufe o f an article,
under
an indefinite.-
contrad.
C H A P -