■ dicament with a particular hireling, or any affiftari t of a workman *,
T h e argument of our dodors is that the orders of the hirer do not extend
to any operations but what are mentioned in the contrail; and
thofe are to be fuppofed of a fafe nature, fince in virtue of them is obtained
the thing contrailed for, namely, the effeit of them, whence
it is that if this effeil be obtained through the work of any other than
the hireling, {till the recompence is due. T h e orders of the hirer,
therefore, do not comprehend any operations that may be injurious,
fince through fuch the:thing contracted for, namely the effeil, cannot
be produced. It is otherwife with refpeit to the affiflant of a workman;
becaufe, as he works gratuitoufly, his work cannot be leftrided to
the,condition of.fafety, for if it were fo reftrided, he would decline
working.gratuitoufly. It is alfo otherwife with refped to a particular
hireling, as fhall be hereafter explained.— ( It is to be obferved that the
breaking of-a camel’ s.girth, or fo forth, is fuppofed to originate with
the hireling, inafmuch as the accident may be attributed to his,want
of care.)— A common hireling, therefore, is refponfible for any thing
which may be deflroyed in thecourfe of his work; excepting, however,
where a m a n is deflroyed, either by the finking of a boat, or
by falling from a camel or other animal, (although thofe accidents
fhould have been occafioned by the driving of the camel or the navigating
of the boat;) for in this inflance the hireling is not refponfible,
as refponfibility for a m a n cannot be incurred in virtue of a contract,
nor in virtue of any thing but a Jandyat, or offence againfl the perfon,:
whence it would be due, in this inflance, not from the hireling, but
from his A kila , who, however, cannot be made refponfible by a contract..
If a perfon hire a porter to bring ;an earthen jar from the banks of
the Euphrates, (for inflance,) and he fall down upon the way and
* Meaning a perfon who affifts the workman .gratuitoufly; fa s will be perceived b y tte
context a little further on.)
break
break the jar, tjie hirer has it at his option either to take the value
which the jar bore at the place where it was taken up, (in which cafe
the porter is not entitled to any recompence,) or to take a compenfa-
tion for the value it bore at the place where it was broken, paying the
porter a proportionate hire.—Refponfibility is incurred in this inflance,
becaufe (as was before faid) the falling of the jar was either owing to
the porter Humbling, or his rope breakihg, which is attributed to
him:—and an option is allowed to the hirer; becaiife, ! where the jar
is broken upon the road, the circumftanee -admits of two conflruc-
tions; for the hireling is in one fhape guilty of a tranfgreflioh from the
beginning, inafmuch as the carriage of the jar from the place where
it Was; taken up to the place directed is one act; and in another fhaps-
he is not guilty from the beginning, fince the carriage was undertaken
with the confent of the owner, and confequently no tranfgreffion took
place until the breaking of the jar;—the owner, therefore, has it at
his option to proceed upon either g r o u n d i f he proceed upon the
fecond ground, the hireling is to receive a recompence in proportion to
the work he has rendered to the hirer; but if, upon the firjl around,
he is not to receive any thing, fince in this view he has not rendered
the hirer any fervice whatever.
If , a furgeon perform the operation of phlebotomy in any cuflomary a furgeon, or
part, he is not refponfible in cafe of the perfon dying- in confeauence ■farrier’ ai?;
r r i . „ . . . r J ° - * mg agreeably
or luch operation.— This is according to the Mabjoot.— It is written, tocuftomary
ill the Jama Sagheer, that if a farrier bleed an animal for a danik, and «ot'refpon-
the animal die in confequence, or i f a cupper perform the operation accidents**^
of-cupping upon a Have by diredion of his mailer, and the Have dié
in confequence, no refponfibility is incurred.— It is to be obferved that
the doctrine of the Mabfoot, in this particular; proceeds upon the idea
of a reftridion to the performance of the operation in fome cuftomary
part; but it is unreltrided with refped to the alfent of the party or
otherwife; whereas the dodrine in the jama Sagheer proceeds upon
the idea of a reftridion with refped to the aflfent [of the owner of the mm ■ zz flave