T h e ufurper
o f a flave is
not refponfible
for what
theflave earns
during the
termof ufurp-
ation.
Cafe o f a
flave hired
If a pcrfon ufurp a flave, and the flave afterwards let himfelf to
hire, and the ufurper receive his wages, and expend the fame, he is
not refponfible for them, according to Haneefa.— The two difciples
allege that he is refponfible for the wages, becaufe he has adled with
the property of the mafter without his confent; (for the contrail of
hire is valid, on the grounds ftated in the preceding example.) The
argument of Haneefa is that refponfibility does not attach except in the
cafe of deftrudlion of protected property * , (for the fixing of a price
“upon property is for the purpofe of protedling it.) Now the wages in
queftion are not in a ftate of protection or cuflody in regard to the
matter, although they be fo with relpedl to another, becaufe the protection
or cuflody of property is eftablithed only by actual pofleflion,
fuch as may admit of the care of it, like the pofleflion of the proprietor,
or his deputy; and the feizin of the flave is not the feizin of his
mafter, fince the flave himfelf is in the pofleflion of an ufurper, and
being thus incapacitated from protedling his own perfon, is therefore
incapable of protedling his wages from the ufurper.— If, however, the
mafter find the wages in the ufurper’s pofleflion, he is entitled to take
them from him, as he in this cafe difcovers his own property.— In the
cafe in queftion, alfo, it is lawful for the flave to take pofleflion of his
wages from the ufurper, according to the opinion of our three dodtors,
fince, if not otherwife employed, and remaining fafe, he is licenced
with refpedt to the tranladlion, beciufe of its being advantageous, as
was before mentioned.— It is different where a mafter lets his flave tp
hire; for in this cafe the flave is not at liberty to take pofleflion
of his wages unlefs his mafter conftitute him his agent for that
purpofe, hecaufe receiving the wage§ is one of the fights, of the
contradl.
If a perfon hire a (lave for two months, with this diftindtion, that
* Arab. M a i M ohirrez.— T h e meaning o f this has been fully explained elfewhere*
(See HitZj and Mohirrez.)
he
he (hall ferve one month for four dir.ms, land one month for fi^tdirms,
it is lawful; and the hire is for four d'mns in the firft month; becaufe
the month firft mentioned muft be Conftrued to mean the month immediately
fucceeding the execution of the cCntiradb, in order to its vac
lidity; for otherwife.the contradl would be iflvalid;, finceiin this-cafe
a month would appear included in it which is not fpecified, and this
would be invalid.— Befides, the adt of hiring infers that the hirer has
immediate occafion for the fervice of the flave, whence the month in
queftion muft neceflanly be conftrued to mean the month immediately
fucceeding the execution of the contradl, in order that the hirer’s ne-
ceffity may be anfwered; and fuch being the cafe, the fecond month
muft in the fame manner be neceflarily conftrued to mean the month
immediately fucceeding the firft month.
I f a perfon hire a flave for one month, at the rate o f one dirm,
and take pofleflion of the flave in the beginning of the month, and at
the end of the month, the flave having abfconded or fallen fick, the
hirer and the owner or mafter difpute,— the hirer afferting that the
flave had abfconded or fallen fick in the beginning of the month, and
the mafter, that he had not fallen fick or abfconded until within a
fliort time,— the aflertion of the hirer muft be credited._If, on the
other hand, the hirer produce the flave, he being then prefent and in
good health, the aflertion o f the mafter muft be credited; becaufe
as the parties differ upon a point which is of a problematical nature, a
preference muft be given to the fide of the queftion which is beft fup-
ported by apparent circumftances. T h e principle upon which the
law in this inftance proceeds is to he found in the cafe of the runnino-
or flopping of a mill ftream; for If the hirer o f a mill difpute with the
proprietor concerningithe-running of the ftream during the termof
hire , in this cafe the aflertion of that party is credited on whofe behalf
f l i i afly tin® i i the flream had not mn at all, and confequently that the mill ftood
« in ju r in g th e whole term.
for different
terms.
Cafe o f a
hired flave
abfeonding
before the
expiration of
the term.
A a a 2 apparent