excccddle'** a Perl°n defire another to purchafe for him two fpecific flaves
rateexprefled (who are fuppofed to be of equal value) for one thoufand dirms, and
tionsVunkfs' the agent purchafe one of thefe flaves for five hundred dirms or lefs,
it is valid, according to Haneefa.— If, however, he Ihould purchafe
him for more than five hundred dirms, the contrail: is not binding on
his conftituent. The reafon of this is that the conftituent, having op-
pofed one thoufand dirms to the two flaves, who are equal in value,
did of confequence intend that the agent Ihould pay five hundred dirms
for each. The agent, therefore, in paying five hundred dirms, conforms
exadtly to the orders of his conftituent; and although, in paying
lefs for him, he does deviate from his orders, yet'this being a
laudable deviation, in favour of his employer, is therefore binding.
In purchafing him, on the other hand, for more than five hundred
dirms, whether the excefs be great or (mail, he is guilty of a deviation
from his orders unfavourable to the interefts of his employer,,
and which is therefore not allowed; unlefs, indeed, the agent purchafe
the other Have for the fum remaining to complete the thoufand
dirms, before any litigation happen between him and his conftituent,
for the farmer purchafe.— What is here advanced proceeds upon a favourable
conftruction of the law. Analogy would fuggeft that the
contradt, in this cafe, ought not to be binding on the conftituent, becaufe
of the deviation from his orders.— The realbn for a more favourable
conftruction, in this particular, is that the purchafe of the two
flaves for one thoufand dirms (which is the exprefs objedt Of the conftituent)
is here obtained; and that the limitation of their prices to
five hundred each, in an equal manner, is only an implied objedt, fince
it requires to be eftablifhed by reafoning; and an exprefs object is always
preferred to an implied one.— T h e two difciples maintain that if,
in the cafe in queftion, the agent fhould have purchafed one of the
two flaves for more than five hundred dirms, by a contrail difadvanta-
geous only in a finall degree, (which cannot always, be avoided,) and
the money remaining fuffice for the purchafe of the other Have, it is
5 - valid;
valid; becaufe thé agency is abfolute, (that is to fay, is not reftridted
io the payment of five hundred dirms for one flave,) although it be
reftridted to a ju jl and proper contraB, which that in queftion may be
confidered, as the difadvantage attending it is not great and obvious.—
It is, however, abfolutely neceflary that the fum remaining fuffice to
purchafe the other flave, in order that the objedt of the conftituent
(namely the purchafe. o f both fo r one thoufand dirms) be obtained.
I f a perfon defire another, who owes him one thoufand dirms, to
purchafe with it a fpecific flave, and the agent adt accordingly; it is
lawful; becaufe a fpecification of the fubjedt o f fale amounts to a fpecification
of the feller ; and as a fpecification of the feller would have
been lawful, (for reafons which will hereafter appear,) fo, in.the
the fame manner, the fpecification of the fubjeB is alfo lawful.
I f a perfon defire another, who is indebted to him one thoufand
dirms, to purchafe with it an indefinite flave ; and the debtor accordingly
purchafe a flave, and the flave die before the delivery of him to
the conftituent; in that cafe the flave is held to have been the property
of the agent.—-If, on the other hand, he die cfter delivery to the
conftituent, he is then held to have been the property of the conftituent.—
This is the dodtrine of Haneefa.— The two difciples allege that
the property o f the conftituent commences on the inftant of the agent
■ obtaining pofleflion of the flave.— A fimilar difagreement fubfifts with
regard to the cafe o f a creditor appointing his debtor to make a purchafe
with the debt, either by a contradt of Sillim or Sirf.— The argument
o f the two difciples is that dirms and deenars, whether ready money or
debt, are not fpecific when oppofed to any thing in a contradt of exchange;
(whence it is, that if a perfon were to fell a fpecific and ex-
ifting article, in exchange for a debt, and both parties agree that the
purchafer does not owe the feller any thing, yet the contradt of fale is
not rendered void:) it is therefore the fame whether they be fpecified
• or
An agent
may liquidate
a debt due
from him to
his conftituent,
by the
purchafe o f
a fpecific article;
but i f the article
be not
fpecified, and
perilh, after
purchafe, in
the agent’s
hands, the
debt is not
liquidated.