which cafe the contract of fale is annulled, as the feller cannot carry it
into execution without bearing or occafioning an injury, not incurred
by i t ; and the fame reafon holds in hire alfo, as this is the meaning of
an Oozir, or pretext, according to our do&ors.
Circum- If a perfon, being afflifted with the toothach, hire a furgeen to
form'a pre-h draw one of his teeth, and the pain afterwards ceafe,—or hire a cook
text for d i f - t0 prepare a marriage-feaft,, and afterwards repudiate the bride by her
t j a 6ts o f h i r e , own defirc th.e contract of hire is diflolved, becaule it it were to
continue in force, the hirer would fuffer a fuperinduced injury
not incurred by the contract:—and the fame rule alfo holds, if a
perfon hire a ihop for traffic, and his property be all afterwards dif-
pofed of.
If a perfon let to hire a houfe or ffiop,. and' afterwards become
poor and involved in debt'to a degree which he is unable to difcharge
but by the price of the houle or ffiop, the Kdzee- mull in this cafo dif-
folve the contract of hire, and fell the place for payment of the debt;
.becaufe in the endurance of the contraft the leffor fuftains a fuperinduced
injury not incurred by the contradt,— which fuperinduced injury,
in this inftance, is that the Kdzee will' otherwife feize and im-
prifon him on account of the debts, as. he cannot'be certain whether
the debtor fpeaks truly in declaring that “ this is his only property.”
From the expreffion “ the Kdzee muft in this cafe diffolve the con-
“ trait,” it may be inferred that a decree of the Kdzee is requifite to
the diffolution; and the fame is mentioned in the Zeeaddt, treating of
a pretext of debt. Mohammed, on the other hand, in the Jama Sag-
heer, fays “ Whatever I have defcribedto be a pretext, is competent
“ to the annulling of hire;” — whence it may be inferred that there is
no occafion for a decree of the Kdzee ; becaufe, as a pretext, in hiie,
* See Khoola.— T h is fpecies o f divorce moil commonly happens in confequence of an
averfion conceived by a wife to her hufband at their firft meeting.
JS
is the fame as a defect: in merchandize before feizin, (as was before
mentioned,) it follows that the contracting party may of himfelf diffolve
the contract.— The ground o f the opinion in the-Zeeaddt is that
as, concerning the diffolution of hire on account of a pretext, there is
a difference of opinion, it is therefore requifite that the Kdzee. iffue a
decree and render it obligatory. Some o f the Haneejite doctors endeavour
to reconcile both opinions, by explaining that if the pretext
be not of an evident nature, (fuch as debt,') there is no occafion for a
decree of the Kdzee; but i f it be not evident, a decree o f the Kdzee is
requifite to render it fo.
If a perfon hire an animal to carry him upon a journey, and fome-
thing afterwards occur to prevent his proceeding, this is a pretext;
for i f the contract were put in force, he might be fubjeCted to injury,
— as a perfon may go upon a pilgrimage, and the proper feafon for it
may in the mean while pafs away,— or he may go in fearch of a perfon
who is indebted to him, and that perfon in the mean time may appear,—
or he may proceed upon a trading excurfion, and may in the
mean time become poor.— If, on the contrary, the obftacle to the
journey occur to the Makar, or perfon who lets the animal to hire * ,
it is not admitted as a pretext, becaufe it is in' his power, i f he do
not chufe to go himfelf, to fend the animal under the care of one of
his fervants or apprentices.— If, alfo, the Makar fall fick, fo as to be
incapable of proceeding upon the journey, this is not a pretext, according
to thzMabfoot.— Koorokhee is of opinion that it is a pretext,
fince fending his animal under the care of another perfon is not altogether
void of injury:— the contract, therefore, is fet afide in a cafe
of unavoidable neceffity, as in ficknefs, but not in a cafe of mere option,
as in health.
* M akar is a perfon whofe bufinefs it is to let horfes, camfels, & c , to hire.