A rational
infant may be
conftituted a
Mokatib.
K i t c h a t Is
contra&ed by
anyaddrefs to
a Have which
fufpends his
freedom upon
the payment
of money .
It is lawful to conftitute Mokdtib an infant Have, provided he
know the meaning of purchafe and fale; becaufe in that cafe tender
and acceptance exift, as an infant endowed with reafon is capable of
r.flenting; and the tranfaclion is advantageous to him.— Sbafei differs
from our dodlors in this inftance.— This difference of doftrine is
founded on thé cafe of an infant’s confent in a tranfadlion of com-
merce; for if the guardian of an infant give his ward permiffion to
engage in commerce, purchafe and fale made by him is valid, accord-
in o- to our doctors, provided the infant underhand thefe tranfaclions;
whereas this is invalid according to Shaje'i.— If, however, the infant
in queftion do not underhand purchafe and fale, he cannot lawfully be
conhituted a Mokatib, becaufe as no affent exihs in fuch cafe, the
contract cannot be concluded; and hence if any other perfon were to
pay the ranfom on behalf of fuch infant, hill he is not emancipated,
and the maher muh return what that perfon has fo paid
him.
If a perfon fay to his have, “ I give you credit for one thoufand
“ dirms, which you are to pay to me at various times, fo much at
“ one time, and fo much at another; and when you have thus dif-
“ charged the whole, you are free,— but if you be unable to dif-
“ charge it, you remain a have,” — fuch declaration amounts to a contract
of Kitdbat, fince this is the explanation of contracts of Kitdbat.
IF, alfo, he fay, “ I f you pay me one thoufand dirms, at the rate of
“ one hundred dirms per month, you are free,” this like wife is a contrail
of Kitabat, according to Aboo Soliman, becaufe a fpecification of
times (namely, of each month) argues an obligation for property,
which obligation holds only in virtue o f Kitabat.— Aboo H ifz fays that
the declaration in queftion is not a contrail of Kitabat, becaufe of its
analogy to a fulpenfion of Kitabat upon the payment of one thoufand
dirms at once;— that is, if the mafter were to fay, “ Upon paying me
“ one thoufand dirms, you are free,” it is not a contrail of Kitdbat',
and fo here likewife.
Upon the con'trail of Kitdbat ;being concluded, the Mokdtib
efcapes from the pofleffion of his mafter*, but not from his right of
property.— He efcapes from his pofleffion,’ becaufe the intendment of
a contrail of Kitdbat is the payment of ranfom, which cannot be effected
unlefs the Mokdtib be placed out of the poffeffiqn.of his mafter.
The Mokdtib, therefore, is empowered to purchafe .and fell, and may
travel although his mafter ffiould forbid him.— He does not, however,
efcape.from his mafter’ s right of property,, becaufe of the faying before
quoted; and alfo; becaufe Kitdbat is a contrail of exchange, which
refts upon a'-perfeft equality between, the parties,;, and if the Mokdtib
were to become free upon the inftant, equality could not, ,be efta-
blifhed; but i f his freedom be deferred, this equality is eftabliffied,
becaufe as the Have is, on the one hand, enabled to poflefs himfelf o f
the property requifite to difcharge his ranfom, the mafter is thus, on
the other hand, enabled to refume pofleffion of him in the event of
that not being paid, which he could not do if the Have were free upon
the inftant o f the contrail.— As, therefore, the Mokatib does not
efcape from his mafter’s right of property, it follows that, i f the
mafter ffiould in the interim emancipate him, he becomes free in virtue
of manumiffion, fince he [the mafter] is ftill proprietor of his perfon;—
and in this cafe the ranfom is remitted, as the Mokatib had
agreed to the payment of that merely with a view of obtaining his freedom
in return, but which he thus procures: without it.
If a mafter have, carnal intercourfe with his,'Mokatiba, (or female
Have to whom he has granted Kitabat,') he is liable to a fine of treflT-
pafs-f-; becaufe the Have, in'virtue of the Kitabat, obtains a right
over every part of her own perfon, in order that the end o f Kitdbat
The Mokatib
efcapes from
the pojfejjion
o f his mailer,
but not from
his property;
Whence the
mafter may
ftill emancipate
hin^
gratis.
A mafter,
having carnat
connexion
with his Mokatiba,
is liable
to a. fine.
* Literally, M is out of his mafter’s hands,” which difables the mafter from felling or
otherwife difpofing of him, and from appropriating his earnings,.although he ftill' continue
his property.
f To be paid to the Mokatiba,