K i t a ba t in
• confideration
of any unlawful
article is
invalid:
may be anfwered, which, with refpeft to the mafter, is to obtain the
ranfom, and with refpeft to the Mokdtibd, to become free in cohfe-
quence of the contract; and as the ufe of her perfon Bands as an aftual
part of the perfon, it follows that foe has obtained a right with refpect
to that alfo.— If, alfo, the mafter commit any offence againft the Mokdtibd'
s perfon, or againft the perfons of her children, he is liable to
pay an amercement, for the fame reafon.— In the fame manner, if he
deftroy any of her property, he muft make atonement; becaufe he is
as a If ranger with refpect to her acquifitions.; for otherwife he might
at any time deftroy orconfume them, and confequentiy the defigncf
■ the contraa would be defeated.
C H A E. II.
Of in-valid Kitabat..
I f a MuJJuhnan :mdke his Bave a Mokâiib in -confideration of wine, or
a hog,— or in confideration of his value., (by faying to him, “ I make
“ you a Mokdtib in confideration o f your value,'” )— the Kitabat is in
fuch cafes invalid.— It is invalid in the .firft inftance, becaufe a Muf-
fulman can have no claim to wine or a hog, fince with him thofe articles
are not property, and confequentiy they cannot campofe a ranfom.—
It is alfo invalid in the fécond inftance, becaufe the value is
uncertain with refpeft both to its amount and its quality, fince it is
unknown whether it be one hundred or. two hundred coins, whether
thofe be gold or filver, or whether they be pure or bafe ; and as this
I is
is a-wide uncertainty, the contra# is therefore invalid; in the fame
manner as if a perfon were to make his Have a Mokatib in return for
undefined cloth, or for an undefined houfe or animal, in which cafe
the contraa would be invalid, and fo in the prefent inftance like-
wife.
If a Mufjulman make his Have a Mokatib in confideration of wine,
and the (lave pay the fame, he is free, according to the Z&hir Rawd-
yet.— Ziffer maintains that he is not free unlefs he pay the value of
the wine, fince it is that which conftitutes the ranfom in this inftance.
Aboo Toofaf fays that the Have becomes free in confequence of payino-
the wine, merely as it is that which conftitutes the ranfom in appearance
; but that -he is alfo made free b y paying the value, as it is that
which conftitutes the ranfom in reality.— Haneefa holds that he does
not become free in confequence of paying the wine, unlefs his mafter
fhould have faid to him, “ I f you pay fuch wine, you are free,” in
which cafe manumiffion is fufpended upon the condition Bated, and
confequentiy the Have becomes free upon the performance o f the condition;—
in the fame manner as in a cafe of Kitabat in confideration of
carrion or blood; that is to fay, i f a perfon make his Have a Mokdtib
in Confideration o f carrion or blood, the contrail is valid, provided the
mafter foould have faid “ upon paying it you are free;” and he is accordingly
emancipated upon paying the blood or carrion; and fo like-
wife in the cafe in queftion.— It is to be obferved that, in the Zdhir
Rawayet, no diftinaion is made between the cafe o f the mafter layin-b-
“ I f you pay,” (and foforth,) or otherwife.— The diftinaion between
wine or pork, and carrion or blood, is that the former articles are, in -
effea, property, whence it is poffible, in the cafe of thofe articles, to -
have regard to the eflence of the contraa, which requires that the
Mokdtib be free upon paying the article ftipulated;— whereas blood and
carrion are not in any foape property, whence it is impoffible, in the
cafe-of fuch articles, to have regard ;t0 the . eflence of the contraa, .
and accordingly regard is there had to the eflence of the condition,
8 which ■
but the flava
is free upon
paying the
article,
provided this
be exprefsly
ftipulated in
the contract;