which exifts where the mafter exprefsly declares, in the contrail of
Kitabat, “ I f you pay it, you are Free.”
and mu ft per- U p o n the Mokdtib becoming free in confequence of paying the
dpatory la- wine or pork, it is incumbent upon him to perform oeeayetc or eman-
fuU Valued cipatory labour, to his full value; for it is incumbent upon him to return
his perfon, becaufe of the invalidity of the contract; but as this
is impoffible, becaufe of his manumiffion, it is confequently incumbent
on him to pay the value of his perfon;— in the fame manner as
in a cafe of invalid fale, where, if the article purchafed be loft or expended
by the purchafer, it is incumbent on him to pay the feller the
value, as he cannot return the attual article.— The Have, therefore,
or to the va. m u fl. perform emancipatory labour for his value.— If, however, his
ticle°named.r" value fall fliort of ,the value of the article named, he is to perform
labour to the amount or value of the article named, and not for Ais
own value; but if, on the contrary, his value exceed the value of the
.article named, he muft perform labour to the amount of his value; for
as the contract is .invalid, the value it involves is incumbent, to whatever
amount, in the fame manner as in an invalid fale.— The ground ,
o f this is that the mafter is averfe to incurring any lofs, .as he is ayerfe |
to o-ranting manumiftion, unlefs he can fecure the amount which he
narries.— He, therefore, will not be content with any thing ffiort of
what he names. T h e flave, on the other hand, is content to pay j
ftill more, in order that his right (namely, emancipation) may not be I
annulled.— Hence his value is due, to whatever amount.
O b je c t io n .— As manumiffion is eftabliffied b y the payment of j
the wine, and cannot be annulled, it would appear that our author's
expreffion “ in order that his right may not be , annulled,” is in-
correft.
R e p l y .— A s, according to the Zdhir Rawiyet, the Mokdtib is not
■ emancipated upon paying the wine- or pork, unlefs the mafter flips!!
have faid “ i f you pay it, you are free,” it is poffible that thetKdz*
nr Mooftee may proceed, .in their decree, upon feme other authority,
in which cafe the Mokdtib's right (to freedom) would be annulled.—
Hence the expreffion “ in order that his right may not be annulled,”
is perfectly correft.
W here a perfon makes his Have a Mokdtib “ in confideration of
“ his value,” he is free upon paying fuch value; for it is that which
conftitutes the ranfom in this inftance; and it is poffible to have a due
attention to the fpirit o f the contrail of Kitabat, by the Mokatib paying
to his mafter property to the utmoft extent of his value, which is
effedted by one perfon valuing him at thirty dirms, (for inftance,) one
at thirty-five, and one at forty, and none beyond that, and the Mokdtib
paying forty dirms;— this, therefore, is a due payment of his
value, which is his ranfom.
O b je c t io n .— As the value of the flave is uncertain, in the lame
manner as the value of undefined cloth, it would follow that this uncertainty
ought to operate on the contrail, and prevent its validity, fo
far as that the flave Ihould not be made free by paying his value, in
the fame manner as a flave is not made free by paying the value of the
cloth, in a cafe where he has been made a Mokdtib in return for cloth
without an explanation of its qualities.
R e p l y .— An uncertainty with refpect to the value renders the
contrail invalid, but does not annul it.— It is otherwife where the
ranfom is made to confift of undefined cloth, as that renders the con-
tradl totally null, the defign o f the party being unknown, becaufe of
the variety of kinds in cloth; for his defign is not to procure any
cloth, (fince his right of property could not be abrogated in virtue of
any cloth whatever,') but fome particular cloth, and it is impoffible to
tell whether the cloth paid by the Mokdtib be that particular cloth, or
not.— A payment, therefore, cannot be eftabliffied in this inftance,
and confequently manumiffion cannot be eftabliffied, fo long as the
defign of the mafter is unknown.
If
Where the
ranfom is fti-
pulated to be
the “ value”
of the flave,
he is free
upon paying
the utmoft extent
of his ef-
timated value*
V O L . III. D d d