Kitabat in
confederation
o f another’s
fpecific property
is invalid,
unlefs that
other fignify
his alient.
M O K A T I B S , B o o k XXXII.
I f a mailer create his Have a Mokdtib in confideration of a fpecific
article, the property of another, it is invalid, as he is incapable of
delivering fuch article.— The compiler of the Heddya remarks, that
by a fpecific article is to be underilood any thing capable of identification
in a contract of exchange; for if the mailer were to fay 1 1 make
“ vou a Mokdtib in confideration of thofe thoufand dirms,” meaning
dirms the property of another perfon, it is valid, fince as thofe are not
identified in a contradt of exchange, the contradt of Kitabat is therefore
referred to a debt of dirms, and is confequently valid.— Hafdn reports,
from Haneefa, that in the cafe in quellion the contradt is valid;
whence if the Mokdtib become pofleffed of the article fpecified, and
deliver it to his mailer, he is free ; or if incapable of delivering it, he
again becomes an abfolute Have as before. T h e ground of this is,, that
as the article mentioned is property, and the Have’s capacity to deliver
it is conceivable, it therefore refembles a dower; that is to fay, if a,
perfon marry a woman, fettling upon her the Have of another, the
marriage is lawful, whence if he be able to deliver the Have, he will
do fo,— or, if not, he will pay the value;—and in the fame manner,
in the cafe in quellion, the contradt of Kitabat is valid ; with this difference,
however, that if capable of delivering the article, he [the
Mokdtib] will deliver it accordingly; but if not, he will revert to his
original Hate as a mere Have.— But to this it may be replied, that in a
contradt of exchange the identic article is the objedt of the contradt,
the ability to deliver which Is effential to a contradt of exchange, where
it is of a nature that admits the idea of diffolution, fuch as fale. It is
otherwife with refpedt to the dower, in marriage, becaufe as, in marriage,
the ability of procreation (which is-the end of marriage) is ndt
efl'ential, it follows that ability to deliver a thing which is a mere dependant
thereof, (fuch as the dower,) is not efiential, a fortiori.
If a mailer create his Have a Mokdtib in confideration of a Ipecific
article, the property of another, and capable of identification, and the
proprietor
C h a P . II. M O K A T I B S . 3^7
proprietor afterwards accede thereto, it is recorded, from Mohammed,
that the'contradt is lawful; for, as fale is rendered lawful by the aflent
of the proprietor of the article.fold, where that is fold by a Ilrano-er,
it follows that Kitabat, under a fimilar, oirchmllance, is lawful a for-
tiori, as fale is condudled upon principles of Hridtnefs, whereas Kitabat
is condudted upon liberal principles. It is recorded, from Haneefa,
that a Kitabat of the nature here deferred is, invalid, (according to
what is wntten m the Miabfoot,) becaule, fuppoling the proprietor of
the ai tide not to accede, it is not lawful, for this reafon, that the
Mokdtib does not, in virtue of it, become proprietor of his own acqui-.
litions, which is the defign, as a Mokatib is conllituted proprietor of
what he can earn, from neceffity, that he may acquire property, and
therewith emancipate bis perfon ; and in a cafe where the ranfom is
made to confilt of a certain fpecific article, this neceffity does not exill;
confequently the contradt of Kitabat here treated of is invalid;_and as
the fame reafon alfo exills where the proprietor accedes, in that cafe
alfo it is invalid. AbooToofafi,ays that the contradt is lawful in either
cafe,— that is, both where the proprietor of the article accedes, and
alfo where he does not accede,— with this difference, however, that
where he accedes it is incumbent upon the Mokdtib to deliver to his
mailer the adtual article, and where he does not accede, to pay the,
value of it,—in the fame manner as in marriage,— as the reafon for
the legality of the marriage, namely the validity of the fpecification,
becaufe of the thing fpecified being property, exills in theprefent cafe
alfo. It is recorded, from Haneefa, that if the Mokdtib obtain poflef- ’
fion, and make delivery of the article fpecified, Hill he'is not free; but-
if his mailer had faid to him, “ I f you give me fuch an article, you.
are flee, he is in this cafe free, in virtue of the condition, not in
virtue of the contradt of Kitabat, for (according to.this report) the
contradl o f Kitabat was- never completely concluded. T h e fame is
alfo recorded from Aboo Toofaf. It is likewife recorded, from him ■
that the Have is free upon delivering the article, although the mailer
Ihould not have faid, “ I f yon give me fuch an article, you are free,”
D d d 2 becaule
III itMl FI til
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