(and the fame
rule holds
with refpett
to a gua rd ian ,
or a licenfed
£ave.)
A father, or executor* Band, with refpeft to their infant ward,,
in the fame predicament as a Mokdtib with refpeft to his Have;— that
is to fay, it is unlawful for them to contradt the [male] Have of their
ward in marriage, or to emancipate him, or to fell him into his own
hands. But it is lawful for them to contraa in marriage his female
Have, or to enter into a con trad of Kitabat with his male or female
Have, becaufe it is lawful for them to acquire property on behalf of'
their infant ward in the fame manner as' a Mokdtib; and alfo, becaufe
eontra&ing his female Have in marriage, or making his male or female
Have Mokdtib, is conducive to his intereft, whereas any thing beyond
this is not fo ; and their authority is eftabliihed in regard to their ward
with a view to his intereft.
A M azoon, or Have licenced to trade, cannot lawfully perform
any of the adts above defcribed; that is to fay, he can neither con-
tradt his male or female Have in marriage, nor make his Have a Mokdtib,
nor-emancipate him in return for property, nor fell him into his
own hands.— This is according to Haneefa and Mohammed.— Aboo
Toofaf maintains that he is at liberty to contraft his female Have in
marriage.— The fame difference of opinion obtains with refpeft to a
Mozaribat manager, a partner under partnerfhip by reciprocity, and
alfo a partner under partnerfhip in arts; for Aboo Yoofcf conceives an
analogy between thofe and a Mokdtib', and as a Mokatib' is. at liberty
to contract his female Have in marriage the fame is lawful, to thefe
likewife.— He, moreover, conceives an analogy between contraaing
a female {lave in marriage, and letting her out to hire; that is to fay,
as it is lawful for a Mazoon, a Mazdribat manager,, & c , to let their
female Have to hire,, fo. in the fame manner it is lawful.for them to
contrad her in marriage, becaufe contraaing her inmarriage and feting
her out to hire.are both equally caufes of advantage.— T h e argu-
* The term Wajfee, in this place, fignifies a guardian appointed by will; in oppofition-
to a Wallet,, or natural guardian..
snents
inents of Haneefa and Mohammed upon this point are twofold. F irst,
the Have in queftion is merely empowered to trade, and contraaing
his female Have in marriage is not a tranfaaion of trade, becaufe trade
is art exchange of property for property, and contraaing in marriage
is not of this, nature, fince the connubial enjoyment is not property,
evidently..— Contraaing in marriage, therefore, refembles K ita bat;.
and as they are not empowered to make a flave Mokdtib, fo in the fame,
manner they are not empowered to contraa a female {lave in marriage,
A Mokatib, on the contrary, is empowered to acquire pro-
I perty; and the contraaing his female Have in marriage is one mode
of acquiring property,— Secondly, contraaing a female Have in.
marriage is an exchange of property for what is not property. It
therefore refembles Kitabat, and not hire.-, as that is an exchange of
property for property,, fince ufufrua, in hire, ftands in the place o f
I property. It being therefore, proved that contraaing a female flave in
marriage refembles Kitabat, and a contraa of Kitabat being unlawful.
I to the flave in queftion, it follows that contraaing his female flave in
I marriage is likewife unlawful to him.
S E C T t O N,
If a.Mokdtib purchafe his father or his fon, they are included in m arentor.
his Kitabat', that is to. {ay, they become Mokdtibs dependantly;_ child of »iM«--
becaufe, as a Mokdtib poflelfes capacity to make a Mokdtib, although chaft/by
he be not capable of granting emancipation, they therefore are rendered h?“’ V?*?"
Mokdtibs,, in order that the ties of kindred may be as far as poffible
preferred; for as, if their relation, being a freeman, were to become
poffeffed of them, they would alfo become free, in confequence of a
freeman heing empowered to beftow manumiffion upon his flave fo
m the feme manner they in the prefent. inftance become Mokdtibs, in
confequence