An abatement
may be
made from
the ranfom,in
confideration
o f prompt
payment.
If a perfon create his Have a Mokatib, in confideration of one thoufand
dirms, on a credit of one year, and afterwards enter into a com-
pofition with him for five hundred dirms prompt payment, it is lawful,
on a favourable conftrudtion. Analogy would fugged: that it is
unlawful, becaufe it would hence appear that the mafter had in this
inftance oppofed one thoufand dirms to five hundred dirms, and credit
for one year, which, as credit is not property, and as the debt of
ranfom is property, would be ufurious ;—whence it is that a tranf-
aftion of the nature here defcribed is not lawful with refpedt to a freeman,
or the Mokatib of a ftranger;—that is to fay, if a perfon have a
.deferreddebt owing to him from a freeman, and compound with him
for one half of his right, prompt payment, it is unlawful; and in
the fame manner, if a perfon have a deferred debt owing to him from
the Mokatib of a ftranger, and compound with him on the fame
terms, it is alfo unlawful. The reafons, however, for a more favourable
conftru&ion of the law in this particular are twofold.-
F i r s t , the credit granted to the Mokatib, although in one fhape it be
not property, yet is in another fhape property; for as the Mokatib is
unable to pay his ranfom but by means of the credit, it follows that
the credit is virtually property with refpeft to him. The ranfom, on
the other hand, although it be property in one fhape, yet is not' fern
another fhape, infomuch that bail cannot be given for it.—The credit,
therefore, ftands upon the fame footing with the ranfomconk- ,
quently, the tranfaftion was only the acceptance of a confideration of
what was property in one fhape in return for what was alfo property
in one fhape; and as the confideration and the return were of different
kinds, there was therefore no ufury in it.—Se c o n d l y , A contrail of
Kitdbat is a contrail in one fhape;—but it is not fo in another fhape;
becaufe a mafter cannot have a claim for debt upon his flave, and alfo
becaufe it [the contrad] has a femblance to Tameen, or conditional
vow, as it-is a fufpenfion of emancipation upon the payment of a confideration.—
The fum of five hundred dirms, alfo, oppofed to the
credit, is ufury in one fhape hut not in another, for if the credit
granted he not accounted property, it is ufury,— whereas if the credit
be accounted property,. ufury is not induced, fince in fuch cafe it is
•merely property oppofed to property. T h e ufury, therefore, is at all
events duhious; and where dubious ufury occurs in a contra£t which
is itfelf of a dubious nature, it is doubly dubious, and confequently is
not regarded.— It is otherwife in a contract between two freemen, as
that is in every fhape a contradl, and confequently the circumftance of
a credit being granted in it occatious a femblance., of ufury.
If a fick perfon * enter into a contradl of Kitdbat in confideration a credit
of two thoufand dirms, on a credit of one year, with his:.flave whofe
value is one thoufiuul, and afterwards die, leaving no other effedts but ranfom,with-
this flave, and the heirs of the deceafed had not acceded to the credit fent Df the
granted, in this cafe he [the flave] muft pay two thirds of his Kitdbat “ “^upon*
immediately, and agree to pay the remainder within the term of hisdeceafcj
J and the M o - credit, or he again becomes an abfolute Have.—This is according to mnft
Haneefa.—According to Mohammed he muft pay two thirds.of one [^dton” 0
thoufand immediately, and the remainder within the term of credit; immediately;
becaufe as it would have been lawful for,.the mafter to have remitted
the remainder altogether, by making the flave.a Mokdtib in confideration
only of his value, it follows that he was at liberty to poftpone it
to the term of credit fpecified;—in the fame manner as where a fick
perfon enters into an agreement of Khoola with his wife, in confideration
of one thoufand dirms, on a credit of one year, and dies, leaving
no property except thofe thoufand dirms, and his heirs had not acceded
to the credit granted the wife;—for in this cafe the credit is never-
theleil: valid with refpect to'ftie whole fum mentioned; becaufe as the
deceafed was at liberty to have pronounced a divorce upon his wife
without receiving any confideration, it was confequently in a fuperior
* Arab. Maree% \— always (in the language of the l aw ) meaning a dying perfon. Th e
cafe here confidered turns entirely upon the general rule, that a dying perfon is not at liberty
to perform any a£t which might have a tendency to affe& the right of his heirs, beyond one
th ird of his eftate.
V o j.. III. G g g degree