Cafe o f a
partnerfhip
Have, made
Mckatib by
one of two
partners,
paying part
o f his ranfom,
and failing
with refpeft
to the complete
difcharge o f
it.
C H A P. V .
Of the Kitabat of P artnerjhip Slaves.
I f a Have be held in partnerfhip between two men, and one of them
give permiflion to the other to create his (hare in the {lave Mokdtib, in
confederation of one thoufand dirms, and that he fhall take pofleflion
of the faid ranfom, and this partner accordingly create his fhare Mokdtib,
and receive a part of the ranfom, and the fiave afterwards become
incapable of completely difcharging it, he [the contracting partner]
is in this cafe entitled to retain the part he has received, according to
Haneefa. T h e two difciples maintain that the fiave becomes a Mokdtib,
in equal proportions, to both matters, aud that, confequently,
what he has paid is fhared equally between them.— The ground of
this difference of opinion between our doctors is, that Kitabat is fuf-
ceptible of divifion according to Haneefa, but not according to the two
difciples; in the fame manner as holds with refped' to manumiflion;
for Kitabat is in one fhape a caufe of manumiflion. In the cafe in
queftion, therefore, the contract of Kitdbat takes.effect with refpedt
only to the fhare of the contrading partner, (according to Haneefa,)
becaufe of its divifibility,— the ufe of the other partner’s aflent being
merely that by it his right of annulling the contrail is relinquifhed;
(for i f he were not to fignify his aflent, he might annul the contrail.)
Now the confent o f the other partner to the contraiting partner’s
taking pofleflion o f the ranfom, is a confent to the flave’s paying it.
T h e afienting partner, therefore, aits voluntarily * with rafpeit to
his
* Arab. Veberra-, literally, <c he. does what he is not obliged to do,” (meaning, in this
place, that he, for the prefent, furrenders his right.)— T h e tranflator does not recoiled!
6 any
S B 1 1 flave’s m Accordingly, the whole taken
pofleflion of belongs to the con trading partner, and the affonting partner
cannot afterwards deprive him of any part of it.
O bjection.— It is a rule that a perfon who aits voluntarily is entitled
to refume what he may have voluntarily relinquifhed, where
the end of his voluntary ad has not been a nf w e r e d a s i f for in
fiance, a perfon were voluntarily to advance the price of merchandize
and the merchandize fhould afterwards perifh before he had obtained
poffeflion o f it, or it fhould prove the right of fome other perfon; in
which cafe the voluntary agent is entitled to take back what he had paid-
and fo hkewife in the cafe in queftion, as the end, namely Kitdbat
has been defeated, i would follow that the partner who IBB
relinquifhed his right is entitled to refume what he had aded voluntarily
with refped to.
R e p l y.— fo the cafe in queftion the matter has undoubtedly proceeded
voluntarily with refped to the Mokdtib, who, upon failing ia
his engagement, again becomes an abfolute fiave; but a matter
cannot claim a debt from his fiave; and hence it is that the volunh
n q u iE Cann0t’ ^ th£ Fefent inftanCe’ refume what he had re-
-According to the two difciples, on the contrary, an affent to the
KM a t of his partner’s fhare is, in fad, an affent to the Kitdbat of
, the whole fiave, as they hold Kitdbat to be indivifible. T h e contrad-
mg partner is therefore a principal with refped to one half, and an
agent with refped to the other half: confequently the Have is a Mo- BB both; and 1 whatever, o f his acquifitions, maybe received
by the contrading partner, is equally participated between both, it
■ M B — i 7 ""-“ H H B B | | Prec*'e meaning, for which reafon, and ^ ^B H 7?P Cal tranflati0n’ B a hnle further on, rendered
Which B | more ex a fliy than any