42* M O I A T I B S ,
is entitled to take a compenfation from the emancipator for the value
of his fhare, provided he be rich,— or, if he be poor, to require
emancipatory labour from the Have ;•— for as this is a cafe of recompence
fo r manumijfion, the wealth or poverty of the emancipator occafions a
difference.
Cafe of one If one of two mafters conftitute his fhare in a flave Modabbir, "and
creating2^ the other mafter, being wealthy, afterwards emancipate his fhare, in
ihare m a this cafe the former has.it at his option either to take a compenfation
flave Modab- _ r r
Hr, and the from the emancipator for half the value of the flave, as a Modabbir,
«emancipating or to require emancipatory labour from the flave, or, laftly, to eman-
his fhare. cipate him gratis. If, on the contrary, one partner firft emancipate
his fhare, and the other then conftitute his fhare Modabbir, this partner
cannot take any compenfation from the emancipator,— but he may
either require emancipatory labour from the flave, or may emancipate
him gratis *. With refpeft to the Modabbir value of the flave, feme
fay'that it is to be eftablifhed by appraizers.— Others, again, contend
that it is two thirds of the value as an abfolute flave; and this is approved;
becaufe the advantages derived from a flave are of three kinds
or deferiptions,— firft:, fale, and the like,— fecondly, fervice, and the
like,— and thirdly, manumijfion, and the like;— and as one o f thefe is
done away by Tadbeer, (namely, fale and the like,) it follows that
one third of the value drops.— It is proper to remark, that upon the
emancipator paying the Tadbeer partner a compenfation, ftill he does
not, in confequence, become proprietor of that portion of the flave
for which he pays fuch compenfation; for a Modabbir cannot fhift
from the property of one perfon to the property of another;— as
where, for inftance, a perfon ufurps the Modabbir o f another, and
* A fm a ll p o r t io n o f t h e t e x t , e x p l a in in g th e p r in c ip l e s u p o n w h i c h Haneefa p ro c e ed s
i n t h i s in f t a n c e , i s h e r e o m i t t e d , a s i t is e x c e e d in g l y t r i f l in g , a n d f o m e w h a t o b f e u r e , and
t h e fu b f t a n c e of i t h a s a l r e a d y b e e n e x p la in e d in t r e a t in g of th e m a n u m i f l io n of p a r tn e r f liip
f l a v e s .
Jie
he [the Modabbir'\ abfeonds, and the ufurper pays the owner a compenfation
; in which cafe he does not become proprietor of the Modabbir,
but upon his being taken and brought back, is only at liberty to
require emancipatory labour from him.— If one of the two mafters
firft emancipate the flave in queftion, the other has three thino-s at
his option, according to Haneefa: and if he create his fhare a Moddabir,
his option of taking compenfation difeontinues, but he has ftill an op- .
tion Of emancipating the flave, or requiring emancipatory labour from
him, as a Modabbir is capable o f either being emancipated or havino-
emancipatory labour required from him.— -Aboo ToofafinA Mohammed
have faid that if one of the two mafters firft conftitute his fhare in the
flave Mokatib, the emancipation by the other partner would be null ;
becaufe as (according to them) Tadbeer is indivifible, the partner who -
grants it thereby becomes proprietor of the other partner’s fhare,, and
muft make a compenfation to him for half the value, whether he be
rich or poor, as this is a Ziman Timallook, or recompence fo r ajfumption
of property, the obligation of which is not affeded by the wealth or
poverty of him who is refponfible for it.— He muft, moreover, make
this feompenfation for half the'value at the rate of an abfolute flave, as.
the flave whom he has eonftituted Modabbir is an abfolute flave.— I f
on the contrary, one of the two partners firft emancipate his fhare,*
Tadbeer by the other partner would be null; becaufe (according to
them) manumiflion is indivifible; whence the flave is emancipated in-
tota, and therefore the point upon which the validity of Tadbeer refts
does not here exift. And in this cafe the emancipator is refponfible
for half the value of the flave, provided he be wealthy ; or, i f he be
poor, the flave muft perform emancipatory labour for half his*value,—
becaufe this is a Ziman Ittdk, or recompence fo r manumijfion, the nature
of Which is different, according to the emancipator’s circumftances.
C H A P .