C H A P. VI.
Of the Death or Infolvency * of the Mokdtib; and of the
Death of his Mafter.
A Mo katib
failing in his
payments,
mull (if he
appear on enquiry
to be
folvent) be
indulged with
a fhort delay:
U p o n a Mokatib failing-to make good the hated payments ftipulatedf,
the magiftrate muft examine into his circumftances; and in cafe he
find that there are recoverable debts owing to the Mokdtib, or that he
has property in another perfon’ s hands, which is likely to be reftorecl,
he muft not precipitate his decree of inability, but muft wait for two
or three days, out of tendernefs to both parties, to the mafter, in
order that he may get the ranfom, and to the Have, in order
that he may obtain his liberty.— T h e time of waiting is fixed
at three days, becaufe this is the time granted for making experiment
of the truth of pretexts,— as in the delay allowed to a defendant, for
the purpofe of accommodation,— or to a debtor, for the purpofe of
paying his de bt shenc e the time of waiting muft not exceed that
term.— If, on the contrary, the Mokdtib have nothing whatever, and
the mafter require the magiftrate to pafs a decree of inability, he muft
accordingly pafs fuCh decree forthwith, and diffolve the contrail of
Kitabat.— This is according to Haneefa and Mohammed.— Aboo Toofaf
maintains that the magiftrate muft not pafs a decree until fuch time as
the Mokdtib lhallhave failed in two payments fucceffively, becaufe of
a faying of Alee, “ Upon the Mokatib falling in arrear two payments■,
“ fucceflively, let him revert to his original fiate o f an abfolute fiave,"
* Meaning, “ his inability to complete the payment o f his ranfom.”
+ T h e ranfom or confideration for Kitabat 'is generally ftipulated to be paid by the
nave in feparate K ijis, or iels, at appointed times, which are here termed by the tranflator,
the payments. - aS
as from hence it may be inferred that he does not revert to a ftate of
abfolute bondage as long as he does not fail in two payments; fince,
as the prophet’s fucceffor here fufpends his fo doing upon that circum-
ftance, it cannot happen until that circumftance takes place. Befides,
a contraft of Kitdbat is a contrail of friendlhip and benevolence,
whence it is moft laudable that a prompt performance be not infilled
on in it.— The time for payment, moreover, is after the arrival of the
period appointed;— (in other words, upon the term o f credit expiring,
payment becomes due; but the contrail is nqt dilfolved until after
the lapfe of fuch a time as may afford an opportunity to provide money
for the payment;)— and it is therefore indifpenfably requifite that,
after the expiration of the term of credit, a delay be granted of fuch a
time a!s may ferve for experiment, and enable the Have to make pay-
ment ;— and the moll approved time of fuch delay is the time agreed
upon by the contracting parties, namely, the term of the fecond payment.
As foon, therefore, as the term of credit of the fecond payment
is expired, i f the Have have not paid, his inability to pay becomes
eftablilhed, becaufe of the lapfe of the term of delay agreed upon by
the contracting parties.— The argument of Haneefa and Mohammed is
that the caufe of annulment, namely, inability to pay, is already
fully eftablilhed, fince a perfon who is incapable of making good one
payment is certainly incapable of making good two.-— Befides, the de-
fign of the mafter is to obtain poflefllon of the property at the expiration
of the term of credit; and as this defign is not anfwered, it follows
that the contrail of Kitabat is diflblved, unlefs he aflfent to a
farther delav. This reafoning, however, does not hold with refpeit
to a forbearance for two or three days, as that is indifpenfably requifite
to enable the Mokdtib to make good his payment: this, therefore, is
not accounted a delay. With refpeit to the dependance placed by
Aboo Toofaf upon the faying of Alee, it may be replied that traditions
differ upon the point in queftion; for it is related that Omar, upon
his Mokdtibci proving unable to make good one payment o f ■ her ranfom,
remanded her to her original ftate o f abfolute. bondage;— and
V o l . III. I i i where