a£ts regard is'paid to the fpirit and intention ; and the fpirit and intention
of pawn.exift in this inftance,— whence it is that the feller is at
liberty to refume the article from the purchafer upon paying, his debt
to him.— Some, again, confider a Waffa fale to be utterly null, as t-he:
purchafer, in the cafe in queftion, refembles a perfon in jeft, lince he
(like a jefter) repeats the words of fale, at the fame time that the
effedl and purpofe of fale are not within his defign. Such fale is therefore
utterly null and void, in the fame manner as a fale made in jeft..
The Haneefte doctors of Samarcand, on the other hand, hold a Waffa.
lale to be both valid and ufeful, -as it is a fpecies of fale commonly
practifed from neceffity and convenience, and is attended with advantage
in regard to lome effedts of fale, fuch as the ufe of the
article, although the purchafer cannot lawfully difpofe of it.
A compelled Ip, in a Cafe of compulfion, the feller take poffeflion of the prices
f s lc is ren- 1 1 t
dered valid readily and willingly* the fale is valid, as his thus taking poffeflion of
'wiilitgfy're- t^le P“ ce i® an argument of its validity; in the fame manner as where*,
ceive the in a fufpended fale, the feller readily and willingly receives the price
of the article,, fuch receipt argues the validity of the fale.— So like-
wife, if a perfon advancing part of the price conclude a Sillim contradt
by compulfion,. and the party who received the advance Ihould afterwards
readily and willingly deliver the article for which the,advance,
had been paid, his fo doing is an argument ofthe validity of the tranf-
adiion. It is otherwife where one perfon compels another to make a.
gift, faying to him “ make a gift of this article to fuch a perfon,” —
but without adding to. the word gift “ and.delivery,” and the perfon
thus compelled make gift and delivery of the article to-the perfon ■
named; for fuch gift is utterly null, becaufe the defign of the com-
peller is that the donee fhall be endowed with a right in the article
upon the inftant of donation; and this defign cannot be obtained, in a,
cafe o f gift, but by a delivery of the article to the perfon,fpecified.. In
a cafe offale by compulfion,. on the other hand, the end of the com-
peller is obtained on the inftant of compelling the party to. accede tothe
the contradl of fale. G ift upon compulfion, therefore, comprehends
a delivery of the article to the donee; whereas fale upon compulfion
does not comprehend a delivery of the article fold to the purchafer,—
whence it is that if the feller, after acceding to the contradt from compulfion,
make delivery of the article without compulfion, the lale is
rendered valid by fuch delivery,— whereas the g ift in queftion is not
rendered valid by a delivery of the article to the donee.
If, in a cafe of compulfion., the feller take pofieflion of the price but it is not
by compulfion, fuch receipt does not render the fale valid; and it is ac- vaIid,jf he be . . . . . . . compelled to
cordingly incumbent on him to return the price to the purchafer, i f it receive it.
remain in his hands, becaufe of the contradt being invalid. If, how- 1
ever,- the price have been loft, or have perilhed in his hands, nothin^
can be taken from him in lieu of it, becaufe it was merely a tru/l with
him, inafmuch as he took pofieflion of it by confent ofth e proprietor,
namely the purchafer.
I f one perfon compel another to fell an article to a third perfon, A fale iu
but do not 'compel this perfon to purchafe the article, and it after- S j f 11 thc
wards perilh in the purchafer’s hands, he [the purchafer] is refponfible pel^d but not
to the feller for the value, as the article is infured in his hands, fuch kaveTtho"’
being the law of invalid fale. It is to be obferved, however, that in fibiTfofthe’
this cafe the feller is at liberty to take the compenfation from the com- art't*e' 'n
peller; becaufe as it was. (in a manner) he who gave the article to the S h i s S . 11
purchafer, it may be faid that it is he who has loft or deftroyed the
feller’ s property. In foort, the feller, in the cafe in queftion, is at
full liberty to take the compenfation from either of the tw o ; in the
fame manner as the proprietor of an ufurped article is at liberty to take
his compenfation from either party, where the article has firft been
ufurped from him, and then ufurped by fome other from the firft
ufurper. If, however, the feller take, his compenfation from the
compeller, he [the compeller] is entitled to recover the value from
Vol. III. N n n the