la queftion being of a nature which argues a want of this regard, is
confequently not permitted to them.
— In regard to a fade of goods for goods, it is either completely a
fale, or completely a purchafe; and cannot be partly a fale, and partly
a purchafe, fince the properties of fale exift completely in it, as well
as the properties of a purchafe.
ma Purchafe ^ agent for purchafe may' lawfully buy a thing for a price
.a th in g « any equivalent to its value: and alfo for more than its value, provided the
/y exceeding difference be not very confiderabk-, but it is not lawful for him to
the value. purchafe it at a rate much beyond the value, as this gives room for fufpicion,
fince it is poffible that he may have firft purchafed it for him-
fe lf ; and that afterwards, on perceiving the lofs, he had.determined
it for his conftituent, If, however, an agent be employed for the
purchafe of a fpecific thing, and purchafe it for a prioe much beyond
its value, lawyers have obferved that the bargain is neverthelefs made
for his conftituent; fince an agent for the purchafe of a fpecific thing,
as not being allowed to purchafe that thing for himfeff, is not, of con-
fequence, liable to any fufpicion.— In the fame manner, alfo, if an
agent for marriage ihould contract a woman in marriage to his conftituent,
engaging for a dower beyond her Mi hr M iß, or proper dower,
it is lawful, according to Haneefa; becaufe, in marriage, as the agent
muft neceffarily refer the contract to his conftituent, he is, therefore,
not liable to fufpicion:— but it is otherwife with an agent for purchafe,
as he may, if he pleafe, fettle the contract in an abfolute manner without
referring it to his conftituent.— T h e term evident difadvantage, as
here ufed, fignifies a rate beyond the valuation of appraifers,—as
where, for inftance, i f feveral perlbns make an appraifement of a
thing, none of their appraifements equal the price given.— Some have
faid that this term is ufed in the exchange of goods for goods, where
the difference is as ten to ten and an h a lf; and in cattle, where it is as
■ ten to eleven; and in immoveable property, where it is as ten to twelve.
The
The rcafon of thefe proportions is that the fale of the jir fi kind is common
; of the fecond kind the fale is in a mean between frequency and
rarity; and of the third, it is rare;—and the difad vantage increafes in
proportion to the rarity of the tranfadtion.
If a perfon, being appointed an agent for the fale of a Have, Ihould
fell the h a lf of him, fuch fale is valid, according to Haneefa; becaufe
the agency is in this inftance abfolute, and does not reftrict the fale
either to one or more contracts; and as it would have been valid, under
fuch circumftances, if he had fold him wholly for half of the price, it
follows that it is valid where he fells the h a lf for half of the price, a
fortiori.—-The two difciples allege that the fale of the h a lf of the Have
is not valid, as not being agreeable to cuftom, and becaufe it involves
the vexation of participation in the property;—the fale, therefore, is
invalid ; unlefs the fale of the remainder alfo be completed previous to
the dilagreement of the parties, and their appeal to the Kazee,^ in
which cafe it is valid, fince the tale of one half may be neceflary to
facilitate the fale of the other half;—(as where, for inftance, there is
no purchafer for the whole, when it would be incumbent on the
agent to make partial dales:)—if, therefore, he fell the remaining
half prior to the delivery of the fubjedt of the firft dale, it is evident
that the fale of the firjl half was made with a view to facilitate
the fale of the whole, and is confequently valid: but if, on the contrary,
he Ihould not fell the remaining half, it is evident that the partial
fale was not adopted as a mean of facilitating the fale of the whole,
and is confequently invalid.,—-This diftindtion, according to the two
difciples, proceeds upon a favourable conftrudtion of the law.
If a perfon be appointed an agent for the purchafe of a Have, and
purchafe one h a lf of him, the purchafe .remains fufpended; (that is
to' fay, it is binding on the conftituent in cafe the agent afterwards
purchafe the other half;) becaufe the purchafe of a part may be the
means of the purchafe of the whole; (as where the dlave, for inftance,
Vol. III. F has
An agent for
the fale o f a
jla<vt may
lawfully fell
any part or
/0r//0#ofhim.
An agent for
the purchafe
o f a Have
may purchafe
him either
wholly or in
Jhares.