able, or to annul the bargain; becaufe, as the controul and fufpenfion
with' regard to the acts of a Have are on account of the right of his
mafter, it follows»that he has ail option with refpeft to them 5 and as
the fame controul and fufpenfion' as to the a£ts of an infant or a lunatic
are with a view to the fecurity of their intereft, their guardians are
therefore to examine and attend to what may be good for them in their
adts. It is reqnifite, moreover, that the perfons here defcribed know
the nature o f fale, in- order that the pillar of' the contradt may exift,
and the fale be concluded fo far as to remain fufpended upon the
guardian’s eonfent;— and a lunatic fometimes knows the nature of
fale, and defigns it, although he be incapable of difHnguifhing-bet ween
the profit and lofs attending it.— (A lunatic of this defcription is termed
a Matoocr,— and his agency is likewile valid,,— as has been already
mentioned in treating of agency.)
O b j e c t i o n .— Sufpenfe obtains only in fale; the original'rule in
purchafe being that it takes effect upon the agent * : but in the prefent
inftancfe, purchafe by an infant or a lunatic depends upon the aflent of
the guardian) in the fame manner as file by them».
R e p l y .— The non-fufpence of purchafe is only where its taking
effedt upon the agent is poffible, as in the cafe of purchafe by a Fa-
■ zoolee, or unauthorized perfon: but in the cafe in; queftion it is im-
poflible that the purchafe fhould take effedf upon the agent, becaufe
o f his incompetency where he is an infant or a lunatic) and becaufe of
the injury to the mafter where he is a Have.— Purchafe by them, therefore,
is alfo fufpendedi
but it oper- — It is to be obferved that the three diiqualifications in queftion,.
them namely infancy, infaaity, and fervitude, occafion inhibition with rerefpeft
to Ipqdt to words, but not with refpedl to a £ ls\; Becaufe adts, upon pro*
Arab. MobaJbir\ meaning the a ch r or performer o f an y th in g ; whence,,in treating
o f crimes, it is tranflated the perpetrator. (T h e tranilator thinks it is proper to explain
this diilinclion, becaufe o f the equivocal nature o f the term agent. )
■ f Arab; Ifyat. Meaning overt adts, fitch as a defirudtion o f property, and fb forth.
ceeding.
ceeding from the adlor, are exiftent and perceptible, whereas mere
words, fuch as purchafe, fale, and fo forth, are accounted exiftent
only where they are -of lawful force and authority, which depends
upon the deftgn of them, a-thing which, in the -cafe - of infants -and
lunatics, is not regarded, becaufe of their want of undemanding ; nor
in the cafe .of Haves, becaufe of the injury to their mafter.— In fhort,
the difqualifications here confidered occafion inhibition with refpedl to
fpeech, but not with refpedl to aidions-,— unlefs, however, thofe be
of fuch a nature as to induce an effedt liable to prevention from the
exiftence of a doubt, fuch as punifhment or retaliationffin which cafe
infancy or lunacy occafion inhibition ; whence it is that infants or lunatics
are not liable to punifhment or retaliation, fince no reward is
paid to their defign.
No contradl entered into, nor acknowledgment made by an infant or
lunatic is valid, for the reafonl’%efore affigned ;— and, in the fame
manner, divorce or manumiffion pronounced by them does not take
place, the prophet having faid, “ every divorce takes place except that
“ pronounced by art infant.”— It is to be obferved, moreover, that manumiffion
.is peculiarly prejudicial.:— and an infant does not underftand
the nature-of divorce, as not being capable o f defire; and his guardian
cannot poffibly know whether the infant and his wife-may not agree
together after he attains maturity.— Hence the divorce or manumiffion
pronounced by an infant are not fufpended, in their effeft, upon the
confent of the guardian. If, alfo, the guardian himfelf pronounce a
divorce upon the infant’ s wife, or grant manumiffion to his flave, it
does not take place:— in oppofition to other ads, fuch as purchlfe
lale, and fo forth.
I f an infant or a lunatic deftroy any thing, they are liable to.make
a recompence, in order that the right o f the owner may be preferved.
The ground of this is that deftruaion occafions refponfibility, indépendant
of the intention or defign;— as where, for inftance, a man’s
‘ property
•words only,
not with re*
-fpeft to a ils.
A ll contrats
or acknowledgments
by
an infant or
lunatic are .
invalid ; and
fo likewife
divorce or
manumiflion
pronounced
by them,
or by their
guardians on
their behalf.
They are re-
fponfible for
deftruflion ô f
property.