is complete, the payment of the whole debt being thereby obtained,
but by degrees, and with delay j and in the latter iniiance it is incomplete,
nothing more being procured there than the price for
which the Have is fold,— but which is obtained upon the inftant.—
Hence they have the option either of requiring the Have s fervice, or
of felling h i m b u t their option is deftroyed if the fale in queftion be
valid fo as to put it out of their power to dilfolve it :— they are therefore
entitled to dilfolve it. T h e learned have faid that this rule holds
only where the price obtained for the Have does not go to the creditors;
for where they receive the price, and the fale is not concluded
at an under-value, they are not at liberty to dilfolve it, as in this cafe
they receive their right. It is to be obferved that, in the cafe here
confidered, if the mafter who fold the Have difappear, and the pur-
chafer deny the Have’ s debts, the creditors are not entitled to litigate
the matter with him, according to Haneefa and Mohammed. Aboo
Toofafis of opinion that the creditors are entitled to litigate the matter
with the purchafer, and that the Kdzee mull: decree them the debt
and caufe it to be paid to them.— (Analogous to this is the difference of
opinion which obtains among our dodors concerning a houfe, which
a perfon having purchafed, makes a gift of, and delivers it to the donee,
and then difappears, and the Shafee (or perfon to whom the right of
pre-emption appertains) appears and lays his claim to the houfe; for
according to Haneefa and Mohammed, he [the Shafee~] is not at liberty
to profecute the donee,— whereas Aboo Yoofaf holds a contiaiy
opinion.)— The argument of Aboo Yaofaf\s that, in the cafe here con-
fidered, the purchafer pleads his right of property, and is confequently
prepared to litigate with any perfon who may difpute it with him.—
T h e argument of Haneefa and Mohammed is that if the plea of the
creditors be admitted to lie agamfr the purchafer, it occalions the con-
trad to be broken.— Now the contrad has been concluded by both
the feller and the purchafer. If, therefore, a decree be palled in
favour of the creditors, diffolving the fale, it is a decree operating,
by effed, againft an abfeutee, (for the feller is abfent,) which is
unlawful.
I f a perfon come to a city where he is unknown, and, declaring
himfelf to be the Have of a particular perfon, make purchafe and fale,
in this cafe any commercial tranladions in which he may engage are
binding upon him ; becaufe he has declared himfelf a licenced Have;
and fuch declaration is in proof againft him. If, alfo, he make no
declaration, Itill his ads are valid, lince it is apparent that if he were
inhibited he would not have attempted to tranfad purchafe and fale;
and in the tranfadions of mankind appearances are made a ground of
pradice, in order that the bulinefs of life may not be confined within
too narrow limits. It is to be obferved, however, that the Have in
queftion cannot be fold for the payment of his debts until fuch time
as his mafter appear; becaufe his declaration cannot be admitted as
affeding his perfon, lince he is purely and folely the right of his
mafter.— (It is other wife with refped to his earnings or acquilitions,
thofe being his own right, for the reafons already explained.)— But if
the mafter appear, and acknowledge that “ this perfon is his licenced
“ Have,” he may then be fold for the payment of his debts, as in this
cafe they are rendered apparent in relation to his mafter. If, on the
contrary, the mafter Ihould fay that “ this is not a licenced Have,”
his declaration muft be credited, as inhibition is the original ftate of
Haves, and the mailer’s afl'ertion in this inftance correlponds with what
is original.
Cafe o f ^
perfon appearing
in
the chara&er
o f a licenced
flave, and
a£ting as fuch.