any damage
occafioned by
the cultivation
o f it.
The ufurper
o f a moveable
is refponfible
for the value
in cafe o f its
deftruftion.
I f he himfelf
render it defective,
" he is
refponfible for
fuch defeCt,
but not for
any depreciation
it may
havefuitained
in his hands.
land._He muft, moreover, deduct from the produce of the land the
amount of his flock, that is to fay, the quantity of the feed fown,
and alfo the amount he may have .paid for the damage; and if any fur-
phis fhould then remain, he muft beftow it in charity.— The compiler
of the He day a remarks that this is according to Haneef a and Mohammed,
but that Aboo foofa f has faid that it is not neceflary to beftow
the furplus in charity. Their arguments Ihall be recited at large
•hereafter,
W h e n an article of ufurped moveable property is deftroyed in the
pofleflion of the ufurper, whether, by his aft, or by the aft of another,
in either cafe he is refponfible for the value of i t :— according to thofe
who hold that the giving of the value is originally incumbent, and the
reftitution of the aCtual thing a releafe, becaufe the releafement being
here impracticable, the giving of the value which was originally due is
therefore e ftabliftied and alfo according to thofe who hold that the
reftitution of the aCtual thing is Originally due, and that the giving of
the value is merely fubordinate thereto; becaufe the fulfilment of
what is originally due being impracticable, in confequence of the de*
ftruCtion of the aCtual thing, the value of it is therefore due.
If an ufurper fhould, with his own hands, render defective the
thing he had ufurped, he is in that cafe refponfihle for fuch deficiency
; for as, in confequence of the ufurpation, he is refponfible for the
thing ufurped, in all its parts, it follow s that whenever the reftitution
Of any part of it becomes impracticable, the value of that part is due
-from him. It is otherwife with refpeCt to a diminution of the value
by depreciation; fince for that the ufurper. is not refponfible, provided
he reftore the thing in the place of ufurpation; becaufe a diminution
of the price arifes from the diminution of defire on the part of the pur-
chafer, and not from the ruin or deftruCtion of any of the parts of the
thing.— It is alfo otherwife with refpeCt to things fold which become
defective
defective in the pofleflion of the feller prior to his delivery of them;
for he is not in that cafe under a necefiity o f compenfation to the pur-
chafer ; becaufe refponfibility for the article of fale is a refponfibility
involved in the contract; and the fubjeCt of the Contract is the aCtual
wares, and not the qualities of them. With refpeCt to ufurpation, on
the contrary, that is an a il, and qualities are liable to be compenfated
for by an aCt, but not by a contract, as has been already demonftrated.
T h e author of the Hedaya has laid that this cafe alludes to ufurped articles
which are not of an increafing nature; but that with relpeCt to
things of an increafing nature, a compenfation for the damage muft
not be taken along with the aCtual reftitution, as that would necefla-
rily induce ufury.
If a perfon ufurp a Have, and hire him out to work, and receive
his wages, and the Have be thereby affeCled in his value, in that cafe
(upon the principle laid down in the preceding example) the ufurper
muft compenfate for the damage, and muft beftow the whole of the
wages in charity.- The Compiler of the Heddya remarks that this is
according to Haneef a and Mohammed-, but that according to Aboo
Toofqf there is no neceflity for his bellowing the Wages in charity:
and that the fame difagreement fubfifts with refpeCt to the Cafe o f a
borrower hiring out the fubjeCt borrowed. T h e reafoning of 'ifboo
Toofaf 'is, that the profit in qUeftion has been acquired by the ufurper
upon his refponfibility with refpeCt to the fubjeCt, and upon his own
property: the former of which, namely refponfibility, is evident; arid
fo likewife his right of property; becaufe whatever is a fubjeCt o f re?
fponfibility becomes the property of the ufurper, in Confequence of
his making compenlation, by the way of tranfition. The reafoning o f
Haneef a and Mohammed is, that the profit in queftion has been acquired
by a caufe in which bafenefs exifts, namely, by; art: exertion
over the property of another; and that fuch profit ought to be be-’
flowed in charity; becaufe the caufe (that is, the exertion1 over the5
^property of another) is the trunk, and the profit fo acquired is a
- V o l . I l l , Y y y branch
The ufurped
o f a Have,
hiring him
out tofervice,
is refponfible
for any damage
he may
fuftain, and
muft beftow
the wages in
charitys