Chap. I. O f the Perfons to whom the Right of Shaffa appertains.
Chap. II. O f Claims to Shaffa; and of Litigation concerning it.
Chap. III. O f the Articles concerning which Shaffa operates.
Chap. IV. O f Circumftances which invalidate the Right o f
Shaffa.
C H A P . I.
O f the Perfons to whom the Fight o f Shaffa appertains.
The right of THE right of Shaffa appertains,—-I. to a partner in the property o f
Shaffa apper- the land fold,— II. to a partner in the immunities and appendages of the
partneirinthe land, (fuch as the right to water, and to roads;)— and III. to a
iroperty, a neighbour.— T h e right of Shaffa in a partner is founded on a precept o f
participator is 0 ^ . . . .
in the itntnu- the prophet, who has faid, “ The right o/ S haf fa holds m a partner
propertyland “ who has not divided off and taken feparately his Jhare.”— The efta-
a neighbour, blifhment of it in a neighbour is alfo founded on a faying of the prophet,
“ The neighbour o f a houfe has. a fuperior" right to that houfe;
“ and the neighbour o f lands has a fuperior right to thofe lands', and i f
“ , he be abfent, the feller mufi wait his return; provided, however, that
‘ 4 they both participate in the fame r o a d — and alio, “ A neighbour
“ has a right, fuperior to- that o f a Jfranger, in the lands, adjacent to
“ his own.”— Shafei is of opinion that a neighbour is not a Sbcfee * ;
* In other words, “ is not entitled to the right o f Sh a f f a ',”— Shafee being the term,
ufed to exprefs the perfon endowed witlvthat right. . . .
becaufe
becaufe the prophet has faid, “ Shaffa relates to a thing held in joint
“ property, and which has not been divided off:” when, therefore, the
property has undergone a divifion, and the boundary of each partner
is particularly difcriminated, and a feparate road affigned to each, the
right of Shaffa can no longer exift. Befides, the exiftence of the right
of Shaffa is repugnant to analogy, as it involves the taking poffeffion
of another’ s property contrary to his inclination; whence it muft be
confined folely to thofe to whom it is particularly granted by the l a w .
Now, it is granted particularly to a partner; but a neighbour cannot
be confidered as fuch; for the intention of the l a w , in granting it to
a partner, is merely to prevent the inconveniences arifing from a divifion
; fince if the partner were not to get that Ihare which is the
fubjedt of the claim of Shaffa, a new purchafer might infill upon a
divifion, and thereby occafion to him a great, deal of unneceflary vexation
;— but as this argument does not hold good in behalf o f a neighbour,
he therefore is not entitled to the privilege of Shaffa.— We * ,
on the contrary, allege that the precept o f the prophet, already
quoted, is a fufficient ground for eftablifhing the right of Shaffa in a
neighbour.— Befides, the reafon for eftablifhing this right in a partner
is, the circumftance of his property being continually and infeparably
adjoined to that of a ftranger-j-, (namely, the purchafer,) which is
injurious to him, becaufe of the difference of a ftranger’s difpofition,
and fo forth; and certainly a greater regard is due to the partner than
to the ftranger who may have made the purchafe, fince the vexation
that would enfue to the partner from forcing him to abandon a place
which, from long refidence, may have acquired his affedtions, would
doubtlefs be greater than that to which the ftranger is fubjedted; for,
although he may thus be difpoffefied, contrary to his inclination, o f a
property over which he has acquired a right by purchafe, yet ftill the
grievance is but.inconfiderable, fince he is not difpofleffed without re-
* Meaning, the Haneefites, (in oppofitionto the followers o f Shafei.)
t Arab. Dakhcel; meaning, literally, “ an arriver j ” i. e. a tutu comer.
4 C 2 ceiving