56 4 . S H A T F A. Book X X X VIII.
ceiving a due confidcration;—and as all thefe reafons equally hold in
behalf of a neighbour, he is therefore entitled to the privilege of Shaffa
as well as a partner.— The reafons, moreover, on which ■ Shafei
grounds the right ot a partner, and the diftinCtion he makes betwixt a
partner and a neighbour, can by no means be admitted; fince the inconveniences
attending a divifion of property are allowed by the l a w ;
and are not of fuclva nature that the preventing of them fhould jullify
the injury which muff be committed in depriving another of his property
contrary to his inclinations.—The order in which we have
claffed the perfons entitled to the privilege of Shaffa is founded on a
precept of the prophet, who has laid, “ A partner in the thing jtfe lff
“ has a fuperior right to one who is only a partner in its appendages',
“ and a partner in the appendages o f the property precedes a neighbourT
Betides, the conjunction occafioned by a partnerfhip in the property
itfelf is of all others the ftrougeft; and next to it is that occafioned
by a partnerfhip in the'appendages, (fince here the party participates
in th e immunities of the property, which is not the cafe with a neighbour,)
and-a fuperiority of Tight, in every inftance, depends on the
ftrength of the caufe, -or fundamental principle. The vexations,
moreover, and inconvenience arifing from a divifion may be admitted
as an additional argument, although it be not of fuch weight as to form
a ground for injury to- another.
No perfon
can claim it
during the
exiftence of
one who has a fuperior
right,
A partner merely in the road or the rivulet,, or a. neighbour,
cannot be entitled to the privilege of Shaffa during the exiftence of one
who is a partner iff the property of'the land; for his. is the fuperior
right, as has been already (hewn.
uniefshe firft If a partner in the property of the land relinquifh his right of
when the'title Shaffa, it devolves - next to him who is a partner in the road; and if
devolves to
the next in
fueceflion.
he alfo relinquifh his right, it falls to the fa r Mola/ick, or perfon
whofe houfe is' fituated at the back of that which is the objeCt of
Shaffa, having the entry to it by another road. Aboo Yoofaf is of
8 opinion,
C h a p . I. S H A F F A . 5&5
opinion, that daring the exiftence of a partner in the ground, whether
he refign or infift upon his right, no other perfon is entitled to the privilege
of Shaffa; for by his exiftence all others are excluded; and
whilft the excluder remains the excluded have no right; as holds in
inheritance.—-The ground on which, the Zahir Rawdyet (firft quoted
as above) proceeds is, that the caufe of the privilege of Shaffa, exifts
with refpedt to each of the above-mentioned perfons. The partner,
howlever, has the fuperior right. Upon his relinquifhing it, therefore,
the one who is next to him in order o f precedence.,will aflume
i t ;—-in the fame manner as holds with refpeCt to debts contracted
during health, when they came in competition with debts contracted
in ficknefs; that is, the former are firft difcharged; but i f the creditor
.whofe debt was contracted in health relinquifh his claim, the.eftate of
the deccafed is, then appropriated to difcharge the claim of him whofe
debt was contracted under -fieknets.
A perfon who is a joint proprietor of only a part, o f the property
fold, (filch a_s a partner in a particular roam ox wall o f a houfe,) as he
-has.atightfu.peripr-ta one who is neighbour to that particular part, fo
likewife has he, a right fpperior to one who is a neighbour to the reft
of the houfe. This, js an approved maxim o f Aboo Yoofaf; for the
conjunction holds ftronger in the cafe of a perfon who is a joint proprietor
of only z part of the houfe, than in that of one who is merely
a neighbour. It isnec.effary that.the road or rivulet, the j.oint participation
in which gives a claim to the privilege of Shaffa, be private.
By a private rc^dis undcrflood a roadfhut qp-at „one. end; and- by a
private rivulet,we underft^nd.a.ftrcam of water in.which .boats cannot
pafs and repafs;.. for other wife .it -is a public river. , (This i^ accordino-
to Haneefa.paAMohatnmed. It is reported .-from Aboo Yapjaf, that a
private rivulet is .a dream which affords water to two or. three pieces o f
ground; but if it exceed that, it is a public, one.)
A perfon who
is a joint proprietor
o f
only a part
o f the article
hds a title fa>
periqr to &
neighbour•
If