muft next interrogate him regarding the grounds o f his -right o f Shaft%;
for the grounds of Shafts are various, and poiiibly he may fet forth
«rounds according to his own imagination, which do not, in reality,
eonftitute any ground. I f he reply that te he is t!ie Shcfee, bccaule
“ of his houfe being fituated next to that which is the prefent abjeft
« of difpute,” his claim (as Khafaf obferves) is complete. It is alfo
mentioned in the Fdtdvee, that he muft defcribe the boundaries
of the houfe from whence he derives his right to the Shaffa in
queftion.
and the mode If the Shafee, being unable to bring witneffes, require that the
fofhi^ex- purchafer be put to his oath, it muft be tendered merely according to
amining the [Pg peq of his'[the purchafer’s] knowledge ; (that is, he muft be required
to fay, “ By G o d , I know not that the plaintiff is the propri-
■“ etor of the houfe on which he founds his claim of Shafta;” ) becaufe
his deposition relates to a thing -which is in the hands of another, and
therefore he can only fwear as to his own knowledge, and not -pofi-
■ tively as to the fa& in queftion, namely, whether the houfe be, fo r
certain, the property of the plaintiff or not.— If the purchafer refufe
to fwear, or the Shafee bring evidence, his property is proved in that
houfe from which he derives his claim o f Shaffa, and the neighbourhood
of that houfe to the one in difpute is alfo proved. T h e Kazee
muft next alk the purchafer whether he has bought the houfe or not?
and if he deny it, the Kazee muft order the Shafee to bring witneffes
to prove the pur-chafe; for the Shaffa cannot be eftabliihed until the
fale be proved; which muft be done by witneffes.— I f the Shafee cannot
bring witneffes, the Kdzee muft adminifter an oath to the purchafer
to this effedt, that “ he has not purohafed the houfe,” or
that “ the plaintiff is not entitled to the privilege of Shaffa in the
*6 manner in which he has claimed i t ; ” for here he fwears regarding
an aft committed by himfelf, and relative to a thing which is in his
own pofleflion; and therefore it is neceflary that the oath be pofitive
as to the certainty of the fa£l.
T he
T he Shafee may litigate his claim of Shaffa although he do not
produce in court the price of the ground in d i f put ebut when the
Kazee has decreed to him the privilege of Shaffa, it is neceflary that
he bring the price. This is the doffrine of the Zakir Rawdyet, as
quoted in the Mabfoot. It is reported, from Mohammed, that the
Kazee ought not to pafs the decree until the Shafee produce the price;
(and the lame is alfo cited by Hafan from Haneefad) becaufe pofffoly
the Shafee may be indigent, and the Kazee muft therefore delay the
decree, in order that the purchafer may not lofe his property.—The
reafon alffgned in fupport of the firft opinion quoted from the Zdhir
Rawdyet, is that the price does not become due from the Shafee to the
purchafer until the Kdzee have pafled his decree; and as the purchafer
is not obliged to furrender up the ground previous to the decree, fo in
the fame manner the Shafee (as has heen mentioned above) is under
no neceflity of previoufly producing the p i c e n o r can there be any
apprehenfion of the purchafer lofing his property, ffnee he has the
right of detention, as will more particularly be Ihewn in the enfuing
examples.
W hen, previous to the Shafee producing the price, the Kdzee
has commanded the purchaler to deliver up the ground [to the
Shafee,] ftill he may retain it in his own hand until the price be
brought to him.
If the Shcfee delay to pay the price to the purchaler, after the
Kdzee has ordered him, ftill his privilege o f Shaffa is not invalidated;
foi it has become firmly eftabliihed by the litigation and the decree of
the Kdzee.
If the Shafee bring the feller into court whilft the houfe is ftill in
his pofleffion, he [the Shcfee] may commence his litigation againft
him, and the feller may retain the houfe in his own pofleffion until
he receive the price from the Shcfee. T h e Kdzee, however, is not
in
The caufe •
may be litigated
and dev
termined indépendant
o f
the price o f
the property
in difpute :
but the defendant
may
retain the one
until the other
be produced.
The privilege
is not forfeited
by a
delay in the
payment.
T h e feller
may be fued
whilft the
houfe is in his
pofleffion.
3