and fo like-
wife evidence
produced by
Mmj
called on to fwear, unlefs where both are in fame manner plaintiff,
or in fame particular cafes, where it is exprefsly ordained by the l aw ,
neither of which reafons exift in the prefent inftance.
If both the purchafer and the Shafee produce evidence, that produced
by the Shafee muft be credited, according to Hanefa and Mohammed.—
Aboo Toofaf, on the contrary, maintains that the evidence
produced by the purchafer muft be credited ; becaufe it proves a larger
fum than the other, and it is a general rule that regard is had to the
evidence which proves the m o il;-a s where, for inftance, a difference
arifes regarding the amount of the price betwixt a purchafer and a
teller, or an agent and his conftituent, or a perfon who buys a thinofrom
an infidel enemy, and the original proprietor of the thing;_in
all which cafes, if both parties bring evidence, the evidence of him
who proves the largeft fum is admitted.— The difference here alluded
to, betwixt one who buys a thing from an infidel enemy, and the former
proprietor of the thing, will be better elucidated by the following
cafe.— A Mujfulman merchant goes upon a voyage, arrives in the
country of the infidels, receives their protection, and, whilft he remains
there, purchafes a flave, who had formerly belonged to Zeyd,
from an infidel; who had carried him away as his plunder; and, on
the merchant s return, Zeyd claims his flave, offering the price which
the merchant had given to the infidel; but a difference arifing betwixt
them regarding the amount of the price, both adduce evidence to
prove the fum they afferted;— in which cafe the evidence of the
merchant, which goes to prove the largeft fum, is admitted, in preference
to that of Zeyd.— In fupport of the opinion maintained by Han
efa and Mohammed on this point, two arguments may be ur^ed._
F irst, the evidence of the Shafee fubjefts the purchafer to an obligation
; whereas the evidence of the purchafer does not fubjedhthe Shafee
to any obligation, fince he has it in his option to take the thino- in
difpute or not; and the intention of eftablifhing evidence, is to impofe
an obligation.— Secondly, if it be pofflble, a regard fhould be paid to the
, evidence
evidence of both parties; and here it is poflible, for there is no abfolute
contradi&ion in the allegations of the two parties, Cnee the purchafer
may perhaps have twice purchafed the thing; and both purchafes being
thus apparently proved, it remains in the option of the Shafee to prefer
whichever he pleafes; that is to fay, if the purchafer have bought
the thing twice, i)iz. once for one thoufand, and another time for
two thoufand, foe Shafee has it in his option to take the thing for
whichever of thefe prices he thinks proper.— With refpeCt to the analogy
urged by Aboo Toofaf hetwrsX the cafe in queftion and that of a
purchafer and a feller differing concerning the amount of the price, it
cannot he admitted;. for if two different fales take place betwixt the
parties, one immediately after the other, regarding the fame thing,
the one fale invalidates the other ; and it being thus impoflible to admit
the allegations, and evidencerof both parties, that evidence which
proves the largeft fum muft be fuperior; and the fuperiority is therefore
allowed to the evidence of the feller over that of the purchafer,
becaufe it proves the largeft fum. In the cafe of the Shafeey on the
contrary, as the maxim of one fale invalidating the other does not
affeCt him, both the fales hold good with refpeCt to him;— whence
if the purchafer chufe topurchafe the fame thing twice, the Shafee
has it in his option to take it for either of the prices, as has been mentioned
above. Befides, as an agent is fuppofed toftand in the place
of a feller, and his conftituent in that of a purchafer, the fame.laws
will of courfe hold with refpedt to them as are eftabliftied in the cafe
of a buyer and a feller ; and this is confirmed by a precept quoted from
Mohammed, in which it is exprefsly faid, that “ the evidence brought
“ by the conftituent is preferable.”— With refpeft, alfo,- to the analogy
urged [by Aboo Toofaf ] betwixt the cafe in queftion and that of a
difpute between the purchafer of a Have from an infidel and the
former mafter of fuch Have, it is entirely unfounded, fince it cannot
be admitted that the effeft o f the branch is the fame as that of the ropt,
as we find if exprefsly declared in the Seyir, Kabeer, that the evidence
adduced by the former mafter of the Have is fuperior. But even ad-
4 E 2 . ^ mitring