p ! f f e "!
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ill
; I'j- [Mi||
5
betwixt the parties ; and in the prefent cafe there is not any ftipula-
tion, either betwixt the Shafee and the feller, or the Shafee and the
purchafer:— nor can the feller’s confenting to a refpite ki favour of
the purchafer be conftrued into a confent to refpite in favour of the
Shafee ; for men, as they differ in their circumftances, are more or
lels capable of difcharging their debts.— With refpett, moreover, to1
the arguments ufed in behalf of Zijfer's opinion, it is true that the
refpite is a modification of the price; yet the law is not to: be bent
thereby; for the refpite is, in faft, a right of the purchafer; but i f it
were admitted a modification of the price, it would be a right of the
feller, like the price itfelf;— this cafe being analogous to where a man
purchafes a thing for a price payable at a diftant time, and afterwards
fells it again by a taruoleeat fale;—In which inftance, if no fuc'h ftipu-
iation be expreffed, ihe fecond purchafer is not entitled to a term of
credit,—and fo here like wife.— If, in the cafe here confidered, the
land.be ftill in the poffeffion of the feller, and the Shafee take it and
pay him the price in ready money, his [the feller’s] claim againft the
purchafer ceafes; for the bargain with refpedt to him is diffolved, and
the Shafee is fubftituted in his place, as has been already explained.—
If, on the contrary, the land be in the poffeffion of the purchafer, and
the Shafee take it from him, ftill the feller muft allow to the purchafer
the term of credit originally fettled; beeaufe the bargain betwixt them
is not diffolved by the Shafee's taking the land, and the cafe is therefore
the fame aS where a perfon makes a purctiafe upon credit, and
then fells the article for ready money, in which cafe the firft feller is
not entitled to demand ready money from him. It is, however, lawful
for the Shafee to defer taking the land until the term of credit be
expired: but he muft make his demand without delay; for i f he
neglefl to make an immediate demand, his right of Shaffa, according
to Haneefa and Mohammed, becomes null:—rcontrary to the opinion
of Aboo Toofaf:-—The.'reafon for the opinion of Hatieefa and Mohammed
upon this head is, that as the Shaff a has exiftence from the time of
the fale, it is therefore requifite that the claim be made upon the
7 inftant
C h a p . II. S H A F F A .
inftant of the fale being known. The reafon for Aboo Toofaf's opinion
is that “ the only ufe of the claim is to enable the Shafee to take
“ the land,” which end cannot be at prefent effected, whence he remains
filent; and as this'filence does not argue any receffion from his
right, that is confequently not invalidated. T o this, however, it
may be replied, that the taking of the land is a matter pofterior to the
claim; and the Shafee has it, moreover, in his power to take it on the
inftant, by paying down the price.
If a Zimmee purchafe land for wine or pork, and the Shafee be
alfo a Zimmee, he [the Shafee] may take the land for ah equal quantity
o f fimilar wine, or for the value of the pork; beeaufe a bargain of
this kind is held valid amongft Zimmeesr, and as the right o f Shaffa is
enjoyed in common by both Mujfulmans and Zimmees, and wine,
amongft the latter, is held as vinegar amongft the former, and hogs
as ffieep, it follows that, vinegar being included under the denomination
of Zoodt-al-Imfal, and fheep under that of Zooat-al-Keem, the
Shafee is,, at liberty to take the land for an equal quantity of wine, or
for the value of the pork. If, on the contrary, the Shafee be a Muf- ,
fulman, ■ he is to take the land for the value of the wine as:well as of
the pork ; -for the giving or receiving of wine amongft Muffulmans is
prohibited by their religion, and it is therefore, with refpeft to them,
reckoned alfo amongft the -things which are of the denomination of
Zoodt-al-Keem.— If, on the other hand, there be two Shafees, the one
a Muffulman and the other a Z hmr.ee, the former muft take half of the-
land for half the value of the wine, and the latter the other half, for
half the quantity of the wine.— If, alfo, the Zimmee Shafee become a
Mujfulman, as his right js frengthened, not invalidated, by his conver-
fion, he is therefore to take his half of the land for half of the value of
the wine; beeaufe, by his embracing the faith, he is incapacitated
from paying the aflual wine, which then (as it were) becomes hon-
exiftent with refpeft to him;— in the fame manner as where a perfon
makes a purchafe of a houfe for a meafure of green dates, and a Shafee
Von. III. 4 F afterwards
Cafe of property
fubjed-
to Shaffa,
purchafed by
a Zimmee for
a price con-
lifting of unlawful
aril
tides.