ground on on which they Hand. This opinion (which is alfo mentioned in the
Hands. Mabfoot) is approved; for as buildings and trees are not or a permanent
nature, they are therefore of the clafs of moveables. There is, however,
an exception to this in the cafe, of the upper ftory of a houfe;
for it is fubjedt to Shaffa,— whence the proprietor of the under ftory
is the Shafee, as is alfo the proprietor of the upper the Shafee of
the under one, notwithftanding their entries be by different roads.
a Uujfulman a 'M u s s u l m a n and a Zimmee, being equally affedted by the prin-
S g o f n T “ ciple on which Shaffa is eftablifhed, and equally concerned in its ope-
re^eara'itth rations, are therefore on an equal footing in all cafes regarding the
privilege of Shaffa; and for the fame reafon, a man or a woman, an
infant or an adult, a juft man or a reprobate, a freeman or a Have,
(being either a Mokdtib or a Mazoon,) are all equal with refpedt to
Shaffa,
i t holds with When a man acquires a property in lands for a confideration, (in
refpefltopro- ^ manner, for iuftance, of a grant for a confideration,) the privilege perry tranf- ° . r c
ferred in any 0f Shaffa takes place with refpedt to it, becaule it is m the power ot
^ f i u Z t i o n . the Shafee to fulfil the ftipulation. .
k d oe s not T he privilege of Shaffa cannot take place relative to a houfe afhoid
in a pro- gCTne(j | man as a dower to his wife, or by a woman to her hufband
perty slugncd b v
in donver, o r as the condition on which he is to gralit her a divorce, dr which is
foion°”for fettled on a perfon as his hire or reward, or made over in compofition
for wilful murder, or affigned over as the ranfom of a flave; for with
compofition us lt -g I ruie that shaffa fhall not take place unlefs there exift an ex-'
fo r rfiurdtr, •*' . ’ . . r
or as the price change of property for property, which is not the cate in any or thele
inftances, as the matters to which the houfe is oppofed are not property.
Shcfei holds Shcffa to take place in all thefe cafes 5 becaule,
although the matter to which the houle is oppofed be not property,
it is neverthelefs capable of eftimation, (according to his tenets,) and
therefore
therefore the houfe may be taken upon paying the value of the matter
to which it is oppofed, in the fame manner a9 in the fale of a property
for a confideration in goods or effedts; It is to be obferved, however,
that this opinion of Shafei obtains only with refpedt to a cafe where a
■ part of a houfe is affigned as a dower, or made over as a confideration
for Khoola, a- compofition for murder, and fo forth; for, according
to his tenets, there is no Shaffa except in cafes of joint property 1
If a man marry a woman without fettling on her any dower, and
afterwards fettle on her a houfe as a dower, the privilege of Shaffa
does not take place, the houfe being here confidered in the fame light
as if it had been fettled on the woman at the time of the marriage__
It is otherwife where a man fells his houfe in order to difchar°-e his
wife’s dower either proper or Jiipulated-, becaufe here exifts an exchange
of property for property.
If a man, on his marriage, fettle a houfe upon his wife as her
dower, and ftipulate that Ihe fhall pay him back, from the price of
the houfe, one thoufand dir ms, according to Haneefd the privilege
of Shaffa does not take place relative to that houfe; whereas the two
difciple:|ffiold that it affedts a part of the houfe equivalent to one thoufand
<Urtns *.
T he privilege of Shaffa does not operate relative to a houfe concerning
which there has been a difpute betwixt two men, compro-
mifed by the defendant (who was the pofleffor) paying the plaintiff a
fum of money, after denying his claim; for in this cafe, the compro-
mife being made after the denial, the houfe, in the imagination of
the (defendant, ftill belongs to him under his original right of property,
* T h e reafonings on both frdes are here recited at larg e; but are omitted in the tranf-
lation, as containing merely a firing o f metaphyfical fubtilties o f little or no ufe.
V o l . III. 4 g
It holds with
refpett to a
houfe fo ld in
order to pay
the döwer.
It does not
hold with re-
fpe& to a
houfe thepof-
feffion o f
which iscom-
promifed by
a fum o f
money.
and