It holds with
refpeft to a
houfe made
over, in compaction
:
but not with
refpeffc topro-
perty tranf-
ferred by
grant.
and confequently no fale or exchange of property for property can here
be eftablifhed in regard to him;— and fo like wife if he refufe to anfwer
to the fuit, and then compromife it with a fum of money,— fince it
may be. fuppofed that he has. parted with his money rather than be
under the neceflity of taking an oath, even with truth bn his. fide, or
of involving himfelf in litigious difputes and broils. If,, on the contrary,
he confefs the juftnefs of the plaintiff’s claim, and then compromife
with a fum of money, the privilege o f Shaft'd takes place j
becaufe as he has here acknowledged the plaintiff’s, right to the houfe,
and retained it afterwards in virtue of a compromife, an exchange
of property for property is clearly eftablifhed in this inftance,
If a defendant compromife a fuit by refigning or making over a
houfe to the plaintiff, after having either denied his claim or acknowledged
it, or refufed to anfwer it, the right of Shaffa is' eftablifhed
with refpeCt to the houfe; becaufe, as the plaintiff here accepts the
houfe in confideration of what he conceives to be his right, he is
therefore [in adjudging the right of Shaffa againft him] dealt with
according to his own conceptions.
T h e privilege of Shaffa is not admitted in the cafe of grants,—
unlefs when the grant is made for a confideration, in which cafe it is,
in effedt, ultimately a fale. Still, however, the privilege of Shaffa
cannot be admitted, unlefs both parties have obtained pofleflion of the
property transferred to them by the terms of the grant; (nor i f the
thing granted on either fide be an indefinite part of any thing;) for a
grant on condition of a return is ftill a grant in its beginning, as has
been already explained in treating of gifts. It is further to be obferved
that the privilege of Shaffa cannot be admitted, unlefs the return be
exprefled as a condition on making the grant; for if it be not fo ex-
preffed, and the parties give to each other reciprocal prefents, thefe
prefents on both fides are held as pure grants, although each of them
having
having met with a requital of his generality, neither is allowed the
power of retreating.
If a man fe ll\ iis houfe under a condition o f option*, the privilege
of Shaffa cannot take place with refpeCt to that houfe, the power re-
ferved by the feller being an impediment to the extinction of his right
o f property: but when he relinquifhes that power, the impediment
ceafes] (and the privilege of Shaffa takes place, provided the Shcfee
prefer his claim immediately. This is approved.
If, on the contrary, a man purchafe a houfe^under a condition of
option, the privilege of Shaffa takes place with refpedt to i t ; for fuch
a power referved by the purchafer' is held, in the opinion of all the
learned, to be no impediment to the extinction of the feller’s right of
property; and the right of Shaffa is founded and refts upon the
extinction of the feller’s right of property, as has been already explained.
I f the Shafee take the houfe during the purchafer’s right of option,
(namely, three days,) fuch right ceafes, and the fale is completely
concluded; for the purchafer, as no longer ’having the houfe in his
poffeflion, is no longer capable of rejecting i t ; and the Shafee cannot
pretend to claim the power of diflolving the bargain, fince that
power was founded in a condition eftablifhed in favour of the purchafer
only.
If, whilft one of the parties, either purchafer or feller, has the
power of diflolving the bargain, the houle adjoining to the one in
queftion be fold, he who pofiefled fuch power is the Shcfee of the ad-
* T h a t is, “ referring to himfelf the power o f hereafter dihblving the fale.” (See
V o l. II. p. 362 to 406.
4 G 2 joining
It cannot take
place with re-
fpe£t to a property
fo ld
under a condition
o f option:
but it holds
with refpeft
to a property
fo pur chafed’,
and on the
Shafee taking
pofleflion, the
pufchafer’s
right o f option
céafes.
In a cafe o f
fale upon option,
the pof-
feflor o f the