option is Shafe
e o f the adjacent
property.
T h e right
does not hold
with refpeft
to a property
transferred
under an in-
v a lid fale.
joining houfe.— I f it be the feller, he is the Shafee,. becaufe whilft he
retained the power of diflolving the bargain, his right of property remained
unextinguiftied;— or, i f it be the purchafer, his claiming the
Shaffa of the fecond houfe is a proof of his inclination to keep the firft,
and not to avail himfelf of his power of diflolving the b a rg a in—his
right of property is therefore held to commence from the time of ad-
jufting the bargain; and in confequence of his right of property in
the firft houfe, he has the right of Shaffa with refpedt to the fecond.
If, in this call, the Shafee of the firft houfe Ihould afterwards come
and claim his right, he is entitled to the Shaffa o f the firft houfe ;_
but he is not entitled to that of the fecond, becaufe the firft houfe was
not his property at the time when the fecond was fold.
If a man purchafe a houfe without feeing it, and afterwards, in
virtue of his privilege of Shaffa, take the adjacent houfe, which happens
to be fold, ftill his power of rejecting the firft houfe on feeing it
does not ceafe; for as it would not be annulled even by an exprefi. renunciation,
it confequently is not annulled by an aft which affords
only a prefumption of renunciation.
T he privilege of Shaffa cannot take place regarding a houfe tranf-
ferred by an invalid fale, either before or after the purchafer obtaining
pofleffion of i t ; for, before the purchafer obtains pofleffion, the houfe
belongs as ufual to the feller, and his right of property is not extin-
guifhed, and after he has obtained pofleffion there is ftill a probability
that the bargain'may be diffolved, fince the l a w admits the diffolution
of a fale, in a cafe of invalidity, in order to obviate fuch invalidity, an
efFedt which could not be produced if the privilege of Shaffa were
allowed. If, however, the purchafer put an end to the poflibility of
the diffolution by any particular adt, fuch as by eredling buildings
on the ground, or the like, the privilege of Shaffa may take place,
fince the impediment then no longer exifts.
I f
If the houfe adjacent to one which has been transferred by an invalid
fale be fold whilft the one fo transferred is ftill in the poffeftion of
the feller, he [the feller] is the Shafee of the adjacent houfe, becaufe
of the continuance of his right in the other.
I If the 1"eller have delivered over the firft houfe, previous to the
Kazee decreeing to him the Shaffa of the adjacent one, the purchafer,
becaufe of the property he has acquired in obtaining pofleffion of the
firft houfe, is the Shafee of the fecond. It is otherwife where the feller
delivers over the firft houfe after the Kazee has decreed to him the
Shaffa of the fecond; for in this cafe his right of Shaffa is not invalidated
; becaufe, after the decree o f the Kazee has pafled, it is no
longer neceflary that he preferve his right of property in that houfe
front which he derived his right oi Shaffa.
If the feller take back the firft houfe, previous to the Kazee decreeing
the Shaffa to the purchafer, his [the purchafer’sj right of Shaffa
becomes null; becaufe his right of property in that houfe from which
he derived it has ceafed previous to its being granted him by a decree
of the Kazee. If, on the contrary, the feller do not take back the firft
houfe until after the Kdzee has decreed the Shaffa of the fecond to the
purchafer, his [the purchafer’s] right of Shaffa is not invalidated;
becaufe, at the time it was decreed, the houfe from which it was derived
was his property; and (as we have’ already obferved) after the
decree of the Kdzee has patted it is no longer neceffary that he preferve
h.s right of property in that houfe from which he derived his
right of Shaffa.
mSOm m°re paftnerS divide the §round I which they have
hitherto held a joint property, the privilege of Shaffa cannot be claimed
y any neig our; becaufe, although the divifion of joint property bear
e charafteriftic of an exchange, yet it alfo bears the charafteriftic of
a Separatum, namely, a feparation of the rights of one perfon from
thofe
T h e feller o f
a property,
under an invalid
fale, is
ftill Shafee o f
the adjacent
property,
until he deliver
the property
fold to
thepurchafer,
who then has
the right,
which, how*
ever, fails
upon the feller
refuming
his property.
A r ig h t o f
Shaffa is not
created by
partners
making a
partition o f
their joint
property.