thofe of others, a thing which may be done by corhpulfion, finoe any
one of the partners may caufe it to be effe&ed by an application to the
Kdzee, notwithftanding it be contrary to the inclination of the others.
It is not therefore a pure exchange, which admits of no compulfion,
but mull be accomplifhed by the concurrence of both parties; and the
privilege pf Shaffa is admitted by the i,aw to operate only in cafes of
a pure exchange, ,
The right once I f a man purchafe.a houfe, and the Shafee relinquifh his privilege,
cannot after- and the purchafer afterward* rejeft it in virtue of an option of infpeo-
fiimed re" '•ton, or a condition of option, or by a decree of the magiftrate in virtue
of an option from defeft, the Shafee is not entitled to claim His privilege,
whether the man had ever taken pofleffion of the houfe or not;
and fo likewife, if the man, before taking pofleffion, rejedl the houfe
on difeovering a blemiih, without a decree of the Kdzee-, for as, under
all thofe circumftances, the rejection is a diflblution of the bargain,
the houfe reverts to its original proprietor; and the privilege of Shaffa
is not eftablilhed but on the notification of a new fale. If,, on the
contrary, the purchafer rejedt the houfe on difeovering a blemiih in it,
after having taken pofleffion without a decree of the Kdzee,— or, if the
feller and purchafer agree to diflolve the contradt,— the privilege qf
Shaffa is eftablilhed to the Shafee; becaufe in thofe inftanc.es the rq-
jedtion or diflblution is a breaking off with refpedt to the feller and purchafer,
inafmuch as they are their own mailers, and moreover will and
intend a breaking o ff:— yet with refpedt to others it is not a breaking off,
but is rather, in effedt, a new fale, fince the charadteriftic o f ,fale,
namely, an exchange ofproperty fo r property with the mutual confent o f
'the parties, e x ilts in it; and as the Shafee is another, it is therefore a
fale with refpedt to him, whence his right of Shaffa mult be
admitted.
CH A P .
C H A P . IV.
O f Circumftances which invalidate the Right of Shaffa.
I f the Shafee omit to proqure evidence of his having claimed his A right of
Shaffa on being informed of the fale,. notwithftanding his ability fo to S ilted by
do, his right of Shfffa is void, becaufe of his neg-lefiting to claim it._ the spa/u
In the lame manner alfe, if he prefer the Falb Mawdjibat, or immediate pto'cure^evi-
claim, and omit the Falb Ifh-hdd wa fakreer, notwithftanding his
ability to make, it, his right of Shaffa is void, as has been already
explained.
If the Shafee agree to compound his privilege of Shaffa for a com- or by hi,of-
penfation, he thereby invalidates his right, and is not entitled to the fering.t0"OT-
Gompenfation; for he has no eftablilhed as property in the place
in difpute, but merely a power of infilling on becoming the proprietor
in exclulion o f the purchafer; and as, therefore, a renunciation o f
Shaffa (underftood in renouncing all right to difturb the proprietor in
the enjoyment of the property) is. not a fubjedl of exchange, it follows
that no confideration can' be demanded for it. As, moreover, the re-
linquilhment of the right could not lawfully be fufpended even upon a
valid condition, that is, a condition proper to it, (fuch as a ftipula-
tion of giving up fomething in return which'is not property,) it follows
that it cannot be lawfully fufpended upon an /«valid condition,
or condition not proper to it, (fuch as a condition of giving up property
in return for a mere right, which is not property,) a fortiori.
T h e condition of a return is therefore null, and the relinquilhment
of the right remains valid without a r e t u r n a n d the cafe of a perfon
S felling
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