felling his right of Shaffa is fubjedt to the fame rule.— It is other-
wife in a cafe of compofition for retaliation; becaufe retaliation is a
right eftablifhed againft the perfon of the murderer in behalf of the
reprefentative of the murdered, who is the avenger of his blood._It
is alfo otherwife with refpedt to a confideration received for manu-
miffion or divorce; becaufe that is a confideration for a right of property
eltablifhed in the fubjed of the manumiflion or divorce._Analogous
to the fc'afe of relinquifhment of Shaffa for a compenfation by
compofition is that where a mam fays to his wife, being under an option
of divorce, “ Chufe me, for one thoufand dirms,” or where an
impotent perfon tells his wife that “ if fire will relinquish her right
“ of diifolvirig the marriage he will give her one thoufand dirms"
for if, in either of thefe cafes, the wife accept the propofal, She forfeits
the power fhe poffefled, and the hufband cannot be compelled to
pay the compenfation.— Bail for the perfon, alfo, (commonly termed
Hdzir Zaminee,) bears a refemblance to Shaffa in this particular; for
if a perfon who is bail for the appearance of a debtor apply to the creditor
and prevail upon him to compromife with him, by relinquilhing
his claim on him as fecurity, for a certain compenfation, the furety is
in this cafe releafed from his engagement, and at the fame time is not
liable for the compenfation.— This is one tradition. According to
another tradition, the furety can neither be made liable for the compenfation,
nor yet releafed from his engagement of bail. Some, alfo,
contend that this laft is the cafe with refpedt to Shaffa, whilft others
maintain that the rule applies to bail only.
d e a u fo f ’ h -lF the m S k d i e ’ h‘S " o h t of I n f becomes extinfl. Shafei
Sbafee before ma‘ntains that the right of Shaffa is hereditary.— The compiler of the
decree.**” ^ e^ay a remarks that this difference of opinion obtains only where the
Shafee dies after the fale, but previous to the Kdzee decreeing him the
Shaffa-, for if he die after the Kdzee has decreed his Shaffa, without
having paid the price, or obtained pofleffion of the property fold, his
right devolves to his heirs, who become liable for the price. The
argument
argument of our doctors upon the point in which they differ from
Shafei is, that the death of the Shafee extinguilhed his right in the
property from which he derived his privilege of Shaffa-, and the property
did not devolve to his heirs until after the fale. Befides, it is
an exprefs condition of Shaffa, that a man be firmly poffelTed of the
property from which he derives his right of Shaffa at the time when
the febject of it is fold, a ‘ condition which does not hold on the part
of the heirs. It is, moreover, a condition that the property of the
Shafee remain firm until the decree of the Kdzee be palled; and as this
does not hold on the part of the deceafed Shafee, the Shaffa is therefore
not eftablifhed with refpedt to any one of his defeendants, becaufe
o f the failure of its conditions.
I f the purchafer die, yet the right of Shaffa is not extinguifhed,
for the Shafee who is . entitled to it ftill exifts, and no alteration has
taken place in the reafons or grounds of his right. T h e houfe, therefore,
is not to be fold for the payment of the purchafer’ s debts, or dif-
pofed of according to his teftament; and if the Kdzee or executor fell
it in order to difeharge the debts of theeftate, or if the purchafer have
bequeathed it, the Shafee may render any of thefe, tranfadtions void,
and may take the houfe; for the right of the Shafee is antecedent,—
whence he has the power of annulling the purchafer’s adts with refpedt
to the property, even during his lifetime.
If the Shafee, previous to the decree of the Kdzee, fell the houfe
from which he derives his right of Shaffa, the realbns or grounds of
his right being thereby extinguilhed, the right itfelf is invalidated,
notwithftanding he be ignorant o f the fale of the houfe to which it
related;— in the fame manner as where a man relinquilhes his Shaffa
without being informed o f the fale, or acquits a perfon of a debt without
knowing the amount; in the firft of which cafes the right of
Shaffa is invalidated, and in the fecond the debtor is acquitted. It is
otherwife where the Shafee fells his houfe upon a condition o f option -
- ■ w m . 4 H & r
It is not invalidated
by
the death o f
the purchafer,
and therefore
cannot bedif-
pofed o f on
his behalf.
It is invalidated
by the
Sbafee felling
the property
whence he
derived his-
light!