or where he
has been mif-
informedcon-
ceraing the
article fold.
Device by
which the
rightof Shaffa
may be evaded.
Café o f a
houfe pur-
chafed in
chafers, (viz. the one whofe name he firft heard of, and another,)
he is entitled to take his Shaffa from the one in whofe favour he had
not refigned it.
If news be brought to the Shafee that one h a lf of the houfe is fold,
and he refign his right, and it afterwards- appear that the whole was
fold he rauft ftill in fuch cafe claim his Shaffa, fince it is to be fup-
pofed that he at firft refigned his right in order to avoid the inconvenience
of a partner, Whereas if the whole be fold there is no occa-
fion for his being fubjeft to any fuch inconvenience. If, on the
contrary, the Cafe be- reverfed, that is to fay, if he firft learn that
the whole, and afterwards that only the h a lf is fold, he is not (according
to the Zahir Rawctyet) entitled to claim his Shaffa, becaufe.
his refiguatioii of the whole comprehended his refignation of a fa rt.
S E C T I O N .
Where a man fells the whole of his houfe, excepting only the
breadth of one yard extending along the houfe of the Shcfee, he [the
Shafee] is not in this cafe entitled to claim his privilege, becaufe of his
neighbourhood being thus cut off. This is- a device by which the
Shafee may be difappoiiited of his right; and it is ftill the fame, if the
feller grant the intervening part of his houfe as a free gift to the pur-
chafer, and put him in pofleffion of it.
If a man purchafe, firft, a Jhare of a houfe, fuch as a third or a
fourth, and afterwards the remainder,—the neighbour has the privilege
of
o f Shaffa over that fhare which was fir ft bought, but not over that
which was lafi bought; for although, Us being a neighbour, he is entitled
to that privilege over both, ftill the purchafer has a fuperior
right to the Shaffa of the remainder o f the houfe,' as being a partner
therein, the right of a partner fuperfeding that of a neighbour, as has
been already explained. If, therefore, a man wilh to difappoint a
neighbour of his right of Shaffd, he may do it by firft purchafing a
part of the houfe, for the price he means to give for the whole, excepting
only a fingle dirm, which he may afterwards give as the price
of the remainder, ’
If a man pUrchafe a houfe for a certain price, and afterwards, in
lieu of that priSey give a Jamnia, Or gown, to the feller, the Shafee
muft take the houfe for the pr ice fir ft fettled, and not for the value of
the gown; for the exchanging of the price for the gown was a diftiinft
and feparate bargain; and the price which the Shafee is to pay is. on
account of the houfe, not on account of the sown. T h e compiler of
the Heddya remarks that this alfo is a device, by which the right of
Shaffa, either in a partner or a neighbour, may be eluded; as the
houfe may be fold for a price equal to twice its value, and then, in
lieu of that price, a gown may be given to the feller equal to the real
value of the houfe. Such an evafion, however, may be productive
o f Iofs to the feller in cafe the houfe fhould afterwards prove to have
been the right of another; for then the purchafer of the houfe is entitled
to receive back, from the purchafer of the gown, (that is, the
feller o f the houfe) the whole price of the houfe, which was much
more than adequate to its value, the bargain regarding-the gown remaining
undiflolved. There is, indeed, one mode by which'the
feller may avoid the rifk of fuch a lofs; and that is, by pUrchafing,
in lieu of the number of dirm for which the houfe was fold, a quantity
of deenars;— for, as this is a S ir f fale, it follows that, upon the
right o f another appearing to the houfe, the agreement becomes null,
as mutual feizin, which is a condition of S tr f fale, does not here
^ exift;
lhares, by the
fame perfon,
at different
times.
Where the
price o f the
property fold
is compro-
mifed for a
fpecific article,
the
Shafee, i f he
infill on his
right, muft
pay the price.