exift ; beeaufeas it here appears .that the feller was not entitled to the
price of the houfe in lieu of which he purchafed or accepted.^aarr,
he is obliged to reftore the deenars, but nothing more.
A d e v i c e , as.above defcribed, for eludingthe privilege• of Shaffa,
is not abominated by Aboo Toofaf. According to Mohammed, however,
it:is abominable; becaufe (as he argues) the privilege of Shade
is inftituted folely with a view to prevent the inconvenience which
might otherwife.enfue to the Shafeez but i f devices are admitted to
elude and fet at nought his privilege, the inconveniences which may
enfue will not be prevented, and the end of the inftitution will be
defeated. The argument of Aboo Toofaf is, that as the above devices
prevent the right of Shaffa from ever being eftablifhed, the inconveniences
that may accrue to the Shafee ought .not to be confidered.
S E C T I O N .
M i s c e i l a n e o u s C a s e s .
TheShafee
may take a
{hare from
one o f feveral
purchafers-,
but if there
be feveral
fellers, and
only one pur-
chafer, he
mull take or
relinquilh the
•whole*
I f five perfons purchafe a houfe from one. man, the Shafee may
take the proportion of any one o f them. If, on the contrary, one
man purchafe a houfe from five perfons, the Shafee may either take or
relinquifh the whole, but is not entitled to take any particular fhare
or proportion. T h e difference between thefe two cafes is that if, in
the latter inftance, -the Shafee were allowed to claim a part, it would
occafion a difcrimination in the bargain to the purchafer, and be productive
of very great inconvenience to him; whereas, in the former
inftance, the Shafee being merely the fubftitute of one of the five pur-
chafers, no difcrimination in the bargain is occafioned. There is no
difference
difference in the law in either o f thefe cafes, whether, in making the
purchafe, a certain proportion of the price had been fet againft each
proportion of the houfe,— or whether one price had been in general
terms agreed upon for the whole; for the law is grounded only upon
the difcrimination in the bargain. Neither is- there any difference
whether the Shafee take his right-before the* purchafer has obtained
pofleffion-, or delay it until after*.— This is approved. It muft, however,
be obferved, that if one o f the purchafers have not obtained
pofleffion, although-he have paid his proportion of the price, the Shafee
is not entitled to take his fhare of the houfe until the reftof the purchafers
have alfo paid their refpective proportions of the price; for
otherwife, a part of the houfe being in the pofleffion o f the Shafee^
and a-part ftill remaining in that of the feller, it is to-be apprehended
that* the feller might fuffer vexation from having a.bad neighbour. In
fhort, the Shafee here ftands in the room of one of the purchafers;
and one of the purchafers, on paying his proportion of the price, may y
not take pofleffion of' his fhare until the reft [of the purchafers] have
alfo paid their proportion.. It is otherwife after pofleffion; for in that
cafe the Shafee may aflerthis privilege, as the pofleffion of the.feller
is then deftroyed.
If a man purchafe one half of a houfe, and afterwards the feller
and purchafer make the partition betwixt themfelvesj the Shafee may
either take or relinquilh that half which fell to-the lot' of the pur-
chafer, on which ever fide it happens to be fituated: but he cannot
objedt to the partition, and' infift upon a new one; for a Shafee is not
entitled to difturb the pofleffion of ths feller %- and- as partition is an aft
o f inveftiture, he is therefore not entitled'to difturb the partition alfo.
T h is is related as the opinion-of Aheo Toofaf. It-is recorded from Ha-
neefd, that the Shafee is not authorized to take the half in queftion, .
unlefs it happen to be on that fide next to the houfe from which he
derives his right; for if the purchafer’ s lot fall in the other part of the
houfe,.. he [the Shafge\ is not the neighbour... ;
I f
In café o f the
falé and 'partition
o f h a lf
a houfe, the
Shafee may
take the pur-
cha&r’ s lot.