I f one partner
fell his {hare,
the Shafee
may annul
any fubfe-
quent partition,
and take
it for the
price.
A licenced
ilave (involved
in debt)
andhismailer
may b t Shafee
toeachother’s
property.
A 61s o f a father
or guardian
with re-
fpefl to the
Shaffa o f an
infant ward.
- If one of two partners in a houfe fell his ftiafe, and afterwards the
purchafer and the remaining partner make the partition together, the
Shafee may objeft to fuch partition, and. infill npon a new one ; be--
caufe, as no fale took place betwixt the purchafer and the remaining
partner, this partition is not, ftriftly fpeaking, an a8 o f inyeftiture,
but merely an exercife of right of property; and confequeptly, the
Shafee is entitled to annul it, in the fame manner as he may annul any
other aft of property, done, by the purchafer, fuch as file , or gift.
If a man, being pofteffed of a Mazoon [licenced] Have, involved
in debt, fell his houfe, that Have may be the ’Shafee of ife ; And in
the fame manner alfo, if fuch a flave fell a houfe, his maftermay.be
the Shafee of i t ; for the ad of taking, a property by privilege, p iffhaffa
{lands as a purchafe-, and purchafe and fale is admitted betwixt them,
as being attended with advantage, fines it i;s here canfidered tp be on
behalf of the creditors. It is otherwife where the flave is not involved
in debt; for then, if he fell a houfe, it is. on Amount p fh is rnafter;
and the man on whofe account the houfe is fold cannot be thp Shafee.
I f a father or guardian refign the right of Shaffa belonging to their
infant ward, fuch refignation is lawful, according to Aboo Toofaf and
Haneefa. Mohammed and Ziffer fay that it is not lawful; and that,
the right of the infant Shafee being ftill extant, he is entitled to claim
it as foon as he attains maturity. The learned,in the law obferve that
there is the fame difference of opinion in the cafe of a father,or guardian
omitting to makb the claim of Shaffa on being apprifed of the fale
of the houfe;—or of an agent refigning the claim before the tribunal
of the Kdzee. The arguments ufed by Mohammed and Ziffer are twofold.—
F i r s t , it is alleged that, the right of Shaffa being firmly efta-
bliffied in the infant, the father or guardian have not the power of annulling
it, any more than of annulling his right to a fine of blood pr
retaliation.—S e c o n d l y , their authority over the affairs of the infant
is veiled in them in order that they may prevent him from fullering
any
any injury; and if they were to annul his right of Shaffa, they would
occasion an injury inftead of preventing one. The arguments, on the
other hand, in fupport of the doftrine of Aboo Toofaf and Haneefa are
likewife twofold— F ir st , the taking by privilege of Shaffa is virtually
traffic, fince it {lands as purchafe-, and the father or guardian may
therefore rejeft it, in the fame manner as a thing offered for fale.__
S e c o n d l y , the taking by privilege of Shaffa is an a ft of a doubtful
tendency, as it may either be productive of lofs or of gain: the re-
linquiffiing of it may therefore be fometimes the moft for the minor’s"
benefit, inafmuch as the price of the houfe will ftill remain his property;
and as the power of a father or guardian is granted them with
a view to the benefit of the infant* they ought confequently to have
the power of rejection.
—— * guaiuiau, ui uijcn oimcung to claim
the Shaffa, being confidered as a rejection, annuls the rio-ht It is to
be obferved that the difference of opinion above mentioned obtains only
in cafes where the houfe in the neighbourhood of the infant.is fold for
a price nearly adequate to its value: but that where the houfe is fold for ■
more than its .value, beyond what appraifers would rate it at, and which
it would be moft advifeable to avoid, .fome fay that the refignation of
ttie father and guardian is admitted to be lawful by all authorities, as .
being purely advantageous-, whilft others, on the contrary, maintain
that, according to all, it is not lawful; for as the father and guardian are '
not empowered, in fuch a cafe, to take thz Shaffa, fo alfo-they are
not empowered to reject it, but are as f rangers ; and the right-of the
infant ftill continues to exift.
I f a houfe in the neighbourhood of an infant be fold fora price
much inferior to its value, it is recorded as an opinion of Haneefa that
in fuch cafe the refignation of a father or guardian is, invalid.
VOL. III.
* END OF THE THIRD VOLUME.
4 i