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84 C L A I M S. B o o k XXIV';
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content to make up their difference.— If, neverthelefs, they fhould
not even then agree, thq Kdzee muff make each of them fwear to his
denial o f the claim of the other.— This mutual fwearing, before feizin
of the article of fale, is .conformable to analogy; becaufe the feller
demands ä large price, which the purchafer does not admit; whilft, on
the other hand, the purchafer demands from the feller the delivery of
the goods at the fate of purchafe money he has paid, which the feller
refufes to execute. Each, therefore, is a defendant; and hence' an
■ oath muft be required from each.— After the delivery of the goods to
the purchafer, indeed, the mutual fwearing would be contrary to analogy
; becaufe the purchafer having received the goods has no further
claim; and as there remains only the claim of the feller for the excels
of the price, an oath can only be exafled from the purchafer, who is
the defendant. It appears, however, from an infallible guide, that art
oath muft, in this cafe alfo, be exacted from each, becaufe the prophet
has faid “ Where a difagreement takes place between a buyer and
‘ ‘ feller, and the fubjedt o f the fale is extant and prefent, an oath muß
“ in that cafe be adminißered to each, and the purchafer muß cfterwards
“ reßore the goods to the feller, and thefeller the price to the purchafer
It is to be obferved that where it is neceflary to adminifter an oath to
both parties, the purchafer muft be firft fwom.— This doctrine is conformable
to the moft recent opinion of the two difciples ; and it is alfo
agreeable to one report of Haneefa. It is alfo the moft authentic doctrine;
becaufe the denial of the purchafer is of the greateft importance,
fince the price is firft demanded from him; and alfo, becaufe, in cafe
of his refufal to take the oath, it would be attended with the immediate
advantage of inducing the obligation upon him of jhe payment of
the price;— whereas, if the feller were firft fwom, it would neverthelefs
be neceflary to defer the demand upon him of a delivery of the
goods until he had received payment of the price.— If the parties
fhould difagree in a fale of goods for goods, (that is to fay, in a barter,)
or of price for price, (that is, in a S ir f fale,') in this cafe the Kdzee is
3 at
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C h a p . I I I . C L A I M S . 85
at liberty either to fwear the feller or the purchafer firft ; becaufe
in fuch a cafe the feller and purchafer are. both upon an equal
footing.
T h e nature of the oath, in a difagreement between buyer and
feller, is this.— T h e feller fwears “ by G o d , I have not fold the
“ thing in queftion for a thoufand dirms f and the purchafer fwears
“ by G o d , I have not bought it for two thoufand dirms." Mohammed,
in the Zeeaddt, has faid, “ let the feller fwear by G o d , I have not
“ fold it fo r o n e thoufand d i r m s , but fo r t w o thoufand;— and let
“ the purchafer fwear, by G o d , 1 have not bought it fo r t w o thou-
“ fand d i r m s , but fo r o n e thoufand.”— In other words, the negation
and affirmation ought to be coupled together for the greater caution.—
The moft authentic dodlrine, however, is that an oath of negation is
fufficient; becaufe oaths proceed upon denial, as appears from the tradition
concerning Kijfdmit * ; for it is related that the prophet defired
the people of Kiffdmit to fwear that “ by G o d , they had not com-
“ mitted the murder, and did not know the murderer.”
I f the feller and purchafer, in a difagreement, fhould both take an
oath, the Kdzee muft in that cafe diffolve the fale.— This is:the adjudication
of Mohammed: and it evinces that the fale is not c f itfelf dif-
folved by the mutual fwearing of the parties; becaufe, as the plea of
neither party is eftablifhed, a fale continues of an undefined nature;
and hence the Kdzee muft diflolve it, as well to terminate their contention,
as becaufe that, where the price is not eftablifhed, a fale remains
without a return; and this being an invalid fale muft confequently
he diflolved, fince it is indifpenfably requifite that all invalid fales be
diflolved.
* T he name of fome jJrabian diftrict or tribe, where probably one of the prophet’s
followers was murdered.
I f,
Formula o f
the oaths o f a
feller and
purchafer.
Where both
parties fwear,
the fale mud
be diflolved,
by an order
o f the Kazee.