A feller or
purchafer,
upon declining
to fwear,
lofeshiscaufe.
T h e parties
are not to be
fworn where
their difa-
greement relates
to fome-
thing not effen
tial to their
contract.
Ifj in a difagreement between a purchafer and a feller, one of the
two decline fwearing, the claim of the other is in that cafe eftablifhed
againft him; becaufe by fuch refufal the party concedes to the other
the article claimed by h im —for as his plea is thus rendered incapable
of controverting the plea o f the other, it follows that he accedes to that
plea.
I f the parties fhould difagree with refpedt to the period fixed for
^he payment of the price, or with refpedt to the option of determination,
or with refpedt to a partial payment that may have been made of
the price,— in none of thefe cafes are the parties to be fworn, becaufe
the difagreement, in this inftance, relates to fomething not within the
original fcope of the contradt. This difagreement, therefore, refem-
bles a difagreement with refpedt to an abatement or remiflion of the
price;— in other words, if a feller and purchafer fhould difagree with
regard to a remiflion of part or the whole of the price, they would not
in that cafe be fworn; and fo alfo in the cafe in queftion.— T h e rea-
fon for what is here advanced is that the difagreement, in all of. the
fuppofed cafes, relates to a thing which, if annihilated or done away,
would not affedt the exiftence of the contract of fale.— It is otherwife,
however, where the difagreement relates to the fpecies of the price,—
(fuch as whether it is to confifl of dirms of Bokhdra or of Bagdad,)—
or with refpedt to the genus of it, (fuch as whether it is, to confifl of
Jirpis or of deenars,) for fuch a difagreement is the fame as if it related
to the amount of the price,— in which cafe oaths are adminiflered,
for this reafon, that the genus and fpecies of the price are infeparable
from thefubjiance of i t ; becaufe the price is a debt due by the purchafer;
and a debt is only to be known and afcertained by a definition of its
genus and fpecies. T h e period fixed for the payment of the price, on
the contrary, is not o f this nature, as it is not a fpecies of it, whence
it is that the price continues extant and firm after the promifed time
of payment has elapfed.
5 I f
If a difagreement take place between a feller and purchafer with
refpedt to the condition o f option, or the period of payment, the afler-
tion of the refpondent * fupported by an oath, muft be credited; becaufe
optional conditions, and extenfions of the period of payment,
are accidents in a fale ; and w'ith regard to accidents, the alfertion of
the refpondent muft be credited in preference.
I f , after the deftrudtion of the fubjedt of a fale, in the hands of
the purchafer, a difagreement fhould take place between the purchafer
and the feller refpedting the amount of the price, the parties, in that
cafe, (according to Haneefa and Aboo YoofafP) are not to be fworn,
but the aflertion of the purchafer muft be credited.— Mohammed alleges
that, in this cafe, the parties muft be both fworn, and afterwards the
Me diflolved, in return for the value of the fubjedt of it which had
been deftroyed;— that is to fay, the purchafer muft pay the value of
the goods to the feller, who muft return to the purchafer the price
of them.— Such, alfo, is the d o c t r in e of Shafei.— The fame difference
of opinion obtains in cafes where the fubjedt of the fale has been removed
from the property of the purchafer by g ift or the like, or
where it is in fuch a condition as would preclude the return of it in
cafe of i. defedi.—The reafoningof Mohammed and Shafei, in fupport of
their opinions, is that each party pleads the exiftence of a contradt;
different from what is claimed by the other; and each of them, con-
fequently, denies the aflertion of the other.
O b j e c t i o n .— T h e advantage of adminiftering an oath to each of
the parties is that the fale is thereby diflolved, and the goods returned'
by the purchafer to the feller, and the price by the feller to the purchafer.—
Now this objedt cannot be obtained after the -deftrudtion of
the fubjedt of the fale, and therefore there can be no advantage in
In difputes
refpefting
any fuper-
added ftipu-
lation, the
aflertion o f
the refpondent
muft be
credited.
The parties
are not to be
fworn, where
the goods
perilh in the
hands o f the
purchafer.
* Arab. Moonkir.— meaning, the perfon who denies.
t T h a t is* are fuperadded to the contrast.
the