the doctrine of Mohammed, o f {wearing both parties under fuch cir-
cumltances.
R e p l y .— The advantage is that it relieves the purchafer from the
excels of the price, in cafe the feller fhould refufe to take an oath,— as,
in. the fame manner, it obliges the purchafen to pay fuch excels, in cafe
he himfelf fhould refufe to take an oath.
•— They mull therefore both be fworn, in the fame manner as when,
after the deltrudtion of the fubjedt of the fale, they, difagree with regard
to the genus of the price, (that is, whether it confilt of dirms or
deendrs:) and after fwearing, the purchafer mult give the value of the
goods to the feller, and the feller mull return the price to the purchafer.
T h e arguments of Haneefa and Aboo Toofcf, in fupport of their doctrine
upon this point, are twofold.— F i r s t , the fwearing of both
parties, after delivery of the goods, is repugnant to analogy; beeaufe
the purchafer has, in this cafe, received whole and complete the thing
which he claims: the fwearing of both parties, moreover, is ordained
by the l a w in cafes only where the fubjedt of the fale is extant and
complete, to the end that the fale may be diflolved; but this cannot be
conceived in a cafe where the fubjedt of the lale has perilhed; fwearing
the parties, therefore, after a deltrudtion of the property, is not
that mutualfwearing exprefled in the l a w .— S e c o n d l y , in the cafe
in queltion the object of the fale (namely, the complete acquilition of
the goods by the purchafer) is obtained; and after the completion of
the. object, a difagreement with relpedt to the inftrument (that is, the
contrail o f fale') is of no importance.— Moreover, the advantage fet
forth by Mohammed is of no account; lince no advantages are attended
to excepting fuch as are occalioned by the contradt of fale; and the advantage
in queltion is not occalioned by the contradt.— All that is here
advanced proceeds on a fuppolition that the price is a money-debt.—
If, however, it conlill of any fpecific article, fuch as cloth for inltance,
both the parties are to be fworn, according to all our dodtors ; beeaufe,
in this cafe, a fubjedt of fale Hill exilts, (lince the price, where it
confilts of any thing fpecific, may be confidered as the fubjedt;) and
upon
upon both parties fwearing, the fale mult be diflolved; and the feller
mult return the price to the purchafer; and the purchafer mull give a
limilar in lieu of the fubjedt of the fale to the feller, provided it was of
that kind of thing compenfable by fimilars; or, if otherwife, he mult
pay the Value.
If a perfon purchafe two Haves by one contradt, and one of them Cafe of a dif-
be afterwards deltroyed, and a difpute arife betwixt the parties con-
cerning the amount of the price, the feller aflerting that it was two °f two Haves,
thoufand dirms, and the purchafer aflerting that it was one thoufand, them dies,
in this cafe (according to Haneefa) the parties are not to be fworn; on
the contrary, the aflertion of the purchafer mult be credited. This,
however, proceeds on the fuppolition of the feller being unwilling to
receive the price of the living Have only, and to relinquilh the price
of the Have that is dead.— In the °fama Sdgheer it is related that, according
to Haneefa, the aflertion o f the purchafer is to be credited,
unlefs the feller be willing to accept of the price of the living Have
only.— Aboo Toofcf alleges that both parties mult be fworn with regard
to the living Have;— that the fale, fo far as relates to him, mull
be diflolved;— that the aflertion of the purchafer mult be credited with
refpedt to the dead Have;— and that, therefore, the purchafer is re-
fponfible for the proportion of the dead Have, and not for the whole
price.— Mohammed, on the other hand, maintains that both parties
mull be fworn with regard to both Haves; and that afterwards the
purchafer mult return the living Have and the value of the dead one; ‘
beeaufe, as (in his opinion) the deltrudtion of the whole fubjedt of fale
does not prevent the fwearing of both parties, it follows that the. deltrudtion
of a part only does not prevent it, a fortiori.— The realoninv
of Abso Toofaf is that as the obllacle to the fwearing of both is
grounded only on the deltrudtion of the fubjedt of the fale, it ought of
courfe to operate only in the degree in which it may have been de,-
flroyed.— T h e realbning of Haneefa is that the fwearing of both
parties, although repugnant, to analogy, is. yet eltablilhed by the l a w ,
V o l . III. :N I I