9° C L A I M S . B o o k XXIV .
Mode of
fwearing the
parties in this
inftance.
in cafes where the fubjetl of the fale ftill completely exiftsr but
where a part of the fubjed is deftroyed,it does not completely exift;
becaufe the complete exiftence of it fuppofes- the exiftence of the whole',
and the whole cannot exift but by the prefervation of all its parts.— If,
on the other hand, both parties ftiould fwear with refped to the livirig'
Have only, it is evident that this cannot be effeded, but by a reference
to his particular value.— Now as both Haves. are included under one
price, the particular value of each cannot be known but by conjedure;
and hence it appears that the fwearing of both parties, under ftrch cir-
cumftances, muft be referred to fomething uncertain; and this is illegal.—
If, however, the feller be willing to relinquilh bis right to the
deftroyed Have, and to confider him as having never exifted, both
parties may, m that cafe, be fworn as to their denial of the claim of
the other, refpeding the whole price of both the Haves; becaufe the
whole of the price is then oppofed to the living Have, from the con-
ceffion of the feller to take the living Have only in lien of the whole of
the price, and to confider the dead Have as excluded from the contract.—
What is here advanced is agreeable to the expofition of feveral
of our modern dodors. T h e y have alfo explained the meaning of the
fentence, in the JamaSagheer, to be that the feller fliall not abfolutely
receive any thing for the dead Have; and they have connected the exception
with the omiffion of fwearing of the parties.— Others of our
modern expofitors, however, have explained it to mean that the feller
lhall agree to take, as the price of the dead Have only, what the buyer
may acknowledge, and nothing more; and they have connected the
exception with the non-fwearing of the buyer only.— Thus they have
explained it to -mean that the feller may take the living (lave, without
the neceflity of the purchafer’s taking an oath, provided he be willing
to take, for the dead Have, what the purchafer may of himfelf acknowledge
to have been his value.— The mode of fwearing the parties;
in this inftance, (according to Mohammed,') is the fame as in a
cafe of non-exiftence of the fubjeCt of the fale.— If, therefore, both
take an oath, and differ in their aflertions,— and if one or both thou Id
7 require
require the diflolution of the contrad, the Kdzee muft, in that cafe,
diffolve it, and command the purchafer to return the living Have, and
the value of the dead one; and, in the determination of the yalue of
the dead Have, the purchafer’ s aflertion muft be credited.— There is,
however,” a difference of opinion among our modern commentators,
in their expofition of the doCtrine of A boo Toofaf, with refpeCt to the
mode of fwearing the parties, in this inftance.— The mod approved
mode is, to tender an oath to the purchafer that “ he had not purchafed
“ thofe two Haves for the price claimed by the feller;”— and in cafe
of his refufal to take the oath, to confirm the claim of the feller: but
i f he fwear accordingly, an oath muft then be tendered to the
feller, that “ he did not fell thefe two Haves for the price claimed by
“ the purchafer;” and if he ftiould refufe to take it, the claim of the
purchafer muft be confirmed: but if he fwear accordingly, the fale
(fo far as it relates to the living Have) muft then be diflolved, and the
purchafer muft be refponfible for the price of the living Have.— In proportioning
the refpedive prices of the two Haves, regard muft be had
to the value they bore on the day in which the purchafer took poflef-
fion of them. I f the parties ftiould difagree as to the value the dead
Have bore on the day of delivery, the bare aflertion of the feller is to
be credited in preference to that of the purchafer. If, however, either
of the parties produce evidence, it muft be admitted in preference to
the other’ s aflertion; and if both ftiould produce evidence, that of the
feller muft be admitted.— This is agreeable to the analogy fet- forth and
exemplified in a cafe recited in the Mabfoot', and which is as follows.—
I f a perfon, having purchafed two Haves by one contrad, and taken
pofleffion of them both, ftiould afterwards return one of them on account
of a defect, and the other fhould then die in his pofleffion, in
that cafe he muft pay the price of the Have that died; and he becomes
exempted from the price of the other that he returned;— and, in proportioning
their refpedive prices, regard muft be had to the value of
each on the day in which the purchafer obtained pofleffion of them.—
If the parties ftiould difagree concerning the yalue of the dead Have, the
N 2 aflertion