or whether it be equal to, or lefs than, that of the hujband.— In the
opinion of Haneefa and Mohammed, the oath is firft to be adminiftered
to the hufband, in order that the advantage arifing from his declining
to fwear may be quickly obtained; for, as it is his bufinefs firft to advance
the dower, he muft be firft fworn,— in the fame manner as, in
a cafe of feller and purchafer, the purchafer is firft fworn.— T h e ex-
pofition of Razee is, however, different; but as that, as well as the
difagreement of Aboo Yoofaf, have been particularly explained under
the head of marriage, it is not neceffary to repeat them.
I f a hufband and wife difagree concerning the dower,'— the hufband.
aflerting that he had agreed to give a particular male {lave, and
the wife aflerting that he had afligned a particular female flave,— in
this cafe the rule holds the fame as in that immediately preceding;
that is, if the woman’ s proper dower be equal to, or greater than, the
value of the male flave, the Kdzee muft adjudge in favour of the hufband',
but if it be equal to, or greater than, the value of the female
flave, the Kdzee muft decree in favour of the wife.— The. only difference
between this cafe and the preceding, is that if the female flave
and proportionable dower be equal in point of value, the wife is, in
that cafe, entitled to the value, and not to the Jlavt fubfiantially; be-
caufe fhe cannot poffefs the flave without the confent of her hufband,
which fhe is not, in this inftance, fuppofed to have obtained.
Cafe ofadif- If a leffor and leffee, before enjoyment of the objedt of the contradt,
aa§fL ind™ (that is, before the ufufrudl of it,) difagree concerning the amount of
Uffec, con. tj-,e n n t or the extent of the leafe, they muft in that cafe be both cerning tile 7 J 7 J
rent, or the fworn; and after fwearing, the contradt muft be diflolved, and each
leafe, before party muft return to the other whatever he may have received.— The
* h r e a f o n of this is that the fwearing of both parties, with regard tofale,
in cafe of a difagreement prior to the purchafer’s feizin of the goods,
is conformable to analogy, as has been already demonftrated.— Now a
leafe
leafe prior to the enjoyment of the ufufrudt, is fimilar to a fale prior
to feizin of the fubject; (and fuch is the cafe here confidered.)— If,
therefore, the parties difagree concerning the amount o f the rent, the
oath muft be firft adminiftered to the leffee, as he denies the obligation
of the rent.— If, on the other hand, they difagree concerning the extent
of the fubjedt of the leafe, the oath muft be firft adminiftered to
the. leffor.— I f either o f them refufe to take the oath, the claim of the
other is thereby eftablifhed.— I f one of them produce evidence, his
claim is eftablifhed; but if both bring evidence, that adduced by the
leffor muft be preferred, in cafe of the difagreement relating to the
quantity of the rent; and that of the leffee, in cafe of its relating to
the extent of the leafe.— If they difagree in both points, the evidence
of each is in that cafe to be credited, in the excefs which it may
prove.— For inftance; the leflor claims the leafe to have been made
for a period of one month, in exchange for ten dirms, and the leflee
claims a period of two months in exchange for fiv e dirms', in which
cafe the Kdzee muft adjudge it to be for a period of two months in exchange
for fiv e dirms.
If a leffor and leflee difagree, after the receipt of the objedt of the
leafe, the parties are not to be fworn, but the aflertion of the leffee
muft be credited, according to all our dodtors :— according to Haneefa>
and Aboo Yoofaf, evidently, becaufe (in their opinion) the deftruc-'
tion of the objedt of the contradt is a bar to the fwearing of the parties:—
and, in the fame manner, according to Mohammed, becaufe his
tenet, that the deftrudtion of the objedt is not a bar to the fwearing
of both parties, relates only to the objedt of a fa le, and is founded on
a principle that the objedt of a fale may be confidered as price, and the-
fwearing of both parties (that is, of the buyer and the feller) is with
relation to the price;— if, therefore, the rule of fwearing both parties
were admitted in the cafe in queftion, and the contradt were afterwards
to be annulled, it muft neceflarily follow that the objedt of the'
leafe could not be confidered as price; becaufe the objedt of the leafe is
V ol. III. O ufufruSl
Cafe o f the
fame nature,
after delivery
o f thefubjed.