but thofe in-
curred by
Jickne/s or by
offences mult
be defrayed
by both *
T a x e s are defrayed
by the
pawner.
T ith e s (upon
pawned land)
have preference
to the
right of the
pawnee.
Ifeitherparty
voluntarily
defray what
is incumbent
©n the other,
he has no
claim upon
him on that
account.
T he expence of healing the wounds, of curing the diforders, and
of pecuniary expiations for the crimes, of pledges, are defrayed by the
pawnee and pawner proportionably to the amount of the debt, and the
exeefs. of the value of the pledge over the debt.:
T he taxes on pledges are levied from the pawner, as they are
neeeffary towards the fubfiftence of his property.
T he tithe from the revenue of tithe-land's held in pawn, precedes
the right of the pawnee; becaufe it is conneded with both the
fubjlance and the property of the pledge,' whereas the right of the
pawnee is conneded with the property of it only, not with the fubjlance.—
Still, however, the contrad o f pawn is not invalidated in re--
gard to the fum remaining after the payment o f the tithe, as- the obligation
o f tithe in no refped impugns the pawner’ s right of property.
It is otherwife where an undefined part of a pledge proves the rioht of
another; for in that cafe the contrad becomes null with refped to the
remainder, becaufe this fhews that the pledge was not wholly the
pawner’ s property.
If either party defray any o f the expences incumbent on the other,
it is deemed a voluntary and gratuitous ad. If, on the contrary, one
of them fhould, by order of the Kdzee, fulfil a duty incumbent on the
other, he has in that cafe a claim'on the other for fo doing, in the fame
manner as if he had done it at his infligation; for the Kdzee’ s jurifdic-
tion is general. It is recorded, from Haneefa, that no claim can be
made on the other, not with (landing the expence be defrayed by
order of the Kdzee, unlefs he were then abfent. Aboo Toofaf \ on the
contrary, has.faid that a claim is valid in both cafes; that is, whether
the other were prefent or abfent.
CH A P .
C H A P . II.
Of Things capable of being pawned; and of Things
for which Pledges may be taken.
I t is unlawful to pawn an indefinite part of any thing. Shqfe'i maintains
that it is lawful.— On behalf of our dodors two reafons are urged.
F ir st , this difagreement arifes from the difference of opinions regarding
the objed of pledges ; for according to us, pledges are taken to be
detained with a view to obtain payment of a debt, which cannot be
effeded in cafe the pledge be an undefined part of property; becaufe a
feizin of things of that nature cannot be made, a real feizin being
only pradicable with refped to things which are defined and dif-
tinguifhed ;— whereas, according to Shafei, the objed of pledges is
that the pawnee may fell them to effed a difcharge of his debt; and
with this objed pledges of the nature above mentioned are not in any
fhape inconfiftent.— Secondly, it is an effential part of the contrad
of pawn, that the pledge be conftantly detained in the hands of the
pawnee until the redemption of it by the pawner; a condition which
cannot be fulfilled with refped to pledges of the above nature; for in
fuch cafes it would be neceflary that the pawner and the pawnee have
poffeffion of the article alternately, whence it would be the fame as if
the pawner were to fay to the pawnee, “ I pawn it to you every
“ other day.” — As, therefore, a conftant detention is in fuch cafe
impoffible, it follows that the pledge of an undefined part of any thin°-
whether capable of divifion or incapable, is illegal.
An in definite
p a r t of an
article cannot
be pawned.