even to a
partner in the
article.
If the pledge
be rendered
indefinite by
any fuperve-
nient adfc or
circumftance,
the contract
of pawn is
annulled.
I t is not lawful to pledge any undefined part o f joint property,
even to a copartner; for, befides that the detention of fuch pledges
cannot be made, the receiver would in fuch cafe retain poffeffion of it
one day in virtue of property, and another in virtue of the contradt
of pawn; and thus he would hold, it one day in pledge, and
another not.
A supervenient indefinitenels is repugnant to the continuance
of a contract of pawn, according to the.Mabfoot\— in other words, if
a perfon pledge a piece of ground, for inflance, and afterwards defire,
a trufiee * to fell the half thereof, and the truftee accordingly do fo
the contradt o f pawn no longer exifls.— It is recorded from Aboo Taofaf,
on the contrary, that a fupervenient indefinitenefs does not diffolve a
contradt of pawn,— in the fame manner as it has no effedt in the cafe
o f donations;— in other words, i f a perfon bellow any thing in gift
upon another, and afterwards retradt the half, the gift Hill remains
valid with refpedt to the other half.— The reafon for what is quoted
from the Mabfoot, as above, is that, in the cafe there Hated, the fub-
jedt of the contradt does not exift as before; and a fubfequent circumftance,
as far as it has a tendency to annihilate the fubjedt of the contradt,
operates equally as if it had exifled from the beginning;— in the
fame manner as where a perfon (whether knowingly or unknowingly)
marries within the prohibited degree.— It is otherwife with gifts; for
the effedt of gift is inveftiture with right of property; and an undefined
part of a thing is capable of being property. T h e reafon, moreover,
why feizin, in the cafe of a gift, is requifite before the right of
property can be acquired, is to prevent the poffibility of compulfion;
for if the grantee fhould become proprietor of the gift immediately
upon its being offered, and without taking poffeffion, the giver (who
ought to adt of his own .accord) would then be coriflrained to do
* Arab, /lad, (See note, p. 195.)
that
that to which he has not yet affented; namely, to deliver up
the gift.
I t is not lawful to pledge fruit without the trees which bear it, An article
crops without the land on which they are produced, or trees without conjoined to
the ground on which they Hand; for as the pledge, in all thefe cafes, ar,other can_,
0 , . . . • 1 1 • 1 • notbepawned
has. a. natural connexion with an article which is unpledged, it is fepamely-.
therefore, in effedt, indefinite, until fuch time as it be feparated from
that article.— In the fame manner alfo, it is unlawful either to pawn
a piece of ground without the trees which are produced upon it, a
field without its produce,, or a tree without its fruit;. becaufe, in thefe
cafes, a mortgage is induced o f an article naturally conjoined with another
which is not pledged. In fhort, it is a rule that when a pledge
is joined to fomething not in pawn, the contradt is not valid, fince
in fuch cafe poffeffion cannot be taken of it. Haneefa has judged it
lawful to pawn a piece of ground without its trees; for as the trees
have no connexion with the ground, except in that part only from
which they vegetate, they may therefore be excepted, together with;
the particular fpot on which they Hand. It is otherwife when a
perfon pawns the court-yard of a. houfe without the building itfe lf;
for then the part of the ground on which the building Hands remains
unpledged,, whereas it is requifite that the whole of the ground be
pledged..
I t is lawful to pawn trees, together with the particular fpots of I’m,, hów-
ground on which they grow; for here fubfifts a vicinity only with the plwje™«;*
pawner’s property, which is not repugnant to a contradt of pawn.— ,he immedi-
If, in-this cafe, there be fruit upon the trees, it is included in the I s J
contradt; for as the fruit is. an appendage, of thé tree, bècaufe of the owhlcïuding
connexion between them, it is therefore included in the contradt, in jherdtefthe
order that the fame may be valid.— It is otherwife in the cafe o iJfd k y
for as trees may be fold without their fruit, unlefs that be exprefsly
Hipulated, it is not included in the fale. It is alfo otherwife with
7 refpedt