that a pawned Have cannot be emancipated, becaufe' of the right of
the pawnee.
R e p l y .— T h e manumiflion of the flave by the heirs of the tefta-
tor is not (in the • opinion of Haneefa) void, but is merely fufpended
until fuch time as he [the flavej fhall have performed emancipatory
labour.
— The fa le, moreover, or g ift of a pawn is null, for this reafon, that
the pawner is unable to furrender i t ‘ to the purchafer or donee*— an
objection which does not obtain in the cafe of manumiflion, fkice in
that inftance a delivery is not required. The'manumillion is therefore
valid, and takes immediate effect,— whence the contract of pawn
who, if he be is null, as the fubjedt of it no longer remains. Confequently, if the
fuMitute'the pawner be rich, and the debt to the pawnee be then due, he [the
forthe”flav™ Pawnee] may require payment of it immediately ;— or, if it be not due
until after the expiration of a term, he may take from the pawner the
value of the flave, and return it as a fubflitute until his debt become
payable, when he may take it in fatisfaftion of his right, reftoring
any furplus which: may remain from it to the pawner. This is fup-
but i f he be poling the pawner to Ire rich; for, i f he be poor, theflave, in queftion
Save mol m.uft perform emancipatory labour to an amount adequate to his . value;
perform and with this (which, i f it be o f a different fpecies from the debt,
labourTo tbJ muft firft be converted into the fame) the debt of the pawnee is to he
vduefor the discharged; for a difcharge.from the pawner being here impoffible, it
difcharge of is confqquently made from-him who enjoys the advantage of the, ma-
claim^Wliee 6 numiflion, namely, the flave. The flave however, when his emancipator
afterwards becomes rich, is entitled to take firom him the fum
he earned; becaufe. he has, in fact, paid his debt, not voluntarily or
gratuitoufly, but in conformity with the ordinance of the l a w in this
particular *.
,* T h e remainder o f this difcufiion is. omitted b y the tranflator, as being merely »repetition
o f what has been already fet forth at large under the head o f Manumijjim.
It
If a perfon make a declaration of having pawned his flave, by faying
to him, “ I have depofited you in pledge with fuch a perfon,”
and the flave deny it, and the mafter afterwards emancipate him, at
a time when he is poor, it is incumbent upon the flave to perform
emancipatory labour, according to our doctors. Ziffer is of a contrary
I opinion; for he holds this cafe to be analogous to where a mafter firft
liberates his flave, and then declares his having pawned him;— in
which cafe, i f the mafter be poor, and the flave deny it, (as above,)
emancipatory labour is not incumbent on the flave; and fo here like-
I wife. Our doctors, on the other hand, argue that, in the cafe in
l queftion, the mafter declares the pawn at a time when he is un-
| doubtedly competent to it, as he ftill poffefles a property in the flave,
I not having yet emancipated him; and confequently his declaration is
I valid.— It is otherwife where the declaration of pawn is made fubfe-
I quently to the emancipation, as the mafter’s power of pawning is then
I terminated;— whence there is no analogy between the cafes.
If a pawner create the flave whom he has pawned a Modabbir, it
I is;-yalid, according to all authorities:—according to our doctors, be-
I caufe, as the complete emancipation would be lawful, it follows that
this qualified emancipation is lawful, a fo rtio ri; and according to Sha- I -fch becaufe the granting I ’adbeer to a flave does not (as he holds)
I prevent the fale of him. In a fimilar manner, it is in the power o f a
I pawner to conftitute his pawned female Have an Ain-Walid; for as a
I father has this privilege with refpedt to the female flave of his child,
I becaufe of the right which he has in his property, notwithftanding
I fuch right be inferior to that of the child himfelf, it follows that the
I exertion of the fame privilege by a pawner, in virtue of his right iri
I the pledge, is valid a fortiori, the right of the pawner being fuperior
I to that of any other perfon, as he is the proprietor.— When, there-
I fore, a pawned flave is conftituted either Modabbir or Am-Walid, fuch
I Have is excluded from the contraft of pawn, as the intention is de-
I eated, fince a debt cannot be difcharged by means of a Modabbir
V ol. IV . I i
although he
fhould have
denied his
being in
pawn previous
to fuch
manumiflion;
A pawner
may create
his pawned
flave a M o d
ab b ir or Am '
W a l id i
and i f he be
r ic h , he muft
fubftitute the
value in
pawn; but i f
he be poor,