which, at the
expiration, o f
that term,
muftbepafled
according to
the event.
There is no
fine for a cut
on the head
which afterwards
heals
without leaving
a fcarj
latter affirming that they fell out in confequence of a fubfequent blow
received from another,— the affertion of the plaintiff, upon oath, muft
be credited, in order that the advantage of fixing a term of delay
may be maintained. It is otherwife where the parties differ after the
expiration of the year; for in that cafe the oath of the ftriker muft be
credited.
I f , in the above cafe, the year of delay appointed by the Kdzee
expire, and the teeth do not fall out, nothing whatever is due from
the ftriker. If, on the other hand, the teeth turn black, or decay,
a fine for them is due,—from the Akilas in a cafe of mifadventure, or
from the ftriker in a w ilful cafe:— but retaliation is not due, as equality
cannot poflibly be obferved in the inflidfion of it, fince it is not in
the power of man to hit the teeth of the ftriker fo as to produce the
fame precife effect upon them;— and for the fame reafon, i f a perfon
break off part of another’s tooth, and the reft of the tooth turn black,
retaliation is not to be inflidted.
If a perfon give another a cut upon the head, and the cut heal,
and the hair grow upon the place, fo that no mark of it remains, the
fine is remitted, according to Haneefa, as the defedt which would have
occafioned the fine no longer exifts. Aboo Toofaf holds that the
ftriker ftill owes a fine for the pain of the wound; becaufe, notwith-
ftanding the mark of the injury be effaced, yet the pain has been fuf-
tained, and that requires a recompence. Mohammed, on the other
hahd, maintains that the ftriker is liable merely for thé expence of the
furgeon; for as the wounded perfon has been fubjedted, by the adt of
the ftriker, only to the hire of the furgeon, and the price of his remedies,
the cafe is therefore the fame as if the offender had taken and
deftroyed fo much of the wounded perfoii’s property. Haneefa fays
that the award for the pain, as mentioned above, can only be determined
by confidering for how much a perfon might undertake to bear
fuch
fuch a degree of pain, fuppofing it poflible that a man were hired
folelyfor the purpofe o f bearing pain. T h e award, therefore, for the
pain is oppofed to the trouble fuftained in bearing it. Now trouble is
not valuable but under a contradt o f hire, either valid or invalid; and
as no fuch contract exifts on the part of the offender, it follows that
no value can be fet upon the trouble of the wounded perfon in bearing
the pain occafioned by the offence; and confequently, that the offender
owes nothing on that account;— in the fame manner as where
a perfon ftrikes^;another a blow with his fift, and puts him in pain;
in which cafe nothing whatever is due; and fo here likewife. With
refpedt, moreover, to the fee of the furgeon, the wounded perfon
has paid it at his own difcretion, and therefore the offender is not liable
for it.
If a perfon give another one hundred ftripes (for inftance) and nor for flripis
thereby cut him, and the perfon fo cut recover, in this cafe a fine is without'leL-
due: for the ftripes, provided they leave a mark; but i f they do not ing mark»,
leave a mark, the fine is remitted. Aboo Toofaf maintains that a fine
is due,for the pain inflidted. Mohammed, on the other hand, alleges
that the offender muft pay the expence o f a furgeon. The fine for
ftripes is to be determined by obferving the proportion which the
wounds they occafion bear to thofe for which a fine is appointed.—
If, therefore, they be in the degree of one half, an half of the
appointed fine for a wound is due i f , of one third, a third of the fine
is-due; and fo forth.
If a perfon ftrike off the hand o f another by mifadventure, and a perfon
then, before he has recovered, flay him by mifadventure, he owes a an-
. . . : J other by mifcompletc
fane, and the fine for the hand is remitted; becaufe both of- adventure,
fences are of one fpecies or defcription, namely, by mifadventure-,
and the award for both is the fame, namely, a fine; and as the con- onl>'
C , . ’ - J one fine.
«aeration for the perfon is alfo a confideration for all its parts, it
follows that the fine for the member is included in the fine for the.
whole