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main.— If, on the contrary, the perfon fir ft emancipate the flave, and
then make the Mohabat, the flave, and the perfon in whofe favour
the Mohabat is made, are upon a perfect equality, and each takes
from the third of the eftate in proportion to his righ t;— as, for in-
ftance, the flave is emancipated from the third of the eftate in the
proportion of his value, arid performs emancipatory labour for the remainder,—
and the perfon in whofe favour the Mohabat is made takes
in the proportion of his Mohabat, and makes good the remainder.—
T h e two difciples maintain that the emancipation has the preference
in both cafes, for it is the ftronger, inafmuch as it does not admit of
retractation. Haneefa, on the contrary, maintains that Mohabat is
the ftronger, as being interwoven in a compaft of exchange: contrary
to emancipation, for in that there is no exchange. If, therefore, the
Mohabctt be firft made, it fets afide the emancipation, becaufe of the
comparative weaknefs thereof;— whereas, if the emancipation be
firft made, it obftructs the Mohabat., becaufe of its priority, but ftill
does not fet it afide, as emancipation is incapable of fetting afide a
Mohabat;— whence, in this inftance, both are placed upon a footing.
According, therefore, to this difference of opinion, if a perfon be
pofleffed of two flaves, one valued at two hundred dirms, and the
other at one hundred, and firfLfell the former by a Mohabat fale, for
one hundred dirms, and afterwards emancipate the latter, and die,,
leaving no other property, in that cafe, according to Haneefa, the
Mohabat is executed in full, and the other flave is required to perform
emancipatory labour to the full amount of his value;— whereas if, on
the contrary, the emancipation precede the Mohabtit, then a third of
the value of both flaves, amounting to one hundred dirms, is divided
equally between both parties, (that is, between the emancipated flave
and the perfon in whofe favour the Mohabat was made ;) and accordingly,
a moiety of the flave is emancipated without any confideration, .
and he is to perform emancipatory labour for fifty dirms more, being
the remaining half of his value;— and fifty dirms are deducted, in
the
the manner of a Mohabat, from the flave fold by Mohabat, and his
price is then one hundred and fifty dirms, for which the purchafer is
accountable but the two difciples mairitain that the flave is completely
free in both inftances. In the fame manner, i f a perfon, upon
his deathbed, firft fell a flave by Mohabat, then emancipate a fecond,
and afterwards fell a third by Mohabctt, and have no other property
befides thefe three flaves, in that cafe, according to Haneefa, the half
Of the third of the property muft be allowed to the perfon in whofe
favour the firft Mohabctt was made, and the remaining half of the third
is equally divided between the emancipated flave and the one in whofe
favour the laft Mohabat was made;— whereas, had he firft emancipated
one, then fold the fecond by Mohabat, and afterwards emancipated
the third, in that cafe one third of the eftate would be divided
into" two equal IhareS, of which one would be given to the perfon in
whofe favour the Mohabctt fale was made, and the other equally divided
between the two emancipated flaves :— but the two difciples maintain
that in both cafes the emancipation is to be preferred.
I t is to be obferved, as a Handing rule*, that where a perfon be- MMat or
t * i / » i * r cn r 1 e m a n c i p a - (jueaths feveral legacies, and the third or his property iunices roi the t i0 n p r e c e d e ,
payment of the whole, they are all carried into execution without a “
preference being given to either. But if, befides thefe legacies, he a f t u a l b e -
* . ° ° . . n v r * i • • quells.
fhould in his laft illnefs emancipate a flave, or diredt the emancipation
to take place after his death, or fell fomething by Mohabat,— in that
cafe both kinds of emancipation, as well as the Mohabdt, are prefer-,
ed to the legacies, and muft therefore be firft executed from the third
of the eftate, and the remainder (if there be any) is then divided equally
among the legatees.
* Arab, rfjl', literally, a root; meaning (in this place) a principle or ground of decifion
in all parallel cafes.
If