I f the cultivator
d ie, his
heirs may
continue the
cultivation,
but are not
entitled to
wages.
Theincident-
al charges
are fuftained
by the parties
in proportion
to their re*
fpe&ive
ihares.
fhare of i t ; or he may take care of the crop until it be fit for reaping,
in which cafe he may dedudt from the fhare of the cultivator the
amount of the expence incurred on that, account;— becaufe i f the
cultivator fhould chufe to defift from labouring, on the expiration of
the term of the compad, he, cannot be compelled, fince it is? prolonged
with a view to his benefit, which he himfelf has forfaken
and no injury is occafioned to the proprietor of the ground, as he has
three modes in his option, by either o f which injury is prevented.
If the cultivator fhould die after the crop has begun to grow, and
his heirs fhould offer to continue the cultivation until it be fit for
reaping, and the proprietor of the land fhould not confent, in this'
cafe they are neverthelefs authorifed to continue the cultivation, as-
the proprietor will fuftain no injury thereby; but they are not entitled
to any hire or wages, as the compact is continued with a view to
their benefit. If, on the contrary, the; heirs fhould defire to pull up
the crop, and not to continue to cultivate, they cannot be' compelled
to-continue to cultivate, for the reafon above affigned; but the
proprietor of the ground has in his Option the three modes already
recited.
T he expence of. cutting down the Crop, of carrying it to the
flack, o f thrafhing it, and of cleaning the grain from the ftraw, falls upon
both the parties in proportion to their feveral fhares. If, therefore,
they were to flipulate in the compact that the expences fhall fall on1
only one of them, the compact wpuld be invalid. In fhort, all the
above mentioned charges muft be fuftained by both parties in proportion
to their feveral fhares, and not by any one of them in particular ;
becaufe, when the crop is ready, the objedt of the'compact being ac-
complifhed, the compadt itfelf is at an end; and as the crop remains the
joint property of the parties, and no compadt or ftipulation is left in
force betwixt them, it follows that any expences which may be after- ’
wards required on account of their joint property ought to fall upon
both. Befides, if they flipulate that thofe expences fhall fall on one
of
of them only, fuch a ftipulation is inconfiftent with the true fpirit of
the compadt, as it tends to the advantage of one party over the other;
and all ftipulations having fuch a tendency invalidate the compadt itfelf,
in the fame manner as a ftipulation by which the cultivator k
bound to carry the grain, or to grind it into flour. Aboo Tooflaf is,
however,. o f opinion that where the parties agree that the operations
above-mentioned ifhall fall upon the cultivator, it is lawful, becaufe
of cuftom. T h e fages of Balkh concur in this opinion; and the
$hims-al-Ayma obferves,. that this do&rine is authentic, and that the
pradtice prevails in his country. In fine, every operation of agricul-
ture, previous to the maturity of the crop, (fuch as watering and ofcuhivation,
watching it,) falls upon, the cultivator; and every fubfequent operation
requifite until the partition, (fuch as reaping, &c.) falls equally
upon both : and, laftly, every operation that is neceflary after the
partition, (fuch as carrying, watching, &c.) falls upon each of them
feverally, for their refpedtive fhares.
T h e foregoing rule holds good, alfo, in cafes of M o f a k a t , or com- and o f gar-
padts of gardening; that is to fay, all operations previous to the s '
maturity of the fruit, fuch as watering, grafting, and watching the
trees, fall upon the gardener; ' and all fubfequent operations, fuch as
gathering the fruit, and watching it, previous to a partition, fall
upon both. If, therefore, it be fettled betwixt the parties that the
trouble o f gathering the fruits fhall fall upon the gardener, it is disapproved,
according to all our dodlors, as being uncuftomary;— and
all operations, after partition, muft be performed by each with refpedt
to his own fhare.
If , in compadls of cultivation, the parties be defirous o f cutting
down the crop whilft it is young,— or, in compadls of gardening, of
pulling the dates whilft they are four or moift, the labour of thefe
operations falls upon both, for the intention and defire o f performing
them terminates the com pad!, in the fame manner as if the crop or
dates had arrived at maturity.
H E D A T A .