ïMfl
■ r S
H E D A T A .
B O O K XLI.
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III
Nature o f a
compact o f
gardening.
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* $
O f M O S A K A T ? , o r C o m p a c t s o f G a r d e n i NG
I l M
j y fO S A K A T , in the language o f the law, fignifies, a compact
entered into, by two men, by which it is agreed that the one
fhall deliver over to the other his fruit-trees, on condition that the
other fhall take care of them, and that whatever is produced fhall
belong to them both, in the proportions of one half, one third, Or
the like, as may be ftipulated. Haneefa alleges, that a compa£t of
gardening,, flipulating an indefinite proportion of the produce, fuch as
an half, or a third, is invalid. T h e two di'fciples, on the contrary, •
* Applyin g, more particularly, to the plantation and culture o f date and other fruiti--
trees.
maintain
maintain that- it is valid, provided a term or period-be expreffed; and
this is approved. It is to be obferved, that compacts o f gardening
are frequently termed Mdmilat' as well as MbfaMt; and the fame
laws hold with refpect to them as thofe which have been laid down
with refpedb to compacts of cultivation.
(Shafei is o f opinion that* compacts o f gardening are valid ; and
that- compacts o f cultivation are only fo, where they happen in fub-
Ordination to the former; as; for example, where the fruit trees grow
in fertile and clean ground, which is watered for the nourifhment of the
trees, and the proprietor of them direfils the cultivator to fow a crop
on the ground'on condition that he fhall get a fhare, fuch as- one1 half of
the produce. • T h e reafon he afltgns is, that the original thing, in this
point, is a contrafil of Mozdribat; arid to that a- compact-o f gardening
bears a nearer refemblance than a Compafit of cultivation; for as, in
compacts of gardening, the partnerfhip fubfifts in the produce, and not in
the principal thing, (namely, th e trees,') fo in contrails o{ Mozdribatthe
partnerfhip fubfifts in the produce or profit, and not in the principal or
flock ;— whereas, in compafits of cultivation, i f it be agreed that a partnerfhip
fhall ex.ift in theproduce, and not in the principal, (namely, the
feed)'— in other words, if the parties agree that the one whofurnifhed the
feed fhall receive an equal quantity of feeds from the crop, and that the
remainder fhall belong to them both, the compafit is invalid.— As, therefore,
compacts of gardening bear a nearer refemblance to. Mozdribat
than compacts of cultivation, it follows that they are the primary object,
and that compacts of cultivation are lawful only as a dependant;
like a right of drawing water, which cannot be fold feparately, but
is included, fubordinately, in the fale of the land; or like a moveable
article, (fuch as:fhe furniture o f a houfe,) which cannot be feparately
appropriated in Wakf, but is included in the appropriation o f the houfe
or ground on which it ftands *.)
* I t would appear that this opinion o f Shafei is introduced-merely for the purpofe o f
elucidation,;as it is not oppofed to any different opinions, and his doflrines are feldom adduced
in pradlice by the followers o f Alee.
6 T h e
Do&Fine of
ßhafei upon
this fubjeét.
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