Analogy requires
the
fpecification
o f a term;
but it is not
effential,
except where
the trees are
newly p lanted,
T he fpecification of a term is requifite in compacts of gardening,
by analogy, in the fame manner as in compacts of cultivation, the
one being, in reality, a contrail of hire, the fame as the other. A c cording
to a more favourable conftrudtion, however, compacts of
gardening are lawful without any fpecification of a term. Thus, if
two men enter into a compact, by which it is agreed that the one
lhall deliver his date trees to the other, who {hall water and nourifh
them until they produce fruit, and it become ripe, and no particular
period (fuch as n year, Or the like) be fpecified, the compact is never-
thelefs valid, and continues in force with refpeil to the firfl: fruit that
may be produced; for the feafon for producing and ripening fruit is
known, and feldom differs much. In the fame manner alfo, i f two
men enter into a compaft, and agree that the one fliall deliver to the
other the roots o f fhrubs, which are in the ground * , and that the
other fliall water and nourifh them until they yield ripe feed, to be
fhared between them, without mentioning any term, the compact
is neverthelefs valid, and takes place, with refpeft to the firfl: feed
that fliall be produced and arrive at maturity; becaufe as feed is of
the fame nature as fruit, the period of its maturity being equally
known, it is, therefore, needlefs to fettle any limited time. It is .
otherwife with regard to compafts o f cultivation, which are invalid
unlefs a period be fettled ; becaufe the time of commencing the cultivation
differs greatly, fome crops being fown during the autumn,
fome during the winter, and others during the fpring; and as there,
is thus a difference in the time of beginning the cultivation, the period
o f its ending cannot be known, for the ending depends on the beginning.
It is alfo otherwife in cafes o f gardening, where one man
delivers to another his young trees newly planted; for in that cafe
the compaft is not valid unlefs a period be fixed, it being very uncertain
when the trees may arrive at that ftage in which they are capable
o f bearing fruit, as that is a circumftance which depends on the
* M ean ing fuch vegetables as renovate from the roof every feafon.
ftrength
ftrength and fertility of the foil. It is-alfo otherwife where a mail
delivers to Another his date garden, or his herb roots, defiring him to glared ^
water and nourifh them always until they die, or until their roots be as the trees,
pulled, and their vegetation be thereby terminated,— or where he fets &c-aal{ laIh
no bounds whatever to the duration of the compact with refpeft to
the herbs; for in this cafe the compaft is invalid, it^'period being
uncertain, becaufe herbs grow as long as their roots are fuffered to
remain in the ground.
I f the parties, in a compact of gardening, fettle a period during Th^fpecifi^
which it -is certain that the trees cannot bear fruit, it is invalid ; be- y,ort a term
caufe the objeft of fuch a compact, which is a partnerfhip in the pro-
duce, is thus defeated.
If the parties fettle a period during which the trees may bear fruit, £ut not where
although they be frequently later in bearing, it is valid, becaufe the that the end
. objeft of the compaft is not to a certainty defeated in this inftance ^ anfwered
therefore, the trees bear fruit within the prefcribed term, it belongs
to them both in the proportions which they may have previoully
fettled ; or, if they fhould not yield fruit until after it is expired, the
gardener is entitled to a fuitable hire for his labour, becaufe the com-
pa£t has in this cafe been rendered abortive by the error of the parties,
in fixing a period too fhort for the trees to yield fruit, and which invalidates'the
compaft in the fame manner as i f it had been known to
be too fhort at the beginning. It is otherwife, however, if the trees
afterwards yield no fruit; for in that cafe it is fuppofed owing to a
blight, and not to the ftiortnefs of the period, that the compact proves
abortive : the compaft therefore holds good, and neither of the parties
is entitled to receive any thing from the other.
C om pa c t s ' of gardening are lawful with refpeft to date trees, ^diTwith
vines, &c. and alfo with refpedt to herbs and roots. According to refpeft to
the firfl opinion of Shafei, they are lawful with refpeft to date-trees vr;neS; herbs,
V ol. IV . I and and roots