Rules in cafe
o f the compact
expiring
whilft the
fruit is yet
green.
T h e compact
may be dif-
folved by any
plea or pretext.
in their option. If , however, they. fhould decline it, the heirs o f the
proprietor are in that cafe at liberty to purfue either o f the three ways
above mentioned.
If the term of the compact fhould expire whilft: the fruit is ftill
green and unripe, the gardener may continue in his employment until
it become ripe; and in this cafe he is not liable, for any rent on account
of the trees, the Letting of trees being unlawful. It isotherwife with
refpect to compacts of cultivation ; for if their term expire whilft the
crop is yet green, the cultivator may continue to work until it be fit
for reaping,— but he is liable for the rent of the ground, the letting of
ground being lawful.
If the term of a compact o f gardening expire at a time when, the
fruit is ftill green, the gardener alone is obliged to perform the reft of
the work; whereas, on the contrary, if the term of a.compaft of cultivation
expire at a time when the crop is ftill green,: both parties are
obliged to work until the crop be brought to maturity.— T h e reafonof
this diftindlion is that, in compacts o f cultivation,- the cultivator being
liable for the rent of the ground after the expiration of the term of the
compaft, it would be unjuft that he alone fhould afterwards perform
the labour; whereas, in cafes of compacts of gardening, the gardener,
as not being liable for any rent, is obliged to perform the work alone,
after the expiration of the term, in the fame manner as before.
C ompacts of gardening may be difiblved by particular pleas,—
fueh as where the gardener is a thief, and there is reafon to be appre-
henfive of his ftealing the branches or leaves of the date trees, or the
fruit, before it is ripe,— or, where he [the gardener] is difabled from
working by ficknefs.
— A queftion has arifen whether, if the gardener be defirous of relin-
quiftiing his work, it is lawful for him fo to do ?— concerning which
two opinions are recorded, one, that it is lawful; and an other ,
that
that it is not fo.— T h is apparent difference may, however, be reconciled,
by fuppofing that the former opinion alludes to cafes wherein it
is ftipulated that the gardener fhall work with his own hands, which
condition he is, by reafon of ficknefs, unable to fulfil.
If a man deliver to another a piece of open ground, for a certain A leafe of
number of years, that he may'plant trees thereon, and ftipulate that panting,’in'
the trees and the ground fhall be in partnerfhip between them, each □f'a'parc'of'1
holding an half,— it is invalid, for two reafons; F ir s t , becaufe they the produce,
have ftipulated a partnerfhip in the ground, being a thing which already
exifts without the previous aid of the gardener’s labour; and,
Secondly, becaufe fuch a compact is liable to the fame objection as
Kafeez Tehcin ; for in this inftance the mafter of the. orchard in effedt
hires the gardener, and fettles, as his wages, a part o f the thing produced
by his labour, namely, one half of the trees.— In this cafe, therefore,
the whole of the fruit and trees go to the mafter of the ground;
and the gardener is entitled to the price of his trees, and alfo to an-
adequate confideration as the hire of his labour; for as it is impoflible
to reftore to him the trees, becaufe of their adhefion to the ground, he
neceflarily gets their value, and alfo an adequate hire ;■— nor is his hire
included in what he receives for the trees; that is to fay, they are both
due, diftindtly; the ufe of labour being in this cafe o f itfelf capable o f
eftimation.
H E B A T A .