with some descriptions of people, such as Christians and LECTURE The terms'null' and' invalid' are, however, used indis- XVII. DCXIII. A sale of forbidden things if for Principle. money is null; but if in the way of barter is invalid (o). (0.) A sale of wine or pork, if in return for money, is Illustration null; and if in return for any other article (as cloth for instance) it is invalid, whence it is that the seller of pork or wine for cloth becomes the proprietor of such cloth, although the actual pork or wine do not become the property of the purchaser. The distinction in these cases is, that wine and pork are held by Zimmis to be property, whereas Mussulmáns consider them as articles from which no use can be derived, because the law has commanded the contempt of them, and prohibited all regard to them among Mussulmáns.-Hidáyah, vol. ii, pages 429 & 430. DCXIV. The sale of any article which cannot Principle. be separated from its situation without injury, or of which the quality or existence cannot be ascertained, or the quantity of which can only be judged by conjecture, is invalid.-Vide Hidayah, vol. ii, pages 433 & 434. DCXV. In a sale that is null, the purchaser Principle. is not empowered to do any act with respect to the subject of the sale.—Ibid., page 428. DCXVI. In a case of invalid sale, the purchaser Principle. becomes proprietor of the article upon taking possession of it.-Ibid., page 429. DCXVII. In a sale of a land or of a house all Principle. fixtures are included, though they may not have been specified by the seller (p). (p.) Fixtures comprise all such things as cannot be removed without actually deteriorating the main thing. Consequently, LECTURE XVII. Principle. Reason. Principle. If a person sell the place of his abode (i.e., his house), the foundation and superstructure are both included in such sale, although they may not have been specified by the seller, because they are comprehended in the common acceptation of the term; and also because being joined to the ground in the nature of fixtures, they are considered as dependant parts of it.—Hidayah, vol. i, page 372. In a sale of land the trees upon it are included although they be not specified, because they are joined to it, in the same manner as foundation and superstructure in the preceding case.-Ibid. But, DCXVIII. In a sale of ground, the grain grow ing on it is not included unless particularly specified by the seller.* Because it is joined to the ground, not as a fixture but for the purpose of being cut away from it, in the same manner as goods of any kind which may have been placed upon it.-Hidayah, vol. ii, page 372. In like manner,— DCXIX. In the sale of a tree or trees the fruits then growing thereon belong to the seller unless specifically included in the sale.* So also if a person should sell a tree on which fruit is growing the fruit belongs to the seller, unless it had been specifically included in the sale; because the Prophet has said "If a person sell a date tree with fruit upon it the fruit belongs to the seller, unless the purchaser should have stipulated its delivery to him as a condition of sale." Besides, although the fruit be in fact a part of the tree, yet as it is intended to be plucked and gathered, and not to be suffered to hang on the tree, it is therefore the same as grain. It is to be observed, however, that in the sale of a tree with fruit, or of ground with grain upon it, the seller must be immediately desired to clear them away, and deliver the property to the purchaser; because in these By the sale of land nothing thereon which is of a transitory nature passes. Thus the fruit on a tree belongs to the seller, though the tree itself being a fixture appertains to the purchaser of the land.-Macn. M. L., Chap. iii, Princ. 23. XVII. cases the property of the purchaser and seller being impli- LECTURE DCXX. In a sale of land or house its rights Principle. and appendages or appurtenances are generally included (q). (q.) The rights of a sale are things essentially necessary to the use of the subject of the sale, such as in the purchase of a house the right of passing through the road that leads to it. Appendages imply things from which an advantage is derived, but in a subordinate degree, such as a cookroom or a drain.-Hidáyah, vol. ii, page 501. There is a peculiar kind of sale termed the bayi muká- Bayi mukásah,' which properly is barter: a sale in one shape and sah. purchase in another shape. In this country, however, the term bayi mukásah' is generally understood to mean 'a sale in liquidation, in which the consideration due by the seller to the purchaser is set off against the thing sold.' The consideration above alluded to is generally a portion of the whole of the daen-mahar or unpaid dower of the seller's wife. Here recourse is generally had to bayi-mukásah as well as to hibah bil-iwaz† (a gift for an exchange). DCXXI. The consideration of bayi mukásah as Principle. well as the subject of such sale is required to be specific and determinate so as to prevent any future dispute between the parties. 1. A Mussulmán disposes of all his property to his wife Precedent, by a deed of bayi mukásah. According to law the estates, whether one, two, or more, that were specified in the deed of bayi mukásah will pass, and be conveyed in virtue of the deed, notwithstanding that the person who executed that deed may have farmed them out for a term of six years * Vide Hidayah, vol, iii, page 31. This will be treated of in the Lecture on Gifts. XVII. LECTURE before the execution of the deed; and according to the above contract, the purchaser (that is the wife) will be proprietor of the estates. As in a contract of bayi mukásah the law does not require seizin and possession, the deed of bayi mukásah will be legally valid, although the purchaser may be out of possession for several years.-Macn. Prec., M. L., Chap. ii, Case 10. Precedent. Principle. Principle. Principle. 2. A husband sold to his wife, in exchange for the sum of fifteen thousand rupees of her claim of dower, all the lands and houses specified in the deeds, his household property, every thing that he acquired by inheritance, together with all the property that he might be possessed of up to the day of sale. Now the conditions of this contract are invalid, and it is null and void, because the property sold is not specified, and uncertainty legally vitiates a contract of sale. The heirs of the seller are therefore at liberty to set aside the contract.-Macn. Prec., M. L., Chap. ii, Case 9. DCXXII. The law does not prescribe any particular form for a sale. It may either be made verbally or executed in writing. The proposal or tender and acceptance of the parties being the only essential to effect a sale.* DCXXIII. In a commutation of goods for goods, or money for money, immediate delivery is requisite to the validity of the sale; but in a commutation of money for goods, or of goods for money, a future period of delivery may be stipulated for.† DCXXIV. A lunatic in his lucid intervals, the natural or legal guardian of a minor, and a minor with the consent of such guardian, are competent to enter into a contract of sale as well as any owner, adult and sane. *See ante, page 493. In a commutation of goods for goods, or of money for money, it is illegal to stipulate for a future period of delivery, but in a commutation of money for goods, or of goods for money, such stipulation is authorized.— Macn. M. L., Chap. iii, Princ. 12, Shufá or right of preemption is a power of possessing Shufa property which has been sold to another by paying a price defined. equal to that settled or paid by the purchaser.* DCXXV. The right of preemption applies not Principle. to moveable but to immoveable property (akár†), divisible or indivisible (a), and can be exercised when the latter is transferred in any shape for a consideration (b), even as a grant or gift for a consideration expressed, or in a compromise (c). (a.) A privilege of shufá takes place with respect to immoveable property, notwithstanding it be incapable of division, such as a bath, a mill, of a private road. According to our tenets the grand principle of shufa is the conjunction of property, and its object to prevent the vexation arising from a disagreeable neighbour; and this reason is of equal force whether the thing be divisible or otherwise. Hidayah, vol. iii, page 591. The original meaning of Shufá is conjunction.-Durr-ul-Mukhtár, page 697. In law it is a right to take possession of a purchased parcel of land for a similar (in kind or quality) of the price that has been set on it to the purchaser.-B. Dig., page 471. † See the case cited at the end of this Lecture. The right of preemption takes effect with regard to property, whether divisible or indivisible; but it does not apply to moveable property, and it cannot take effect until after the sale is complete, as far as the interest of the seller is concerned.-Macn. M. L., Chap. iv, Princ. 3. The right of preemption takes effect with regard to property sold, or parted with by some means equivalent to sale, but not with regard to property the possession of which has been transferred by gift, or by will, or by inheritance; unless the gift was made for a consideration, and the consideration was expressly stipulated, but preemption cannot be claimed where the donor has received a consideration for his gift, such consideration not having been expressly stipulated.-Macn. M. L., Chap. iv, Princ. 2. |