Necessary forms to be observed. Claim when preferrible. Rights of the first purcha ser. Rules where the property alteration property sold, a participator in its appendages, and a neighbour. 7. It is necessary that the person claiming this right, should declare his intention of becoming the purchaser, immediately on hearing of the sale, and that he should, with the least practicable delay, make affirmation, by witness, of such his intention, either in the presence of the seller, or of the purchaser, or on the premises. 8. The above preliminary conditions being fulfilled the claimant of pre-emption is at liberty at any subsequent period to prefer his claim to a Court of Justice * 9. The first purchaser has a right to retain the property until he has received the purchase money from the claimant by pre-emption, and so also the seller in a case where delivery may not have been made. 10. Where an intermediate purchaser has made any has undergone improvements to the property, the claimant by pre-empwhile in, the tion must either pay for their value, or cause them to be possession of removed; and where the property may have been detethe first purchaser. riorated by the act of the intermediate purchaser, he (the claimant) may insist on a proportional abatement of the price; but where the deterioration has taken place without the instrumentality of the intermediate purchaser, the claimant by pre-emption must either pay the whole price, or resign his claim altogether. * Much difference of opinion prevails as to this point. It seems equitable that there should be some limitation of time to bar a claim of this nature; otherwise a purchaser may be kept in a continual state of suspense. Ziffer and Moohummud are of opinion, (and such also is the doctrine according to one tradition of Aboo Yousuf), that if the claimant causelessly neglect to advance his claim for a period exceeding one month, such delay shall amount to a defeasance of his right; but according to Aboo Huneefa, and another tradition of Aboo Yoosuf, there is no limitation as to time. This doctrine is maintained in the Futawai Aulumgeeree, in the Moheetoe Surukhsee, and in the Hedaya, and it seems to be the most authentic, and generally prevalent opinion, But the compiler of the-Futawai Aufumgeeree admits that decisions are given both ways, the property claimant by and it appear 11. But a claimant by pre-emption having obtained Rules where possession of, and made improvements to property, is has been imnot entitled to compensation for such improvements, if it should afterwards appear that the property belonged pre-emption, to a third person. He will, in this case, recover the to belong to a price from the seller or from the intermediate purchaser, third person. (if possession had been given), and he is at liberty to remove his improvements. is a dispute as 12. Where there is a dispute between the claimant Where there by pre-emption and the purchaser, as to the price paid, to the price and neither party have evidence, the assertion, on oath, paid. of the purchaser must be credited; but where both parties have evidence, that of the claimant by pre-emption should be received in preference. by which a 13. There are many legal devices by which the right Legal devices of pre-emption may be defeated. For instance, where a claim of preman fears that his neighbour may advance such a claim, be evaded. emption may he can sell all his property, with the exception of that part immediately bordering on his neighbour's, and where he is apprehensive of the claim being advanced by a partner, he may, in the first instance, agree with the purchaser for some exorbitant nominal price, and afterwards commute that price for something of an inferior value; when if a claimant by pre-emption appear, he must pay the price first stipulated, without reference to the subsequent commutation. R Definition of gift. Essential conditions of. Cannot be made to take effect in futuro. Delivery and seizin requisite. The thing giv en must be actually existing at the time. An undefined gift of divisible property not valid. Rules in case of two or CHAPTER. V. OF GIFTS. 1. A gift is defined to be the conferring of property without a consideration. 2. Acceptance and seizin, on the part of the donee, are as necessary as relinquishment on the part of the donor. 3. A gift cannot be made to depend on a contingency, nor can it be referred to take effect at any future definite period. 4. It is requisite that a gift should be accompanied by delivery of possession, and that seizin should take effect immediately, or, if at a subsequent period, by desire of the donor. 5. A gift cannot be made of any thing to be produced in futuro; although the means of its production may be in the possession of the donee. The subject of the gift must be actually in existence at the time of the donation. 6. The gift of property which is undivided, and mixed with other property, admitting at the same time of division or separation, is null and void, unless it be defined previously to delivery; for delivery of the gift cannot in that case be made without including something which forms no part of the gift. 7. In the case of a gift made to two or more donees, more donees. the interest of each donee must be defined, either at the time of making the gift, or on delivery. express, and must be en 8. A gift cannot be implied. It must be express and A gift must be unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing tirely relinquished by the given, and the gift is null and void where he continues donor. to exercise any act of ownership over it. 9. The cases of a house given to a husband by a wife, Exceptions. and of property given by a father to his minor child, form exceptions to the above rule. 10. Formal delivery and seizin are not necessary in Of seizin by the case of a gift to a trustee, having the custody of the proxy. article given, nor in the case of a gift to a minor. The seizin of the guardian in the latter case is sufficient. deathbed. 11. A gift on a deathbed is viewed in the light of a Of gift on a legacy, and cannot take effect for more than a third of the property; consequently no person can make a gift of any part of his property on his deathbed to one of his heirs, it not being lawful for one heir to take a legacy without the consent of the rest. 12. A donor is at liberty to resume his gift, except in Resumption the following instances: admissible. tain cases. 13. A gift cannot be resumed where the donee is a Except in cerrelation, nor where any thing has been received in return, nor where it has received any accession, nor where it has come into the possession of a second donee, or into that of the heirs of the first. 14. Besides the ordinary species of gift, the law enu- Two peculiar merates two contracts under the head of gifts, which kinds of gift. however more nearly resemble exchange or sale. They are technically termed Hiba bil Iwuz, mutual gift, or Of Hiba bil Of Hiba ba shurt ool Iwuz. gift for a consideration, and Hiba ba shurt ool Iwuz, gift on stipulation, or on promise of a consideration. 15. Hiba bil Iwuz is said to resemble a sale in all its properties; the same conditions attach to it, and the mutual seizin of the donees is not, in all cases, necessary. 16. Hiba ba shurt ool Iwuz, on the other hand, is said to resemble a sale in the first stage only; that is, before the consideration for which the gift is made has been received, and the seizin of the donor and donee is therefore a requisite condition. |