THE DEVELOPMENT OF LEGAL REASONING IN GENERAL 271

for the price is that the sale was not completed; and what prevents us from exonerating him from responsibility, is that he took him on the basis of a sale in which he [the seller] received from the buyer an equivalent, and we must regard [the object of] the sale as covered by the responsibility [of a party ]; there is no way of considering him a trustee, because one can become a trustee only of property which one does not own and from which one does not draw advantage sooner or later, and which one holds in the interest of its owner and not one's own interest. It is irrelevant whether the option is in favour of the seller or the buyer, because [in either case] the sale was not completed when the slave died."' This shows Ibn Abī Lailā’s seemingly just and reasonable solution, easily refuted by Abū Ḥanīfa’s technical legal thought and Shāfiʿī’s still more articulate and consistent reasoning.

§ 25: Ibn Abī Lailā, followed by Abū Yūsuf, mechanically applies the elementary rules on presumption to two contradictory claims without evidence (cf. Sarakhsī, xiii. 59); Abū Ḥanīfa, followed by Shāfiʿī in the essentials although Shāfiʿī’s decision is slightly different, analyses the nature of the statements of both parties.

§ 27: Ibn Abī Lailā’s decision is strictly formal; the opinion of Abū Ḥanīfa, followed by Abū Yūsuf, is more appropriate for any but the most primitive conditions of commerce; Shāfiʿī endorses it and makes it systematically more consistent.

§ 38: Abū Ḥanīfa becomes inconsistent and is reduced to a practically expedient solution (at the end), whereas Shāfiʿī remains consistent and logical.

§ 44: Ibn Abī Lailā is crudely systematic in applying the rules of pre-emption even to property given as donatio propter nuptias, but his solution of the problem is clumsy and inconsistent. Abū Ḥanīfa, followed by Abū Yūsuf, gives systematic reasoning against it. Shāfiʿī accepts pre-emption in the case in question, and makes this doctrine juridically acceptable for the first time. But the argument which Sarakhsī, v. 78, puts into the mouth of Shaibānī in favour of the doctrine of Abū Ḥanīfa and Abū Yūsuf is easily superior even to Shāfiʿī’s reasoning; it develops Abū Ḥanīfa’s argument in a masterly way and introduces a judicious distinction; this seems to be an argument that Shaibānī really did use.

§ 48: On the exercise of a minor’s right of pre-emption, Abū Ḥanīfa, followed by Abū Yūsuf, holds a reasonable and defensible opinion. Shaibānī, however, with complete disregard for the stability of real property, applies purely formal reasoning (see Sarakhsī, xiv. 155; xxx. 145); in this he is followed by Shāfiʿī. Both seem to lose sight of the purpose of pre-emption and to regard it as