the exigence of the fubftance, fo alfo he is anfwerable for the value,
-in cafe of its deftrudlion, in the-fame manner as an ufurper, the article
{landing in the fame predicament with merchandize detained
with a view to purchafe.— With refpect to the permiffon of feizin,
eftabliflied on the borrower’ s behalf, that was granted merely with a
view to enable him to enjoy the ufe; and hence, where the ufe ceafes
it no longer operates;— in other words, where the loan is deltroyed
during his enjoyment of the ufe, he is not refponfible, becaufe of the
exiftence of the neceffity; whereas, i f it be loft at a time when he is
not ufing it, he is refponfible, becaufe of the non-exiftence of the neceffity
at that time. T h e argument of our dodtdrs is, that the term
jlreeat does not indicate refponfibility; for (according to their expo-
lition) it is an invefiiture with the ufe without a return, or (according
to Shafei and Koorokhef) a permiffion of the ufe ; and the feizin of it is
not a tranfgreffion on the part of the borrower, fince it was made with
the confent of the lender; and although that confent was merely with
a view to enable the lender to ufe the article, ftill the borrower did
not make the feizin with any other intention : he, therefore, is not
guilty of any tranfgreffion; and confequently is not refponfible.— In
reply to what Shafei urges it may be obferved, that the expence attending
a removal of the article is incumbent on the borrower, merely
on account of the advantage he derives from it, in the feme manner
as the maintenance of a loan is incumbent upon thp borrower, on account
of the advantage he derives from it, and not on account of any
defedt in his tenure. It is otherwife iu the cafe of an ufurper, where
the charges of removal are due, merely becaufe of the defedt in his
tenure.— With refpeft to feizin with a view to purchafe, the refponfibility
in that inftance does not arife from the feizin, but from the
defign with which it was made; for as feizin in virtue of a contra#
o f file induces refponfibility, fo alfo feizin with an intention of purchafe
induces refponfibility, fince feizin with, a view to any contra#
is fubjedt to the fame laws with that contraft, as has been explained
in its proper place.
I t
It is not lawful for ;j borrower tp let out a loan. If, therefore,
he fhould let it out, and it be afterwards loft, he is in that -cafe refponfible
for it ; becaufe a |gan is inferior to a leafe, and an inferior
cannot comprehend its fuperior; -and alfo, becaufe if the hire be valid,
it can only be fo on the fuppofition of its being binding; and that
cannot .be .fuppoled otherwife than with the confent of the lender; for
if it were , binding, without his confent, it would be a great injury to
him, .as it would deprive him'of the power of reluming the loan,
until the expiration of the leafe.—-The leafe of p loan is therefore in-?
Valid.—It is to be obferved that, in cafe of letting out the loan, the
borrower becomes refponfible, for it immediately upon the delivery to
the lafflcj'e ; for as the aft of lending does not comprehend hire, it
follows that filch delivery is an ufurpation. The lender is in this cafe
at liberty to take the compenfation, if he pleafe,. from the leffee, becaufe
of his having taken the property of another without his-coiifent.
If, however, he take it from the borrower, he is not then entitled to
any indemnification from the leffee, fince, in confequence of his receiving
a compenfation from the borrower,' it becomes evident that
the borrower only let his own property.—If he take the compenfation
from the leffee, the leflee is in that cafe entitled to an indemnification
from the borrower, who is the lefl'or, provided he [the leffee] had
not known that the leafe was a loan, as in that cafe he fuffers an im-
poiition. It is. otherwife where he takes the leafe knowing it to be a
loan, as there he fuffers no impofition.
It is lawful for a borrower to lend the thing borrowed, provided
it be of fuch a nature as may not fubjeft it to be differently affefted by
liferent ufes * .— Shafei is of opinion that the borrower is not entitled
W m m liM U m a m § a g°at? as the °bj*a from there § 1 1 S
1 » i g PurP°fe th^y reman, with H or O w . - B u t i f the loan
W b e t r ' 8*1 ■ 0f confe(Iuence that 4m fll0uId not iend “ to Omar, for i f
Cafc aff=* it.moretharf H ■ ° o
He cannot Set
it out to hire-v
or, i f lie let
it, he becomes
refponfible.
He may lend
it to another
perfon, unlefs
this fubyeft it