Land may be
borrowed for
the purpofe
o f building or
plantations :
but the lender
is at liberty
to refome it.
adt is, however, regarded as a loan in this inftance, either becaufe
loan is more probable than g ift, or becaufe the obje£tS’of a loan are
twofold,—namely, the ufe of the article; and the reftitution of the fub-
ftance: and in the loan of the articles in queftion, a reftitution of an
equivalent is admitted in place of the identical fubftance.—Lawyers,
however, have, obferved that this dodtrine proceeds on the fuppolition
.of the loan being abfolute: for if it be limited, (as if a perfon ihould
lend another a quantity of dirms merely to place in his Ihop and attract:
cuftomersfrom the perfuafion of his being rich,) it is not in this cafe
aXizrsr-loan, but an Hreeat-Xosu, whence he is not entitled'to derive
any other ufe from it than what was fpecified: the cafe," therefore,
becomes the lame as if he had borrowed a vejjel or a Jhxsord to decorate
his lhop.
If a jaerfon borrow land, with a view to build -upon it, or plant
trees in it, i t ‘is lawful; becaufe the ufe to which the loan is. to be
applied is here afcertained; and as fueh ufe is the fubjedt Of property
in leafes, fo alfo in loans.—But in this cafe it is permitted to the lender
to refume the land; and as he is to receive it back in the ftafe in which
he lent it, he is therefore empowered to compel the borrower to W-
move his houfes or trees.—It is to be confidered, however, whether
or not any period ivas fixed for the loan.—If no period was fixed, then
no compenfation is due by the lender for the lofs he may have occa-
fioned to the borrower by the deftrudtion of his buildings or trees,
lince no deceit was pradtifed'on the borrower, but rather he deceived
himfelf, in trufting to a contradt which was abfdlute and unaccompanied
with any condition.—If, on the other hand;1 P period was
fixed for the loan, and it be refumed before the expiration of that
period, the refumption fo made is valid, fince a lender (as was before
K arz and Areeat, (although effentially different in their effeft,) the tranflator is under the
neceffity o f adopting the term loan in both inftances; — leaving it to the reader to conceive
the original term from the context.
explained) may refume a loan when he pleafes: but itis-nevbftlielefs
abominable in' this inftance, as it involves a breach of promife,' and
the lender is refponfible to the borrower for the lofs he luftains in the
removal of his trees and buildings,' in as much as he deceived the borrower
in fixing a period which it was natural to fuppofe he would adhere
to :—the -borrower, therefore, is éntitled to a fcompenfation from
the lender, in confideration of the damage he receives : and the feme
is mentioned by Kadooree in his compendium.—Hakim Shaheed maintains
that the borrower is at liberty either to take from the lender the
value of the trees and buildings, (in which cafe they become the.pro-
perty of the lender,) or to take a compenfation for his lofs,-j(in which
cfK|he is at liberty to. carry away the trees and the buildings.) ,•
Lawyers have obferved that if the removal o f,the trees and buildings
be detrimental to the ground, the choice of the alternative refts 'with
.the proprietor of the. ground,- as he is the principal,\ and the borrower
thepcondary, and a preference is always given to the prindpah
If a perfon borrow a piece of land for the cultivation of grain, the Land kalender
has not the power of.refuming, the loan until the gathering in puTpcfctf *
öfthe grain,, whethera period have been fixed ór not; becaufe the era-'' éailnot
nering ot the crop comes with.111 a certain and kno wn period; and in until the crop
Tufiering it to remain on the ground, an obfervance. of the right of
both the lender and borrower is maintained,,in the fame manner as
onder fimilar circumftances, in the cafe of a leafe.. It is other wife
with relpedt to trees ; becaufe, as the period of their exiftence is uncertain,
the fuffering them to remain would be an iivury to the
deader. _ , - , , ■ .
The charges of returning the loan muft be defrayed by the bor- Thei«™™«-
. rower; becaufe, as the reftitution of it-is incumbent on him, (fince “ fchar^s
e took it with a view to his own benefit,) he i’s confequently liable attend'óg the
fP the expences- attendant on fuch reftitution.—It is to be obferved »loan?'0” °f-
that the expences attending the return of.the fubjeft of a leafe are in-
- eumbentr