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368 H I R E . B ook XXXL
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of a perfon who was not a party to the contradt, namely, the heir,
(fmce it would Ihift from the deceafed to his heir,) which is unlawful.
It admits a
referve o f option.
Befides, with refpedt to the lefl'or, it is the ufe of his property
which forms the fubjedt of the contradt; and as, in confequence of
his deceafe, this property changes to his heir, it follows that the.con-
traft of hire becomes null, becaufe of the fubjedt being lo ft; for a
chance in the right of property is the fame as a change in the thing it-
felf ._W ith refpedt to the hirer, or renter, on the contrary, if the
contract were to remain in force after his deceafe, it Can only do fo
upon the principle that his heir is his fubftitute. But the ufe of a
houfe cannot be a heritage without the houfe itfelf, becaufe inheritance
is a fucceffion, which is impoffible except with refpedt to a thing'
which endures at both times, fo as to be at firft the right of the perfon
through whom inheritance defcends, and at laft to be fucceeded
to by his heir.— As, therefore, inheritance cannot hold with refpeft
to the ufe, th'e contract of hire is neceflarily annulled. It is other-
wife where a perfon enters into a contrail of hire .on behalf of any
other than himfelf, fuch as an agent, an executor, or the procurator
of a W akf \ for in that cafe the contrail is not annulled, lince if! the
contrailing party die, the contrail is then transferred to him in whole
behalf it was executed, and he consequently becomes, by conftruilion
of l a w , the contradtor.
A r e s e r v e of option is valid in hire. Shafei maintains that it is
invalid; becaufe if a right of option be referved to the hirer, it is im-
poflible for him to rejeit, that is, to return the thing contrailed for
complete, lince in fuch cafe fome part of that thing is loft; or if, on
the other hand, a right of option be referved to "the leffor, it is im-
vpoffible for him to make a complete delivery ; and either circumftance
H repugnant to the validity of option. T h e argument of our dodtors
is that a contract of hire is a contradt of commerce, in which
it is not required that poffeffion be taken at the meeting of the contraft;
tradl * ; and a condition of option, may therefore be lawfully inferted
in it, in the fame manner as in a contradt of lale.— T h e caufe, moreover,
of the validity of option, in a contradt of fale, (namely convenience,)
is alfo to be found in a contradt of hire.— In. anfwer to the arguments
advanced b j Shqfei, it may be obferved that the circumftance
of a part of the fubjedt of the contradt being loft is not repugnant to a
rejedtion: in oppofition to fa le, as in that inftance the circumftance of
any part of the fubjedt of the contradt being loft is repugnant to a re-
jedtion under conditional option, or option from defedt.— The reafon.
of this, is that, in lale, a complete return of the article is pradticable,
under conditional option, or option from defedt, whereas in hire this,
js impradticable; a complete return of the fubjedt of the contradt is
therefore required in the one cafe, but not in the other.-—As, moreover,
a complete delivery is impradticable in hire, the hirer may be
compelled tO'take pofleffion, in cafe o f the leflor making delivery o f it
at a time when part of the term has elapfed:— in other words, where
a perfon takes a houfe (for inftance) for a year, and the leflor does
not deliver it until after the lapfe of a month, the lefiee is not at liberty
to decline taking pofleffion of it for the reft o f the year.
3h
A contract of hire is difiblved by a pretext f , according to our i t ;s diifclved
dodtors,— Shqfe'i maintains that it is not diflolved but by a defedt or tlle oc~
r 1 1 r / i • \ 1 J currence o f failure, became as (agreeably to his tenets) the advantage Hands in any fufficient
place of adtual fubftance, (whence it is that a contradt holds with re- dilution!
fpedt to it,) the cafe therefore bears a refemblance to fale.—-T h e argument
of our dodtors is that advantage is the thing contradted for;
and as that is not a fubjedt of feizin, a pretext in hire refembles.a failure
or defedt in merchandize exifting before it be taken pofleffion of,— in
* Meaning, at the time and place where the contract! is executed,
t Meaning (in this place) any circumftance which would render it impoffible to carry
the contradt into execution without inducing, to one or other o f the parties, ah injury not
provided for or mentioned in the contradt— It is more fully explained a little farther on.
Vol, III. B b b which