is that there is no comptilfion on the pawner towards the adt,) it muft
therefore be effectually concluded, in the fame manner as in the cafe
of legacies;— and a contract of pawn can only be effectually concluded
by the ieiziu, in the fame manner as a legacy is effectually concluded
by the teftator dying without having receded from his bequeft.
It is to be obferved, that i f the depofitor relinquijh the pledge to the
pawnee, his fo doing is equivalent to an acceptance; in other words,
his not obftruCting the pawnee from taking pofleflion of the pledge is
equivalent to his actually inverting him with the pofleflion, and is a
fufficient proof of his having fo done. This is recorded in theZdbir
Rawayet; and the reafon of it is, that as the feizin of the pledge is
fanCtioned in virtue of the agreement, it therefore refembles the feizin
of a thing fold. It is recorded from rlboo Toofaf', that the feizin of a
moveable pledge can only be accomplifhed by the laying hold of, and
removing it, pot by the pawner’ s merely relinquifhing it, as above
mentioned; for the feizin o f a pledge is an occafion of refponfibility
from the fir fi, in the fame manner as ufurpation. T h e former .is,
however, the better opinion.
Upon the Upon a perfon receiving a pledge which is diftinguifhed and de-
faklng'pof- fined, (that is, unmixed and disjoined from the property of the depo-
fitor’ ) the accePtance being then afeertained, the contract is com-
contraft be- pleted, and confequently binding. (Until, however, the feizin
hng; • actually take place, the pawner is at full liberty either to adhere to,
or recede from the agreement, as:the validity of it rerts entirely upon
the feizin, without which the end and intention of a pledge eaniiot be
and he [the anfwered.) JJpon the pledge, therefore, being delivered -to the
rei^ n fiile pawnee, and his takingpoffeflion of the fame, he becomes anfwerable
forthep’.edge, in cafe of its being deftroyed in his hands. Shafei maintains that a
pledge being a trufi in-the hands of the pawnee, if it be deftroyed in
-“his pofleflion ftill he does not on that account forfeit his due; becaufe
it is recorded in the traditions, -that “ no pledge Jhall be difirained
“ fo r debt, and the pawner Jha ll be liable fo r all rifks,” meaning,
7 (according
(according to Shafei,') that i f the pledge be deftroyed, ..ftill the debt is
not annulled on account of any refponfibility arifing therefrom;— and
further becaufe a pledge being merely teftimony, the lofs of it does
not annul the debt, feeing that a debt ftill exifts after the lofs. even of
a 'written bond-, the reafon of which is, that the ufe of taking fuch a
teftimony is to add greater fecurity to the pawnee’ s debt; and therefore
if, from the decay or deftruCtion of the pawn or teftimony, the
debt of the pawnee were cancelled, it would be oppofite to the fpirit
of the' agreement, fince it would admit a poflibility of the pawnee’s
rio-ht becoming extinguifhed, a thing repugnant to confervation and
fecurity. T h e arguments of our dodtors upon this point are twofold.—
F irst, a tradition of the prophet, who oqce decreed the claim of a-
pawnee to be annulled, on account o f the death of a horfe which he
had in a pledge; (although, indeed, feveral of the learned, in their
c o m m e n t s on this tradition, have remarked, that it was, made at a ,
time when the value of the horfe could not be afeertained.)—
S econdl y, all the companions of the prophet, and their followers,.
have declared a pledge to be a fubjedt of refponfibility; that is to fay,
that if if decay in the hands of the pawnee, he fuftains-the lofs.—
With refpedt, moreover, to the aflertion of Shafei, that “ a pledge
“ is a truft,” it is inadmiflible, as being in diredt contradidtion to the
concurrent opinion of the companions above-mentioned. With refpedt,
alfo, to the tradition adduced by him as an argument, the real
meaning of it is, “ that a pledge cannot be completely feized, fo as to
“ render it the abfolute property of the pawnee, in the room of his other
“ claim,” an explication which Koorokhee has tranfmitted to us, as delivered
by former fages.— As, moreover," the-pawnee is entitled to take
pofleflion of the pledge as a fecurity for his claim, and to- detain it,
(for Rahn, in its literal fenfe, fignifies detention,) it neceflarily follows
that a pledge is not a truft.— Jn Ihort, in the opinion of which he is
our doctors, a contradt of pawn requires that the pledge be continu- detain^miUl
ally detained in the hands of the pawnee in lieu of his debt, in this he re“ lve
way,