payment of
his debt,
way, that-it remain in hispoffeflion a sa fecurity for the fulfilment of
his .claim; — whereas, in the opinion of Shcfe'i, the claim of the
•pawnee is connedted with the fubfiance of the pledge, as a fatisfaftion
• for his claim,— in this way, that he may fell i.t, and thereby obtain a
difcharge,— it Being- until fuch fale a. truft repofed. in him,'and the
property of the depofitor;— and agreeably to thefe different tenets
feveral cafes occur concerning which there is a .difagreement between
our dodlors and Shafe'i:— for inftance,— if the pawner he defirous of
refuming his pledge for a fhort time, that he may enjoy theufe of it,
(as in the cafe, of taking milk from a cow, or fo forth,) he is.not.fo
allowed, according.to our do&ors, unlefs by the confent of: the
pawnee, as the object of the agreement o f pawn (namely, a conjlant
foffeffton) would by that means be entirely defeated,— whereas, ac-
cording.to Shafe'i, a pawner .may-even forcibly take back his pledge
for a temporary enjoyment of the ufe, nor can he be prevented from
this; becaufe (in his opinion) a pledge maybe fold .conformably to
the nature of the agreement; and the refumption of it towards
an enjoyment of the ufufrudt cannot be confidered as a fubverlion
thereof.— -(More cafes of this kind fhall .be exhibited in -the fequel.)
•without ad- *
mitting the
pawner to any
ufe of it.
The debt to
which the
pawn is op-
pofed muft be
.aftually due.
The refponfibility
for
the pledge
extends to the
amount of the
A c o n t r a c t of'pawn is not valid unlefs oppofed to a debt due at
that time; for the end o f fuch contract is to eftablith poffeffionin ordef
-to the obtaining o f payment-, and the obtaining o f payment prefuppofes
an obligation of debt.
A p l e d g e is infuredin the poffeflion of the'pawnee* to whatever
is "the fmalleft amount,— the debt of the pawnee, or the value the
pledge bore at the-time of its being depofited. Thus if a pledge equivalent
to-the amount of the debt perifh in the pawnee’s hands, .his
- * in other words, “ 7 pawnee is refpm ftlle fo r it'."
claim
C hap. I. P A W N S .
claim is rendered void, and he thereby, as it were, obtains a com- debt owing to
plete payment. If, on the contrary, the value o f the pledge exceed 1 e Pawnee'
the amount of the debt, the excefs is in that cafe confidered as a tru f,
and the whole of the pawnee’s claim is annulled, on account of the
decay of that part of the pledge which is equivalent to the amount
thereof; and the remainder [the excefs,] as being held in truft, is
not liable to be compenfated for, and confequently the pawner fuftains
the lofs of it. If, on the other hand, the value o f the pledge be lefs
than the debt, the pawnee forfeits that part o f his claim only which is
equal to the value of the pledge, and the balance, or excefs, muft be
paid to him by the pawner. Ziffer maintains that a pledge is liable to
be compenfated for according to its value;— whence i f a pledge of the
value of one thoufand five hundred dirms at the time o f delivery be deftroyed,
and the debt of the pawnee be one thoufand dirms the
pawner has a claim upon the pawnee for the difference, namely, five
hundred dirms.— His arguments upon this point are twofold._F ir st ,
a faying of Alee, “ fh e pawner and pawnee Jhall mutually r e f ore to
“ each other the excefs, whether the pledge exceed in value the debt, or
“ the debt the pledge."— S e c o n d l y , the amount in which the pledge
exceeds the debt being (as well as the fum equivalent to the debt)
given in pledge, the excefs is of confequence a fubjedt of refponfibility
-as much as that part which is equivalent to the debt. Hence, when
the debt is annulled, a reftitution muft be made of the furplus. The
opinion of our doctors upon this fubjedt is adopted from Omar Farook,
and Abdoolla-Ibn Mafaood. T h e y , moreover, argue, that as the
pledge was taken pofieffion of purely for the purpofe of obtaining
payment it is therefore a fubjedt of refponfibility only in that degree of
value from which the payment o f the debt might have been made, as
m the cafe of a real payment, the furplus being pawned merely fro re
neceflity, (as it was impoffible to have pawned the exalt value of the
debt,) and therefore not demanding reftitution.— W ith refpedt, alfo,
to the faying o f Alee, (as quoted by Z iffer,) the meaning of it is, that
VOL.IV. ' C c the