The pawner
cannot reclaim
the
pledge on the
plea off e llin g
it for the dil-
charge of his
debt.
The pawnee
mud reftore
what he has
received in
payment, if
the pledge
perifti in his
hands«
The contract
is not dif-
folved until
the pledge be
reftored.
The debt is
difcharged
by the lofs of
the pledge.
If the pawner demand a reftitution o f the pledge with a view to
fell it, and therehy pay off his debt, ftill it is not incumbent on the
pawnee fo to do, as the contraft o f pawn requires that the pledge be
continually detained in the hands of the pawnee until fuch time as his
debt be paid.— If, alfo, the pawner difcharge the debt in part, ftill it
remains with the pawnee to keep pofleflion until he fhall have received
payment of the balance: but whenever a complete payment is made,
the pawnee mull: be directed to reftore the pledge to the pawner, as
the obftacle to his fo doing no longer exifts, the claimant having obtained
his due.
I f , after the difcharge o f the debt, the pledge Ihould be deftroyed
with the pawnee, he mult return the money he received in payment;
for as, upon the pledge perilhing in the hands of the pawnee, he appears
to have received payment in virtue of his previous pofleflion of
it, he therefore appears to have taken payment twice, and confequently
mult return what he has received. In the lame manner, i f the pawner
and pawnee Ihould, by mutual confent, dilfolve the contract of
pawn, the pawnee may, neverthelefs, keep pofleflion of the pledge
until fuch time as he receive payment of his debt, or exempt the
pawner therefrom.
A contract of pawn is not rendered void until the pawnee
reftore the pledge to the pawner, according to the prefcribed mode of
annulment.
It the pledge perilh in the hands of the pawnee, after the parties
have in concert diflblved the contradt, his debt is in that cafe con-
fidered as difcharged, provided the value of the pledge be adequate to
it, the agreement being ftill held in force.
I t
I t is not lawful for the pawnee to enjoy, in any lhape, the ufu-
frutt. of the pledge.— If, therefore, a Have be pawned, the pawnee
muft not employ him in fervice;. if a houfe, he muft not dwell in i t ;
and if clothes, he muft not wear them ;— for the right of the pawnee
is in the pojfejjion, not in the ufe.— Neither is a pawnee authorized to
fell the pledge, unlefs at the delire of the pawner.
A pawnee is not permitted to let out, or give the pledge in loan;
for as he is himfelf prohibited from enjoying any ufe of it, he confequently
is not authorized to confer the power o f enjoyment upon
another. If, therefore, he do lb, it eftablilhes a tranfgreflion: but a
tranfgreflion does not occalion a diflolution of the contradt..
A pawnee may either watch over the pledge himfelf, or he may
devolve the care of its prefervation upon his w ife , child', or fervant,
provided they be of his family. If, on the contrary, he commit the
qare of it,, or refi'gn it in truft, to one who is not of his family, he
becomes the fecurity, and the perfon to whom he gave it the fecondary
fecurity. Concerning this, however, there is a difference of opinion
between Haneefa and his two difciples; for he does not confider the
other perfon to be a fecondary fecurity; whereas they have declared it
to be in the option of the pawner to make whomfoever he may pleafe
the fecondary fecurity..
If a pawnee commit any tranfgreflion * with refpedt to the pledge,
he muft make reparation to the whole amount of the value; in the
fame manner as in a cafe of ufurpation; for the amount in which the
value of the pledge exceeds the debt is a triift; and a tranfgreflion.
with refpedt to a truft, renders the perfon who commits it liable to
make complete reparation,.
* Such as converting it to his own ufe, Sic. (as prohibited above.)
I f
The pawnee
is not entitled
to ufe the
pledge;
or to len d or
let it to h ir e.
He may con-
fign it in
charge to any
of his family.
JT He tr a n f -
g re fs w ith re-
fpett to it, he
is refponfible
for the whole
value.