314 P A W N S . B ook XLVIII,
and a commutation being thus made of the debt for the price, the fa-
ther or guardian, in the opinion of Haneefa and Mohammed, become
anfwerable to the ward for the value.— According to Abqo Toofaf, on
the contrary, a commutation does not take place;— and the fame difference
of opinion obtains where an agent for fale difpofes of the goods
of his confbituent to a .perfon to whom he is indebted. T h e contract
of pawn, however, is in thefe inflances limilar to that of fale with re-
fpect to its effedts;- for in both the objedt is to difcharge the debts .of
the father or guardian with the goods of the infant, and to become
anfwerable for them.
A father may If a father pawn the goods of his infant child into his awn hands
retain the. r debt due from the child, or into the hands of another of his
goods or ms
infant child children being- an infant, or of his Have, being a merchant and not in
»"debt owing debt, it is lawful; becaufe a father, on account of the tender afFedtion
fant'to'him- which he is naturally fuppqfed to have for his child, is. co.nfidered in a
feif, or to an- double capacity, and his bare inclination as equivalent to the affent of
other infant r J x
child, or to both parties; in the fame manner as where a father fells the property
-candlTflave: of his infant child to himfelf.
I t is not lawful for a guardian to pledge into his own hands goods
belonging to his ward on account of a debt due to him, or into the
hands of his child being an infant, or into the hands of his fiave being
a merchant and free from debt; (nor is it permitted to him to gi®
any thing of his own in pawn into the hands of an orphan for a debt
owing to the orphan from himfelf;) for a guardian, being merely an
agent, .cannot of courfe have a double capacity in contracts. A guardian,
moreover, is more deficient in tendernefs than a father, and
therefore cannot, like a father, Hand in a double capacity in making
contra&s, Befides, a guardian pawning the property of his ward into
the hands of his infant child, or his ilave, being a merchant and free
from debt, is in effedl the fame as pawning it to himfelf.— It is other-
wife where a guardian pawns the property of his ward to his adult fon,
to
but a guardian
has not
this privi-
leg e;
Chap. II. P A W N S . 215
to his father, or to h'is indebted Have, fince over thefe he has no
authority.)
If a guardian .purchafe "victuals or apparel‘for the ufe o f his ward,
and, having debited him for the price, take in pawn part of his goods'
as a fecurify for the debt, it is valid ; for, as he is permitted to borrow
for the ufe of the orphan, and as taking a pawn is like the difcharge of
a claim, it is of cohfequence legal. Befides,, as it is lawful for a
guardian to trade on account of his ward, it follows that it is alfo lawful
for him to give and receive pawns, they being fimilar to receipts
and payments.
If a father pawn the goods of his infant fon, and the*infant attain
maturity, Bill he is not at liberty to annul the contract o f pawn and
take back the pledge until he fhall have difeharged thé debt; for the
contract is binding upon him; as the aft of a father on behalf of h'is
infant child is binding upon the child after he fhall have attained maturity,
a father being his infant child’s fubflitute.
If a father pawn the goods of his fon on account of his own debt,
and the fon, by a difcharge of the debt, redeem the fame, he has a
claim on* the father for the fum; for it was neceflary that the fon
fhould difcharge the debt, having occafion to releafe his goods out of
the hands of the pawnee;— in the fame manner as holds with refpedt
to the lender of a pledge; in other words, if a perfon lend any thing
to another with a view to that other’s pawning it, it is lawful to him
to redeem the article from the pawnee by a difcharge of the borrower's
debt, and then to prefer a claim of debt again!! the borrower; and fo
here likewife.— If, alfo, in this cafe, the pawn be loft or deftroyed
before the fon’s releafe of it by difeharging his father’s debt, it is Lawful
for him to prefer a claim upon the father, as he has in effedl difeharged
his debt by means o f his [the foil’s,] .property.
yet he alfo
may retain
the goods in
pawn for ne-
cejfaries fur-
nifhed by
him.
A child cannot
recover
property
which had
been pawned
b y his de-
ceafed father,
but by redeeming
it.
I f he redeem
it during the
father’ s lifetime,
he has
a claim on
him for what
he pays;
and the father
is refponlible
in cafe o f the
pledge feeing
loft.