Cafe o f a
guardian
pawning the
goods o f his
orphan ward,
and then borrowing
and
lofing the
pledge.
I t is lawful for a father to pawn the goods of his fon for a debt
jointly due by both. If, therefore, the pledge be deftroyed, the father
nfuft compenfate to the fon by the payment of a fum equivalent to his
[the father’ s] ffiare of the debt; becaufe he has paid off fo much by
means of the fon’s property.— The fame rule alfo holds with a grandfather,
or a guardian, in cafe of the non-exiftence of the father.
If a guardian purchafe victuals for an orphan, fo as that the price
is a debt upon the orphan, and pawn an article belonging to the orphan
as a fecurity for the debt, and the pawnee take pofleffion of the fame,
and the guardian then borrow it from the pawnee for the ufe of the
orphan, and it be deftroyed in his [the guardian’ s] hands, it is no
longer included in the contrail of pawn, nor is any perfon refponlible
for i t ; for the ait of the guardian in this inftance is the fame as that
of the orphan when he has attained maturity, he having borrowed the
article for his ufe,— in which cafe fuch is the rule. T h e debt of the
orphan, in this cafe, ftill remains due ; and the creditor is to receive
payment from the guardian, who is reimburfed by the orphan; becaufe
the guardian, in borrowing the pledge, was not guilty of any
tranfgreffion, as it was borrowed for the orphan’s ufe. If, on the
contrary, it have been borrowed on his own account, he is refponfible
for it to the orphan; becaufe in borrowing it for his own ufe he is
guilty of a tranfgreffion, as having ufurped a privilege which does not
belong to him. If, alfo, he were to ufurp it from the pawnee and
apply it to his own ufe, he is refponlible for the value, as having been
•guilty o f a tranfgreffion,— with refpect to the pawnee, by the ufurpa-
tion,— and with refpeft to the orphan, in having applied the article to
his own ufe. He is, moreover, in this inftance bound to difcharge
the debt of the pawnee, i f the term ftipulated ffiould have expired.
If, therefore, the value of the pawn be equivalent to the debt, he
muft difcharge it in full, without any reimburfement from the property
of the orphan; for the fame that was before due from the
orphan to him becomes now fo from him to the orphan, and hence a
commutation
commutation takes place. If, on the other hand, the value of the
pledge be Jhort of the debt, he muft difcharge from his own property
a fum equivalent to the pledge, and the refidue from that of the
orphan; for he is only liable for the amount of the value o f the pledge.
If, on the contrary, the value of the pledge exceed the debt, he muft
pay the amount of the debt to the pawnee in difcharge of his claim,
and the remainder is the right of the orphan. I f the ftipulated term
of payment ffiould not have expired, the value of the pledge muft be
depofited in pawn with the pawnee; for the guardian having deftroyed
one of the eftabliffied rights of the pawnee, the value o f it therefore
muft be given in pledge into his hands;— and upon the term of payment
arriving, the fame rules are to be obferved as are above fully fet
forth.— It is to be obferved, however, that the guardian, in cafe of
having extorted the pawn and applied it to the ufe o f the orphan, becomes
( if under thefe circumftances it ffiould be deftroyed) liable only
to make reparation for violating the rights of the pawnee, as in applying
it to the ufe of the orphan he does not violate his right; neither
is his taking it from the pawnee any tranfgreffion with refpedt to the
orphan, as a guardian is authorized to take the goods of his ward;—
whence it is that Mohammed, in the Zeeadat, (under the head o f A cknowledgments,)
has faid, “ Where a father or guardian acknowledges
“ having ufurped the goods of his infant ward, nothing is chargeable
“ to them in cafe of lofs or decay; becaufe this is not an ufurpation,
“ they having an unlimited power to take the goods of their ward.”
In the above cafe, therefore, the guardian is anfwerable to the pawnee;
and at the expiration o f the ftipulated term he muft difcharge his debt
and charge it to the account o f the orphan; for he has in no refpedt
prejudiced him, but has on the contrary applied the pawn to his ufe.
If, however, the term of payment be not arrived, the thing given in
reparation muft, until then, remain as a pledge in the hands o f the
pawnee, when he is to obtain payment of his debt, and the guardian
to recover the amount from the orphan's property.