Money , and
all nueigbable
and meafure-
able articles
may be
pawned,
— Rules to be
obferved in
thofe in*
fiances.
Cafe o f a
filver veflel
pawned,—
and afterwards
lofi.
I'T is lawful to pawn dim s, deenars, or any article o f weight or
meafurement of capacity; for as a debt may be difcharged by means
of fuck articles, they are confequently fit to be pawned. If, therefore,
anyiueb articles be pawned in fecurity for an,article of the fame
kind or. fpecies, and be loft in the pawnee’s hands, the debt becomes
cleared in, a degree proportionate to the value of the pledge, i f that be
either equal to, or left than, the amount of the debt. If, on the contrary,
the value of the pledge; exceed the amount the debt, the
whole o f the debt is in that cate held to be, difcharged, notwithftand-
ing the one be bafe and. the other pure; for where the pawn and debt
are o f the fame kind, the quality is not to he con fide red. This is the
opinion of Haneefa ; fbr (according to him) the pawnee in the above
cafe is to receive payment of his debt by weight, and not by value._i
T h e two difciples, on the contrary, hold that the pawnee, on the lofs
of the pledge, becomes refponfible for its value in feme thing of a different
fpecies, which value he holds (as it were) in pawn in lieu of
the original pledge * . T h e argument of Haneefa is, that any regard
to quality drops in the cafe of ufurious property-)- when oppofed to its
own fpecigs.;— A difeharge in a pure article of this nature, moreover,
in return for a bafe article, is lawful,— as where, for inftance, a
debtor, through inattention, repays a debt of bafe money in pure
money.
If a filver veffel equiponderant to ten dims be pawned for a debt
of ten dir ms, and afterwards loft in the hands of the pawnee, the whole
amount of the debt ftands difcharged. The compiler of the Reddy a
remarks that this rule univerfally obtains with our doctors wh'ere the
* Here follows a cafe in point, quoted from the Jama Saghter, with the author’s remarks,
and the difference o f opinion among the MuJJulman doctors concerning it, which
is, omitted by the tranilator, as.it interrupts the difeuffion o f the point in queftion, and the
arguments adduced have been before fully detailed under the head o f XJfury,
f Arab . Imwal Rabw ie; meaning any fort o f grain,— and alfo gold or filv er ;__in fliort,
every thing with refpedt to which ufury can be conceived pofiible.
value
value of theveffel is either equal to, or greater than the weight of i t :
but that where the value, by being fhort of the weight, is fhort of the
debt, there is a difference of opinion; for, according to Haneefa, the
whole debt, in that cafe, ftands difcharged, (he holding that the
pawnee to have received payment by the weight of the veflel;)—
whereas the two difciples teach that the pawnee remains refponfible
for the value, which continues with him (as it were) in pawn, his
claim ftill exifting as before. If, oft the contrary, the veflel be not or broken.
lojl, Outbroken, then, on the firft fuppofition, (that is, fuppofing the
weight and value to be the fame,) according to Haneefa and Aboo
Yoofaf the pawner is not compellable to redeem i t ; for if he were to
redeem it by paying the greateft part of his debt, and deducting fome
fmall part of it in confideration of the lofs arifing from the breakage,
it would in that cafe appear that he coniider the quality feparately,
and on this account paid only part of his debt, which is illegal; or if,
on the other hand, he were to redeem it by paying the whole of his
debt, and thus taking the broken veflel, it would be a lofs to him._
The pawner, therefore, (according to the two Elders,) is at his own
option, either to redeem the broken veffel by paying the whole of his
debt, or to relinquifh it and compound with the pawnee for its value,
which may either be of the feme or of a different Ipecies from the veffel
; and this value remaining (as it were) in pawn, the pawnee becomes
proprietor of the veffel, becaufe o f hi9 having thus made com-
penfetion for it. In the opinion of Mohammed, on the contrary, the
pawner may either redeem the broken veffel by a payment o f the
whole of the debt, or he may give it to the pawnee as a. difeharge of it,
in the fame manner as in- the cafe o f the lofs of the pawn. Hence
Mohammed conceives- an analogy between a pawn damaged and a pawn
lojl, for this reafon, that when a redemption cannot be made without
a compenfation, it is then the feme as i f the pawn were loft; and as,
when the pawn, is adually loft, the debt becomes (in the opinion of
all our doftors) annulled, it is fo likewife in the prefent inftance,
which is a cafe of lofs in effect.— Haneefa and Aboo Toofcff have feid,
I f 2 that