Apledgemay
be ftipulated,
in fale, for
the price of
the article
fold:
that when a pawn is loft the pawnee is held to be paid in refpedt of the
worth,— in this manner, that he becomes immediately anfwerable for
the value of the pawn to compenfate for its lofs, and that a commutation
for the debt takes place.— But when a debt is annulled for a pawn
then extant, though fomewhat damaged, an abfolute appropriation of
it takes place; that is to fay, it muft be fo detained as to render the
fubftance of it the property of the pawnee. This is, however, a mif-
taken determination, and is rejected in law ; wherefore it is moil: proper
that a fubftitute be made of the value *.
If a perfon fell a flave on condition that the purchafer fhall deliver
to him in pawn fome fpecified thing, it is lawful on a favourable con-
ftru&ion, whereas analogy Would fuggeft that it is unlawful. So alfo
it is lawful for a perfon to fell a flave, on condition that the purchafer
give, as his fecurity, a third perfon who is prefent at the conclufion
o f the bargain, and who confents to be fecurity. T h e objection fuo--
gefted by analogy, in this inftance, is that the agreement entered into
forms a double compaft, or one compact within another, which' is
prohibited in the l a w .— Befides, it containsa condition which is not
conformable to; the objedt of the agreement, and from which there
refults an advantage to the feller, who is a party in both the compacts
; and fuch a condition renders a contract of fale void. The reason,
however, for a more favourable conftrudtion of the law, in this
particular^, is that fuch a condition in the agreement is no way repugnant
to the contrail, fince bail or pawn tend to enfure and ftren^then
the agreement, and are in ftrict conformity with the obligation of the
price. If, therefore, the propofed furety be-prefent at the conclufion
of the agreement, or the pledge be fpecified, attention is paid to the
condition of bail or pawn; for, as being proper to the agreement,
* A long dilcuffion which follows upon this fu b je a is omitted by the tranflator, as
containing merely a train o f fubtle and frivolous diftindtions relative to ufiiry, o f no practical
utility. .
they
they are confequently legal. If, on the other hand, the furety be not
prefent, nor the pledge fpecified, the agreement is invalid; for the intention
of giving bail or pawn do not in that cafe exift, inafmuch as
the pledge or furety are unknown; and as there remains only a nugatory
condition, the agreement is therefore invalid. Still, however,
if the propofed furety appear before the parties have feparated, and
acquiefce in the bail, the agreement then becomes valid.— If the purchafer,
after the pawn had been agreed upon, fhould refufe to deliver
the pledge fpecified, the Kazee muft not compel him thereunto, as it
is the delivery alone that determines the agreement,— Ziffer has.faid,
that when the condition of pawn is included in the fale, a fulfilment
of it is absolutely neceflary; and that therefore the Kazee may enforce
it ; for the condition having been ftipulated as an article of the fale,
becomes one of the rights thereof, and is equally binding, although it
be not in itfelf of any force;—in the fame manner as-a power o f agency
included in a contrail of pawn, which is binding becaufe of the contract
being fo; in other words, if the pawner of a thing were to fti-
pulate that the pawnee fhall undertake the fale of it, fuch agency
would be binding;— whence it would not afterwards be in the power
of the pawner to retradl it. In reply to this, however, it is to be
ohferved, that the agreement of pawn, is voluntary on the part of the
pawner; and there is no compulfionto the execution of a voluntary
deed.. The feller, however, may, at his diferetion, either relinquifh
the agreement of pawn, or he may invalidate the fale; for as he had
earneftly defired the detention of the pawn, and as it was on the
ftrength of that condition only that he had agreed to the fale, he is not,
eonfequently, in default of it, obliged to adhere to his agreement,
unlefs the buyer fhould in the mean time either have paid the price,
or pawned, in place o f the thing fpecified, the worth of it in dirms or
deenars, in which cafe the fale becomes complete and binding, fince,.
in the firft inftance, the feller obtains his object, and in the fecond he
obtains the fulfilment of a condition with which he was fatisfied, the;
pawn of the value being the fame as that of the fubjtance, for the end ;
o f
but the agree,
ment is not
valid unlefs
the pledge be
particularly
fpecified;
nor can the
purchafer .be
compelled to
deliver it.