The pawner
may commit*-
iion the
■ pawnee, or
any other
perfon, to fell
the pledge,
anddifcharge
the debt;
but he cannot
reverfe the
com million,
i f it be included
in the
contrad!.
Rules with
refped! to an
agent appointed
to
fell a pledge.
If the pawner conftitute the pawnee, or any other perfon of cha-
ra&er, an agent for the fale of the pledge, towards effeding a dif.
charge o f his debt at the expiration of the flipulated term, fuch agency
is valid; becaufe here the pawner has merely created an agent for the
fale of his own property. If, alfo, fuch agency be expreffed as an
article in the contract of pawn, the pawner has not afterwards the
power of reverfing i t ; becaufe where the agency is thus flipulated, it
is one of the rights of the contrad, and is therefore binding, in con-
fequence of the contrad being fo ;— and alfo, becaufe, as the right of
the pawnee *is conneded with it, the annulment of it would be ade-
ftrudion of his right;— the cafe here being fimilar to that of an a^ent
for a defendant, who has been fo created at the inftance of the plaintiff
; for fuch agent cannot be diimiffed from his employ but in the
prefence of the plaintiff.
If the pawner conftitute any perfon his agent to fell the pledge,
without reftriding him to ready-money or credit, fo as to leave him
entirely at his own option in thofe points, and afterwards prohibit
him from felling it on credit, fuch prohibition is’of no effed; for the
agency (as was before mentioned) being at firft abfolute, is- not afterwards
fubjed to the reftridion of the pawner. In the fame manner,
the agent cannot be difmiffed by the pawnee, as on him he is no way \
dependant, having been created agent by the pawner. If, alfo, the ;
pawner die, the agency neverthelefs continues in force; for as the
contrad of pawn becomes not void upon the death of the pawner, fo
neither does the agency, that being exprefsly included therein.. Be-
fides, i f the contrad were by this event rendered void, it would be fa
only with refped to the rights of the heirs of the pawner, to which
the rights of the pawnee are fuperior. T h e agent, moreover, is empowered
to fell the pawn without the confent of the heins, in the fame
manner as he would have done in the lifetime of the pawner without
his confent. So likewife, if the pawnee fhould die the agency docs
not determine \ for a contrad of pawn is not rendered void, either by
the
ChaIp. III. P A W N S. 231
the death of both the parties, or of one ; but continues, as; before,
with all its rights and privileges; fuch as poffeflion, difeharge, and
the agency in queflion. T h e power of agency, however, ceafes on
the death of the agent ; and his heir or executor cannot ftand in his
place; becaufe agency is not an inheritance, the- conftituent being'
fuppofed to have confided in his; agent albne, and not in any other
perfon. It is recorded from Aboo Yoofaf, that the agent’ s executor
may fell the pledge ; for as the agency is binding, the executor has a
power of felling it ;— in the fame manner as where a Mozdrib, after
having exchanged the capital flock for any fpecies of merchandize,
dies,— in which cafe his executor is permitted' to difpofe o f the merchandize,.
the compad being ftill binding. T o this, however, it
may be replied, that agency is the right of a principal over his fador;
and the heirs of an agent can inherit only his own'rights. It is other-
wife with refped to Mozàribat, as the rights of that appertain to the
Mozârib, or manager.
A pawnee has not a power o f felling the pledge without the con-
fent of the pawner, as the property of it belongs abfoliitely to him.
Neither can the pawner fell - it without the confent of the pawnee;
for, as the thing pledged is, with refped to its worth, the right o f
the pawnee, it follows that the pawner, if he were to fell it without
the concurrence of the pawnee, would not have it in his power to fur-
render it to the purchafer.
If, at the expiration of the flipulated term o f credit, the agent
refiife to fell the pledge depofited for that purpofe with him, and the
pawner have abfconded, the Kâzee mufl compel him to exécute the
fale, by imprifonment, or other compulfatory means, the agency being
binding for two reafons ;— f ir st , becaufe, when exprefsly included
in the contrad of pawn, it becomes one of the rights thereof ; and,.
secondly, becaufe the right of the pawnee is conneded with it ; and
the difmiffion of the agent annihilates that right: T h e fame rules,
T h e pawnee
cannot fell it
without the
pawner’s confent.
Theagentr
at the expiration
o f the
term o f credit,
may be
compelled to
fell the
.pledge.
I l l