A depreciation
in the
value of the
pledge occasions
a proportionable
deduction
from the
pawnee’s
claim.
The pawnee
lending the
pledge to the
pawner, is
freed from
refponfibility
during the
loan;
but he may
refume it at
pleafure, and
then his refponfibility
reverts.
tute for the fubftance of the pledge, it is confequently fubjedt to the
lame rule. As foon, therefore, as the debt becomes due, the pawnee
may take it from the value; and if then a balance remain, it muft be
reftored to the pawner, as being a return for his property, with which
the pawnee has no concern.
If a perfon pawn any article eftimated at one thoufand dirms, in
fecurity of a debt of the fame amount payable at feme future period,
and the article, in confequence of a fall on the price, bear afterwards
a value of five hundred dirms, and be then deftroyed in the pawnee’s
hands, he [the pawnee] is refponfible for five hundred dirms, and five
hundred are alfo remitted from his debt; for the deficien'cy of five
hundred dirms arifing from the fall in the price being (as it were) a
decay of part of the pawn whilft in the hands of the pawnee, an adequate
fum is therefore retrenched from his claim; and the remainino-
five hundred dirms are likewife due from him in confequence of the
decay, and remain with him in pawn, as before ftated.
If a perfon, having received a Have in pawn, lend him to the
pawner, in order that he may enjoy the ufe of his fervice, or for any
other purpofe, and the pawner take pofleffion, the Have is no longer
a fubject of refponfibility with the pawnee ; (in other words, if he be
killed or loft in the hands of the pawner, the pawnee is not thence
held to have received payment of his debt;) becaufe he has palled
out o f the pofleffion of the pawnee; and the feizin of the pawner in
virtue o f a loan does not ftand as the feizin of the pawnee, as the
tenure of a loan is repugnant to that of a pawn, fince the latter inducts
refponfibility, whereas the former does not. The pawnee, however,
is nt liberty at any time to refume the pledge from the pawner;
becaufe he holds it by the tenure of a loan, which is not binding; and
alfo, becaufe the contradt of pawn ftill fubfifts;— whence it is that
if the pawner were to die without, having returned the pledge, the
pawnee
pawnee would in that cafe have a claim upon it in preference to the
other creditors ; (that is to fay, he would be entitled firft to take a
fatisfadtion for his claim from the pledge ; which done, i f any part
Ihould rémain it would be diftributed among the other creditors.)
Objection.— If a pawnee be not held liable for a pledged Have
after he is lent, how is the contrat of pawn fuppofed then to
exift ?
R e p l y .— Refponfibility is not, in every inftance, one of the re-
quifites of a contradt of pawn ;— whence it is that the effedt of the
contradt ■ reach es to the child of a pawned female (lave, although fuch
child be not a fubjedt of refponfibility from lofs or deftrudtion.
— As, therefore, the contradt ftill fubfifts, if the pawnee refume the
pledge from the pawner, he again becomes, liable for it, in the fame
manner as formerly, having again taken pofleffion o f it in virtue of
the contradt of pawn.
If either of the parties to a contradt of pawn lend the pledge with
the concurrence of the other to a ftranger, it is not in this cafe a fub-
jedt of refponfibility to the pawnee, any more than in the former
inftance : but the contradt of pawn ftill continues in force, and either
party is entitled to refume the pledge from the borrower, and to place
it in pawn as before, from the intereft each has in it.
If either party, with the confent of the other, let, fell, or beftow
the pawn in gift to a ftranger, it is excluded from the contradt, and
cannot again be fubjedt to it, unlefs the parties conclude a freffi agreement.
It is to be obferved that if, in any o f thefe cafes, the pawner
die before a reftitution of the pledge be made to the pawnee, he [the
pawnee] is upon the fame footing with the other creditors; becaufe as,
in confequence of thefe adts, a binding right of others is connedted
with the pledge, the effedt of the contradt no longer remains;—
whereas no binding right is connedted with a pledge in confequence of
the
The pledge,
being lent to
a ftranger by
either party,
is no longer a
fubjeft of refponfibility.
The pledge,
on being dif-
pofed of by
either party,
with the confent
of the
other, is excluded
from
the contrail.