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rowed, were sain in the engagement, the lender ought to be imdemnified; for probably the diffimulation of the borrower induced hiin to lend the horse; but, had the soldier' openly and frankly acknowledged, that be was unwilling to expose bis own borse, since, in case of a loss, he was unable to purchase another, and his friend, nevertheless, had generously lent him one, the lender would have run, as in other instances, the risk of the day.
If the bailee, to use the Roman expression, be IN MORA, that is, if a legal demand have been made by the bailor, he must answer for any casualty that happens after the demand; unless in cases, where it may be strongly presumed, that the same accident would have befallen the thing bailed, even if it had been restored at the
proper time; or unless the bailee have legally tendered the thing, and the bailor have put himself in morá by refusing to accept it: this rule extends of course to every species of bailment.
" Whether, in case of a valued loan, or, where “ the goods lent are estimated at a certain price, " the borrower must be considered as bound in “ all events to restore either the things lent or " the value of them,” is a question, upon which thecivilians are as much divided, as they are upon the celebrated clause in the law Contractus: five or six commentators of high reputation enter
the lifts against as many of equal fame, and each fide displays great ingenuity and address in this juridical tournament. D'Avezan supports the affirmative; and POTHIER, the negative; but the fecond opinion seems the more reasonable. The word PERICULUM, used by ULPIAN, is in itfelf equivocal : it means bazard in general, proceeding either from accident or from neglect; and in this latter sense it appears to have been taken by the Roman lawyer in the passage, which gave birth to the dispute. But, whatever be the true interpretation of that passage, I cannot satisfy myself, that, either in the Customary Provinces of France, or in ENGLAND, a borrower can be chargeable for all events without bis consent unequivocally.given: if William, indeed, had said to Paul alternatively, “I promise, on my return to
Oxford, either to restore your horse or to pay
you thirty guineas," he must in all events have performed one part of this disjunctive obligation*; but, if Paul had only said, “ the horse, “ which I lend you for this journey, is fairly “ worth thirty guineas," no more could be implied from those words, than a design of preventing any future difficulty about the price, if the horse should be killed or injured through an omiffion of that extraordinary diligence, which the nature of the contract required,
Besides the general exception to the rule concerning the degrees of neglect, namely, Si quid convenit vel plus vel minus, another is, where goods are lent for a use, in which the lender has a common interest with the borrower: in this case, as in other bailments reciprocally advantageous, the bailee can be responsible for no more than ordinary negligence; as, if Stephen and Philip invite some common friends to an entertainment prepared at their joint expence, for which purpose Philip lends a service of plate to his companion, who undertakes the whole management of the feaft, Stephen is obliged only to take ordinary care of the plate; but this, in truth, is rather the innominate contract do ut facias, than a proper
Agreeably to this principle, it must be decided, that, if goods be lent for the sole advantage of the lender, the borrower is answerable for gross neglect only; as, if a passionate lover of musick were to lend his own instrument to a player in a concert, merely to augment his pleasure from the performance; but here again, the bailment is not so much a loan, as a mandate; and, if the musician were to play with all due skill and exertion, but were to break or hurt the instrument without
any malice or very culpable negligence, he would not be bound to indemnify the amateur, as he was not in want of the instrument,
and had no particular desire to use it. If, indeed, a poor artist, having lost or spoiled his violin or flute, be much distressed by this loss, and a brothermusician obligingly, though voluntarily, offer to lend him his own, I cannot agree with DesPEisses, a learned advocate of Montpellier and writer on Roman Jaw, that the player may be less careful of it than any other borrower : on the contrary, he is bound, in conscience at least, to raise his attention even to a higher degree; and his negligence ought to be construed with rigour.
By the law of Moses, as it is commonly translated, a remarkable distinction was made be. tween the loss of borrowed cattle or goods, happening in the absence, or the presence, of the OWNER; for, says the divine legislator, “ if a
man borrow aught of his neighbour, and it be “ hurt or die, the owner thereof not being with it, “ he shall surely make it good; but, if the owner “ thereof be with it, he shall not make it good*:" now it is by no means certain, that the original word signifies the owner, for it may signify the pollelor, and the law may import, that the borrower ought not to lose sight, when he can pofsibly avoid it, of the thing borrowed; but, if it was intended, that the borrower should always
. Exod. xxii. 14, 15.
answer for casualties, except in the case, which must rarely happen, of the owner's presence, this exception seems to prove, that no casualties were incaned, but such as extraordinary care might have prevented; for I cannot see, what difference could be made by the presence of the owner, if the force, productive of the injury, were wholly irresistible, or the accident inevitable.
An old Athenian law is preserved by DEMOSTHENES, from which little can be gathered on account of its generality and the use of an ambiguous word*; it is understood by Petit as relating to guardians, mandataries, and commiffioners; and it is cited by the orator in the case of a guardianship. The Athenians were, probably, satisfied with speaking very generally in their laws, and left their juries, for juries they certainly had, to decide favourably. or severely, according to the circumstances of each particular cafe.
IV. As to the degree of diligence, which the law requires from a pawnee, I find myself again obliged to diffent from sir EDWARD COKE, with whose opinion asimilar liberty has before been taken in regard to a depositary; for that very learned man
* Περί ών καθυφήκε τις, ομοίως όφλισκάνειν, ώσσερ αν αυτός έχη. Reifhe's edition, 855. 3. Here the verb bu piéval, may imply fight, er ordinary, neglect; or even fraud, as Petit has rendered it.