CHAP. XIII.
A debt sometimes arises when a thing is borrowed;[388] as if I lend a thing to you gratuitously, to be made use of in your service. The service being finished, you are bound to restore my property to me, without deterioration,[389] if it be in existence.
But, if the thing itself be destroyed, or has by any means been lost, whilst in your Custody, you are absolutely bound to return me a reasonable price. But by what, or whose proof,[390] it is to be shewn—or if any one has lent his property to be used in a certain place, or for a certain Term, and he who thus received it has used it, either in another place, or at another time, the extent to which he ought to make a recompense, or upon what proof, or whose property it is to be adjudged, are points that may be questioned. The party, indeed, shall be absolutely excused from the imputation of Theft, by reason that his possession of the thing detained originated through the owner of the property.
It may also be doubted, whether the Owner can recall his property so lent to another, within the time or place allotted, especially if he himself should have occasion to use it in the interval.[391]
CHAP. XIV.[392]
A debt also arises by reason of a Purchase and Sale. When any person sells a thing to another, the price is due to the Vendor, and the thing contracted for to the Purchaser.[393]
But a purchase and sale are effectually perfected from the moment the price is settled between the contracting parties; provided possession of the thing purchased and sold be delivered,[394] or that the price, either wholly, or in part, be paid, or, at least, that Earnest[395] be given and received.[396]
But, in the two former cases, neither of the Contracting parties can by any means at his own option recede from the Agreement, unless for some just and reasonable cause; as, if the terms of the contract were, that either of the parties may with impunity retract within a certain period; then, indeed, either party may within the period prescribed avail himself of the terms of the Contract and recede, without being liable to any penalty: since it is, generally speaking, unquestionable that, Conventio legem vincit.[397] Besides, if the Vendor sold the thing to the Purchaser as being sound and without fault,[398] and the Purchaser can afterwards satisfactorily shew, that the thing at the time of the contract was not sound, but faulty, then, indeed, the Vendor shall be compelled to take back his property. But it is sufficient, if the thing was in a proper state, at the time of the Contract, whatever may afterwards happen to it. But I doubt, as to the period within which this should be proved, or complaint made concerning it, especially where there is no special Agreement. Where, however, Earnest only has been given, if the Purchaser would recede from the Contract, he may do so, with the loss of the Earnest. But if, in such case, the Vendor would retract, it is a question whether he can do so without incurring a penalty.[399] It does not seem that he can; because he would then be in a better situation than the Purchaser. But, if it cannot be done with impunity, what punishment shall such conduct incur?[400] The risk of the thing sold and purchased generally belongs to the person who has possession of it,[401] unless it has been differently arranged.