[384] Vide LL. Gul. Norman. c. 28. (Al. MS.) The Law here alluded to, the Reader has already been put in possession of. See p. 170. note 1.
[385] Vide Constitutions of Clarendon. (Anglo-Sax. LL. Ed. Wilkins. 324.)
[386] The Text is not free from difficulty which evidently arises from an omission. I have ventured to introduce the words, “should he, however, deny it, the Creditor.” The Context countenances this conjecture.
[387] A similar Law is to be found amongst those ascribed to the Conqueror. (LL. Gul. Conq. c. 28.)
[388] Commodatum. (Justin. Inst. 3. 15. 2.) A Commodatum differed from a mutuum, because the same person continued to be the owner, and because the same thing was to be returned, and not another of the same quantity or quality, as in a mutuum. (Dig. 13. 6. 8. and 9.) “They have different names in Latin, though not in English,” says Dr. Wood. (Civil Law. Inst.) To avoid the inconvenience and confusion of employing the same term for each, the Translator has called the one a loan, the other a borrowing. The distinction between a gratuitous loan for use, and a simple loan, occurs in the Code Napoleon, which is drawn, as, indeed, may be observed of no small portion of that work, from the Civil Law.
[389] Skene refers to Exodus c. 22. v. 14. 15.
[390] “By him who gave the Loan, and by his Witness,” says the Regiam Majestatem. (L. 3. c. 9.)
[391] “It is answered, he may not repeat it or seek it again, because any loan may not be repeated or called back again, until the use be perfected and fulfilled to the which it was lent.” (Reg. Maj. L. 3. c. 9.) But the modern French Code permits it to be recalled. (S. 1889.)
[392] Vide Bracton fo. 61. b. and Fleta L. 2. c. 58.
[393] Vide Justin. Inst. 3. 24. §. Custum. de Norm. c. 22. and Bracton 61. b. The two chief obligations of the Vendor, as laid down in the present and following chapters, are comprised in a section of the modern French Code—that of delivering, and that of warranting the thing which he sells. (Code Napoleon 1603.)