Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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to maintain the fitters continues till their marriage. In
psrfons of lower rank, the obligation to aliment the fitt¬
ers ceafes after they are capable of fubfitting by any fer-
vice or employment.
5. All obligations, arifing from the natural duty of
reftitution, fall under this clafs : Thus, things given upoa
the view of a certain event, mutt be reftored, if that e-
vent does not afterwards exitt: Thus alfo, things given
■ob turpem caufam, where the turpitude is in the receiver
and not in the giver, mutt be reftored. And on the
fame principle, one upon whofe ground a houfe is built
or repaired by another, is obliged, without any covenant,
to reftore the expence laid out upon it, in fo far as it has
been profitable to him.
6. A contraff is the voluntary agreement of two or
more perfons, whereby fomething is to be given or per¬
formed upon one part, for a valuable confideration, either
prefent or future, on the other part. Confent, which is
implied in agreement, is excluded, i. By error in the
elfentials of the contra<ft, for in fuch cafe, the party does
not properly contraitt, but errs or is deceived; And this
may be alfo applied to contradts which take their rife
from fraud or impofition. 2. Confent is excluded by
fuch a degree of reftraint upon any of the contrading
parties, as extorts the agreement ; for where violence
or threatening are ufed againft a perfon, his will has really
no part in the contradt.
7. Loan or mutuum is that contradf which obliges a
perfon, who has borrowed any fungible fubjedt from an¬
other, to reftore to him as much of the fame kind, and of
equal goodnefs. Whatever receives its eftimation in
number, weight, or meafure, is a fungible, as corn, wine,
current coin, <bc. The only proper fubjedts of this con-
tradl are things which cannot be ufed, without either
their extindtion or alienation ; hence, the property of the
thing lent is neceffatily transferred by delivery to the
borrower, who confequently mutt run all the hazards,
either of its deterioration or its perifhing, according to
the rule, res psrit fus> domino. Where the borrower
negledts to reftore, at the time and place agreed on, the
eftimation of the thing lent muft be made according to its
price at that time and in that place; becaufe it would have
been worth fo much to the lender, if the obligation had
been duly performed. If there is no place-nor time fti-
pulated for, the value is to be ftated according to the
price that the commodity gave when and where it was
demanded. In the loan of money, the value put on it
by public authority, and not its intrinfic worth, is to be
confidered. This contradl is obligatory only on one part;
for the lendter is, fubjedled to do obligation: The only
adtion therefore that it produces, is pointed againft the
borrower, that he may reftore as much in quantity and
.quality as he borrowed, together with the damage the
lender may have fuffered through default of due perform-
8. Commodate is a fpecies of loan, gratuitous on the
part of the lender, where the thing lent may be ufed,
without either its pe; idling or its alienation. Hence, in
.this fort of loan, the property continues with the lender :
the only right the borrower acquires in the fubjedt is its
*}fej after which he muft reftore the individual thing that
w.
he borrowed: Confequently, if the fuhjedl perflhes/k
penfhes to the lender, unlefs it has perifhed by the bor¬
rower’s fault. What degree of fault or negligence makes
either of the contradting parties liable to the other in da¬
mages, is comprehended under the following rules.
Where the contradl gives a mutual benefit to both parties,
each contradter is bound to adhibit a middle fort of dili¬
gence, fuch as a man of ordinary prudence ufes in his af¬
fairs. Where only one of the parties has benefit by the
contradf, that party muft ufe exadt diligence ; and the o-
ther who has no advantage by it is accountable only for
dole, or for grofs omiffions which the law conftrues to be
dole. Where one employs lefs care on the fubjedt of any
contradt which implies an exuberant truft, than he is known
to employ in his own affairs, it is confidered as dole.
9. By thefe rules, the borrower in the contradt of com¬
modate muft be exadtiy careful of the thing lent, and re¬
ftore it at the time fixed by the contradt, or after that
ufe is made of it for which it was lent: If he puts it to
any other ufe, or negledts to reftore it at the time cove¬
nanted, and if the thing perifhes thereafter, even by mere
accident, he is bound to pay the value. On the other
part, the lender is obliged to reftore to the borrower fuch
of the expences difburfed by him on that fubjedt, as arofe
from any uncommon accident, but not thofe that natural¬
ly attend the ufe of it. Where a thing is lent gratuouC-
ly, without fpecifying any time of redelivery, it confti-
tutes the contradt of precarium, which is revokabie at
the lender’s pleafure, and, being entered into from a per-
fonal regard to the borrower, ceafes by his death.
10. Depofitation is a contradt, by which one who has
the cuftody of a thing committed to him (the depofita-
ry), is obliged to reftore it to the depofitar. If a reward
is bargained for by the depofitary for his care, it refol-
ves into the, contradt of location. As this contradt is g' a-
tuitous, the depofitary is only anfwerable for the confe-
quences of grofs negledt; but after the depofit is reder
manded, he is accountable even for cafual misfortunes.
He is intitled to a full indemnification for the lo/fes he
has fuftained by the contradt, and to the recovery of all
fums expended by him on the fubjedt.
11. An obligation arifes without formal padtion, barely
by a traveller’s entering into an inn, fuip, or liable, and
there depoliting his goods, or putting up his horfea,;
whereby the innkeeper, Ihipmafter, or ftabler, is account¬
able, not only for his own fadts and thofe of his fervants,
(which is an obligation implied in the very exercife of
thefe employments), but of the other guefts or paffengers ;
and, indeed, in every cafe, unlefs where the goods have
been loft damno fat alt, or carried off by pirates or houfe-
breakers. Not only the mailers of Ihips but their employ¬
ers, are liable each of them for the ftiare that he has in
the Ihip ; but by the prefeut cuftom of trading nations, the
goods brought into a Ihip muft have been delivered to the
mailer or mate,, or entered into the Ihip-books. Carriers
fall within the intendment of this law; and prddlice has
extended it to vintners within borough. The extent of
the damage fuftained by the party may be proved by his
own oath in litem.
12. Sequeftration, whether voluntarily confented to
by the parries, or aurhprifed by the judge, is a kind of
depoilt;