GHAP. IX.

CONTRACTS OF LENDING OF INCONSUMABLE

PROPERTY.

WHEN the identical loan is to be returned,

as a book, a horfe, a harpfichord, it is

called inconsumable, in oppofition tó corn, wine, money, and those things which perish, or are parted with in the use, and can therefore only be reftored in kind.

The queftions under this head are few and fimple. The first is, if the thing lent be loft or damaged, who ought to bear the lofs or damage? If it be damaged by the use, or by accident in the ufe, for which it was lent, the lender ought to bear it; as if I hire a job coach, the wear, tear, and foiling of the coach must belong to the lender; or a horse to go a particular journey, and in going the proposed journey, the horse die, or be lamed, the lofs must be the lender's: on the contrary, if the da

mage

mage be occafioned by the fault of the borrower, or by accident in fome use for which it was not lent, then the borrower muft make it good; as if the coach be overturned or broken to pieces by the carelessness of your coachman; or the horse be hired to take a morning's ride upon, and you go a-hunting with him, or leap him over hedges, or put him into your cart, or carriage, and he be strained, or staked, or galled, or accidentally hurt, or drop down dead, whilst you are thus ufing him; you must make fatisfaction

to the owner.

The two cafes are diftinguished by this circumftance, that in one cafe, the owner forefees the damage or risk, and therefore confents to undertake it; in the other cafe, he does not.

It is poffible that an eftate or a house may, during the term of a leafe, be fo increased or diminished in its value, as to become worth much more, or much lefs, than the rent agreed to be paid for it. In fome of which cafes it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of juftice feems to be this: If the alteration might be expected by the parties, the hirer must take the confequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a

fishery,

fishery, or a decoy, may this year yield nothing or next to nothing, yet the tenant shall pay his rent; and if they next year produce tenfold the ufual profit, no more fhall be demanded; because the produce is in its nature precarious, and this variation might be expected. If an estate in the fens of Lincolnshire, or the ifle of Ely, be overflowed with water, fo as to be incapable of occupation, the tenant, notwithstanding, is bound by his leafe; because he entered into it with a knowledge and forefight of this danger. On the other hand, if by the irruption of the fea into a country where it was never known to have come before, by the change of the course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a mofs, the incurfions of an enemy, or by a mortal contagion amongst the cattle; if, by means like these, an eftate change, or lofe its value, the loss shall fall upon the owner; that is, the tenant fhall either be difcharged from his agreement, or be entitled to an abatement of rent. A house in London, by the building of a bridge, the opening of a new road or ftreet, may become of ten times its former value; and, by contrary causes, may be as much reduced in value: here alfo, as before, the owner, not the hirer, fhall be affected by

the

the alteration. The reafon upon which our determination proceeds is this, that changes fuch as thefe, being neither foreseen, nor provided for, by the contracting parties, form no part or condition of the contract; and therefore ought to have the fame effect as if no contract at all had been made (for none was made with respect to them), that is, ought to fall upon the owner.

CHAP.

CHAP. X.

CONTRACTS CONCERNING THE LENDING OF

MONEY.

T

HERE exifts no reason in the law of

nature, why a man fhould not be paid for the lending of his money, as well as of any other property into which the money might be

converted.

The fcruples that have been entertained upon this head, and upon the foundation of which, the receiving of intereft or ufury (for they formerly meant the fame thing) was once prohibited in almost all Chriftian countries *, arofe from a paffage in the law of Moses, Deuteronomy xxiii, 19, 20, "Thou fhalt not lend upon ufury to

thy brother; ufury of money, ufury of vic"tuals, ufury of any thing, that is lent upon

* By a ftatute of JAMES the First, interest above eight pounds per cent. was prohibited (and confequently under that rate allowed), with this fage provifion: That this flatute shall not be conftructed or expounded to allow the practice of ufury in point of religion or confcience.

"nfury: