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CH A P. IX.
CONTRACTS OF LENDING OF INCONSUMABLE
W H EN the identical loan is to be returned,
as a book, a horse, a harpsichord, it is called inconsumable, in opposition to corn, wine, money, and those things which perish, or are parted with in the use, and can therefore only be restored in kind.
The questions under this head are few and fimple. The first is, if the thing lent be lost or damaged, who ought to bear the loss or damage? If it be damaged by the use, or by accident in the use 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 loss must be the lender’s: on the contrary, if the da
mage be occasioned by the fault of the borrower, or by accident in some use for which it was not lent, then the borrower must 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 cases are distinguished by this cire cumstance, that in one case, the owner foresees the damage or risk, and therefore consents to undertake it; in the other case, he does not.
It is possible that an estate or a house may, during the term of a lease, be so increased or diminished in its value, as to become worth much more, or much less, than the rent agreed to be paid for it. In some of which cases, it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: if the alteration might be expected by the parties, the hirer must take the consequence ; 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 usual profit, no more shall 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 isle of Ely, be overflowed with water, so as to be incapable of occupation, the tenant, notwithstanding, is bound by his lease; because he entered into it with a knowledge and foresight of this danger. On the other hand, if by the irruption of the sea 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 moss, the incursions of an enemy, or by a mortal contagion amongst the cattle; if by means like these, an estate change, or lose its value, the loss shall fall upon the owner; that is, the tenant shall 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 street, may become of ten times its former value; and by contrary causes, may bę as much reduced in value : here also, as before, the owner, not the hirer, shall be affected by
the alteration. The reason upon which our determination proceeds is this, that changes such as these, being neither foreseen, nor provided for, by the contracting parties, form no part or condition of the contract; and therefore ought to have the same 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.
THERE exists no reason in the law of na
1 ture, why a man should not be paid for the lending of his money, as well as of any other property into which the money might be converted
The scruples that have been entertained upon this head, and upon the foundation of which, the receiving of interest or usury (for they formerly meant the same thing) was once prohibited in almost all Christian countries, * arose from a pafsage in the law of Moses, Deuteronomy xxiii. 19, 20, “ Thou shalt not lend upon usury to “ thy brother ; usury of money, usury of vic“ tuals, usury of any thing, that is lent upon
* By a statute of James the First, interest above eight pounds per cent. was prohibited, (and consequently under that rate allowed) with this fage provision ; That this statute Mall not be construed or expounded to allow the practice of usury in point of religion or conscience.