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Bouvier's Law Dictionary, Revised 6th Edition (1856)

LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on the
lender. 1. The lender has the right to revoke the loan at his mere pleasure;
9 Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R. 480; 2 Campb. Rep. 464; and is
deemed the owner or proprietor of the thing during the period of the loan;
so that au action for a trespass or conversion will lie in favor of the
lender against a stranger, who has obtained a wrongful possession, or has
made a wrongful conversion of the thing loaned; as mere gratuitous
permission to a third person to use a chattel does not, in contemplation of
the common law, take it out of the possession of the owner. 11 Johns. Rep.
285; 7 Cowen, Rep. 753; 9 Cowen, Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep.
432; 13 Johns. Rep. 141, 661; Bac. Abr. Trespass, c 2; Id. Trover, C 2. And
in this the Civil agrees with the common law. Dig. 13, 6, 6, 8; Pothier,
Pret �, Usage, ch. 1, Sec. 1, art. 2, n. 4; art. 3, n. 9; Ayliffe's Pand. B.
4, t. 16, p. 517; Domat, B. 1, t. 5, Sec. 1, n. 4; and so does the Scotch
law. Ersk. Pr. Laws of Scotl. B. 3, t. 1 Sec. 8.
3.-2. In the civil law, the first obligation on the part of the
lender, is to suffer the borrower to use and enjoy the thing loaned during
the time of the loan, according to the original intention. Such is not the
doctrine of the common law. 9 Cowen, Rep. 687. The lender is obliged by the
civil law to reimburse the borrower the extraordinary expenses to which he
has been put for the preservation of the thing lent. And in such a case, the
borrower would have a lien on the thing, and may detain it, until these
extraordinary expenses are paid, and the lender cannot, even by an
abandonment of the thing to the borrower, excuse himself from repayment, nor
is he excused by the subsequent loss of the thing by accident, nor by a
restitution of it by the borrower, without insisting upon repayment.
Pothier, Pret � Usage, ch. 3, n. 82, 83; Dig. 13, 6, 18, 4; Ersk. Pr. Laws
of Scotl. B. 3, t. 1, Sec. 9. What would be decided at common law does not
seem very clear. Story on Bailm. Sec. 274. Another case of implied
obligation on the part of the lender by the civil law is, that he is bound
to give notice to the borrower of the defects of the thing loaned; and if he
does not and conceals them, and any injury occurs to the borrower thereby,
the lender is responsible. Dig. 13, 6, 98, 3; Poth. Pret � Usage, n. 84;
Domat, Liv. 1, t. 5, s. 3, n. 3. In the civil law there is also an implied
obligation on the part of the lender where the thing has been lost by the
borrower, and after he has paid the lender the value of it, the thing has
been restored to the lender; in such case the lender must return to the
borrower either the price or thing. Dig. 13, 6, 17, 5; Poth. Id. n. 85. "The
common law seems to recognize the same principles, though," says Judge
Story, Bailm. Sec. 276, "it would not perhaps be easy to cite a case on a
gratuitous loan directly on the point." See Borrower; Commodate; Story,
Bailm. ch. 4; Domat. Liv. 2, tit. 5; 1 Bouv. Inst. n. 1078, et seq.

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