But, if the thing itself be destroyed, or has by any means been lost, whilst in your Custody, you are absolutely bound to return me a reasonable price. But by what, or whose proof,[390] it is to be shewn—or if any one has lent his property to be used in a certain place, or for a certain Term, and he who thus received it has used it, either in another place, or at another time, the extent to which he ought to make a recompense, or upon what proof, or whose property it is to be adjudged, are points that may be questioned. The party, indeed, shall be absolutely excused from the imputation of Theft, by reason that his possession of the thing detained originated through the owner of the property. [Footnote 390: “By him who gave the Loan, and by his Witness,” says the Regiam Majestatem. (L. 3. c. 9.)] It may also be doubted, whether the Owner can recall his property so lent to another, within the time or place allotted, especially if he himself should have occasion to use it in the interval.[391] [Footnote 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.)] CHAP. XIV.[392] [Footnote 392: Vide Bracton fo. 61. b. and Fleta L. 2. c. 58.] A debt also arises by reason of a Purchase and Sale. When any person sells a thing to another, the price is due to the Vendor, and the thing contracted for to the Purchaser.[393] [Footnote 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.)] But a purchase and sale are effectually perfected from the moment the price is settled between the contracting parties; provided possession of the thing purchased and sold be delivered,[394] or that the price, either wholly, or in part, be paid, or, at least, that Earnest[395] be given and received.[396] [Footnote 394: _Quia sine traditione non transferuntur rerum dominia._ (Bracton 61. b.)] [Footnote 395: Arrhæ. In the Civil Law the _Arrha_ or Earnest was given, either simply as a symbol, or mark of the Contract, or, it was given, as Vinnius informs us, as a part of the price. In the former case the purchaser was not permitted to avoid the contract with the loss of his Earnest—in the latter, he was allowed to do so. The Vendor might recede with the loss of twice the value of it. (Dig. 18. 1. 35.—19. 1. 11. 6. Inst. 3. 24. pr.) With respect to the effect of _Earnest_, as our Law now stands, vide 2. Bl. Comm, 447.] [Footnote 396: When there is neither writing, Earnest, nor delivery, the parties, says Bracton, may retract. (61. b.)]