Title Company As Trustee In Breach
Of Fiduciary Duty
Settlement Signifies A Payment In
Full
The Transaction Was Closed,
Settled And Canceled
What exactly was borrowed?
Where is the thing borrowed?
Who has custody of the thing
borrowed?
Injuria propria non cadet in
beneficium facientis defined: One's own wrong shall not fall to the advantage
of him that does it. A man will not be allowed to derive benefit from his own
wrongful act. Black’s Law Dictionary Sixth Edition (page 785)
Injuria servi dominum pertingit
defined: The master is liable for injury done by his servant. Black’s Law
Dictionary Sixth Edition (page 785)
Whereas defined pursuant to:
Immunity from attachment and execution of property of a foreign state: Subject
to existing international agreements to which the United States is a party at
the time of enactment of this Act the property in the United States of a
foreign state shall be immune from attachment arrest and execution except as
provided in sections 1610 and 1611 of this chapter.
IN KIND defined: Of the same
species or category. In the same kind, class, or genus. A loan is returned
"in kind" when not the identical article, but one corresponding and
equivalent to it, is given to the lender. See Distribution in kind; In genere;
Like-kind exchange. Black’s Law Dictionary Sixth Edition (page 787)
IN GENERE defined: In kind; in the
same genus 01' class; the same in quantity and quality, but not individually
the same. For example, laws on the same subject. See In pari materia. In the
Roman law, things which may be given or restored in genere are distinguished
from such as must be given or restored in specie; that is, identically. Black’s
Law Dictionary Sixth Edition (page 781)
BORROW defined: v. bor·rowed,
bor·row·ing, bor·rows v.tr. 1. To obtain or receive (something) on loan with
the promise or understanding of returning it or its equivalent. The American
Heritage® Dictionary of the English Language, Fourth Edition
BORROWER defined: contracts. He to
whom a thing is lent at his request.2. The contract of loan confers rights, and
imposes duties on the borrower' 1. In general, he has the right to use the
thing borrowed, during the time and for the purpose intended between the
parties; the right of using the thing bailed, is strictly confined to the use,
expressed or implied, in the particular transaction, and by any excess, the
borrower will make himself responsible. Jones' Bailment, 58 6 Mass. R. 104;
Cro. Jac. 244; 2 Ld. Raym. 909; Ayl. Pand. B. 4, t. 16, p. 517; Domat, B. 1, t.
5, Sec. 2, n. 10, 11, 12; Dio. 13, 6, 18 Poth. Pret a Usage, c. 2, Sec. 1, n.
22; 2 Bulst. 306; Ersk. Pr. Laws of ScotI. B. 3, t. 1, Sec. 9; 1 Const. Rep.
So. Car. 121 Bracton, Lib. 3, c. 2, Sec. l, p. 99. The loan is considered
strictly personal, unless, from other circumstances, a different intention may
be presumed. 1 Mod. Rep. 210; S. C. 3
Salk. 271. 3. - 2. The borrower is bound to take extraordinary care of the
thing borrowed; to use it according to the intention of the lender, to restore
it in proper time; to restore it in a proper condition. Of these, in their
order. 4. - 1. The loan being gratuitous, the borrower is bound to
extraordinary diligence, and is responsible for slight neglect in relation to
the thing loaned. 2 Ld. Raym. 909, 916 Jones on Bailm. 65; 1 Dane's Abr. c. 17,
art. 12; Dig. 44, 73 1, 4; Poth. Pret. a Usage, c. 2, Sec. 2, art. 21, n. 48.
5. - 2. The use is to be according to the condition of the loan; if there is an
excess in the nature, time, manner, or quantity of the use, beyond what may be
inferred to be within the intention of the parties, the borrower will be
responsible, not only for any damages occasioned by the excess, but even for
losses by accidents, which could not be foreseen or guarded against. 2 Ld.
Raym. 909; Jones on Bailm. 68, 69. 6. - 3. The borrower is bound to make a
return of the thing loaned, at the time, in the place, and in the manner
contemplated by the contract.. Domat, Liv. 1, t. 5, Sec. 1, n. 11; Dig. 13, 6,
5, 17. If the borrower does not return the thing at the proper time, he is
deemed to be in default, and is generally responsible for all injuries, even
for accidents. Jones on Bailm. 70; Pothier, Pret a Usage , ch. 2, Sec. 3, art.
2, n. 60; Civil Code Of Louis. art. 2870; Code Civil, art. 1881; Ersk. Inst. B.
3, t. 1, Sec. 22 Ersk. Pr. Laws of Scotl. B. 3, t. 1, Sec. 9. 7. - 4. As to the
condition in which the thing is to be restored. The borrower not being liable
for any loss or deterioration of the thing, unless caused by his own neglect of
duty, it follows, that it is sufficient if he returns it in the proper manner,
and at the proper time, however much it may be deteriorated from accidental or
other causes, not connected with any such neglect. Story on Bailm. eh. 4, Sec.
268. See, generally, Story on Bailm. oh. 4; Poth. Pret A Usage; 2 Kent, Com.
446-449; Vin. Abr. Bailment, B 6; Bac. Abr. Bailment; Civil Code of Louis. art.
2869-2876; 1 Bouv. Inst. n. 1078-1090. Vide Lender. A Law Dictionary Adapted To
The Constitution and Laws of the United States of America and of the Several
States of the American Union by John Bouvier Revised Sixth Edition, 1856
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