vote;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it: then B is the promisee.

Promises to one person, for the benefit of another, are not released by the death of the promisee: for, his death neither makes the performance impracticable, nor implies any consent to release the promiser from it.

6. Erroneous promises are not binding in certain cases; as,

1. Where the error proceeds from the mistake or misrepresentation of the promisee. Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity, by a story of the most pitiable distress; you promise to relieve him, if he will call again :-In the interval you discover his story to be made up of lies; this discovery, no doubt, releases you from your promise. One who wants your service, describes the business or office for which he would engage you ;—you promise to undertake it ;-when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you :—In such case, you are not bound by your promise.

2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son ;-soon after which, he promises his fortune to his nephew. The account turns out to be false.-The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the case, for that alone will not do ;—but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least, his uncle thought he so understood it; and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and, as he believed, in the apprehension of both parties; and this belief of his, is the precise circumstance which sets him free. The foundation of the rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition therefore he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote;-presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out. But the promisee did not know this; he did not receive the promise subject to any such condition, or as proceeding from any such opposition ;-nor did I at the time imagine he so received it. This error, therefore, of mine, must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain fortune with his daughter, supposing himself to be worth so much his circumstances turn out, upon examination, worse than he was aware of. Here again the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory.

The case of erroneous promises, is attended with some difficulty: for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude, which might evacuate the force of almost all promises and on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdity.

It has long been controverted among moralists, whether promises be binding, which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this; whether mankind, upon the whole, are benefited by the confidence placed on such promises? A highwayman attacks you-and being disappointed of his booty, threatens or prepares to murder you ;-you

promise, with many solemn asseverations, that if he will spare your life, he shall find a purse of money left for him, at a place appointed ;-upon the faith of this promise, he forbears from farther violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these, greatly facilitates the perpetration of robberies: they may be made the instruments of almost unlimited extortion. This is a bad consequence: and in the question between the importance of these opposite consequences, resides the doubt concerning the obligations of such promises.

There are other cases which are plainer; as where a magistrate confines a disturber of the public peace in jail, till he promise to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just; but the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty.

Vows are promises to God. The obligation cannot be made out upon the same principle as that of other promises. The violation of them, nevertheless, implies a want of reverence to the Supreme Being; which is enough to make it sinful.

There appears no command or encouragement in the Christian Scriptures to make vows; much less any authority to break through them when they are made. The few instances of vows which we read of in the New Testament, were religiously observed.

The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding; because the performance, in that contingency, became unlawful.

CHAPTER VI.

CONTRACTS.

A CONTRACT is a mutual promise. The obligation therefore of contracts, the sense in which they are to be interpreted, and the cases where they are not binding, will be the same as of promises.

From the principle established in the last chapter," that the obligation of promises is to be measured by the expectation which the promiser any how voluntarily and knowingly excites," results a rule, which governs the construction of all contracts, and is capable, from its simplicity, of being applied with great ease and certainty, viz. That

Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract.

The several kinds of contracts, and the order in which we propose to consider them, may be exhibited at one view, thus :

CHAPTER VII.

CONTRACTS OF SALE.

THE rule of justice, which wants with most anxiety to be inculcated in the making of bargains, is, that the seller is bound in conscience to disclose the faults of what he offers to sale. Amongst other methods of proving this, one may be the following:

I suppose it will be allowed, that to advance a direct falsehood, in recommendation of our wares, by ascribing to them some quality which we know that they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know that they have. The motives and the effects of actions are the only points of comparison, in which their moral quality can differ: but the motive in these two cases is the same, viz. to procure a higher price than we expect otherwise to obtain: the effect, that is, the prejudice to the buyer, is also the same; for he finds himself equally out of pocket by his bargain, whether the commodity, when he gets home with it, turn out worse than he had supposed, by the want of some quality which he expected, or the discovery of some fault which he did not expect. If therefore actions be the same, as to all moral purposes, which proceed from the same motives, and produce the same effects; it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but none to conceal its faults.

It adds to the value of this kind of honesty, that the faults of many things are of a nature not to be known by any, but by the persons who have used them; so that the buyer has no security from imposition, but in the ingenuousness and integrity of the seller *.

There is one exception however to this rule; namely, where the silence of the seller implies some fault in the thing to be sold, and where the buyer has a compensation in the price for the risk which he runs: as where a horse, in a London repository, is sold by public auction, without warranty; the want of warranty is notice of some unsoundness, and produces a proportionable abatement in the price.

To this act of concealing the faults of what we want to put off, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one, who had been robbed upon the highway, should allege that he had a right to reimburse himself out of the pocket of the first traveller he met; the justice of which reasoning, the traveller possibly may not comprehend.

Where there exists no monopoly or combination, the market-price is always a fair price; because it will always be proportionable to the use and scarcity of the article. Hence, there need be no scruple about demanding or taking the market-price; and all those expressions, "Provisions are extravagantly dear," "Corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.

If your tailor or your draper charge or even ask of you, more for a suit of clothes, than the market-price, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge dishonest: although, as the man's goods were his own, and he had a right to prescribe the terms upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to

The law of England will not enforce the completion of any sale effected by either fraud, or concealment of hidden defects, and even declared a bill, or check given for the amount of such sale, void in the hands of such fraudulent vendor. Lewis v. Cotsgrove, 2 Taunton's Reports, 2 Mills v. Oddy, 5 Tyrwhitt's Rep. 571; neither

will the law enforce any fraudulent purchases; and if brokers, or other persons, agree not to bid against each other at an auction, but to divide the purchased lots, they may be indicted for a conspiracy.-Levi v. Levi, 6 Carrington and Payne's Reports, 239.-ED.

deal with his customers at a market price; because it is upon the faith and opinion of such an engagement that any one comes within his shop-doors, or offers to treat with him. This is expected by the buyer; is known to be so expected by the seller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a syllable be said about it. The breach of this implied contract constitutes the fraud inquired after.

Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fancy or conveniency, and that you will not turn yourself out of it, under such a price; the price fixed may be double of what the house cost, or would fetch at a public sale, without any imputation of injustice or extortion upon you.

If the thing sold, be damaged or perished, between the sale and the delivery, ought thè buyer to bear the loss or the seller? This will depend upon the particular construction of the contract. If the seller, either expressly, or by implication, or by custom, engage tó deliver the goods; as if I buy a set of china, and the china-man ask me to what place he shall bring or send them, and they be broken in the conveyance, the seller must abide by the loss. If the thing sold, remain with the seller, at the instance, or for the conveniency of the buyer, then the buyer undertakes the risk as if I buy a horse, and mention that I will send for it on such a day (which is in effect desiring that it may continue with the seller till I do send for it), then whatever misfortune befals the horse in the mean time, must be at my cost.

And here, once for all, I would observe, that innumerable questions of this sort are determined solely by custom; not that custom possesses any proper authority to alter or ascertain the nature of right and wrong; but because the contracting parties are presumed to include in their stipulation, all the conditions which custom has annexed to contracts of the same sort and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact *.

If I order a pipe of port from a wine-merchant abroad: at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto; upon the arrival of the ship in England; at its destined port; or not till the wine be committed to my servants, or deposited in my cellar; are all questions which admit of no decision, but what custom points out. Whence, in justice, as well as law, what is called the custom of merchants, regulates the construction of mercantile concerns †.

It happens here, as in many cases, that what the parties ought to do, and what a judge or arbitrator would award to be done, may be very different. What the parties ought to do by virtue of their contract, depends upon their consciousness at the time of making it; whereas a third person finds it necessary to found his judgment upon presumptions, which presumptions may be false, although the most probable that he could proceed by.

+ Much curious learning upon the subject discussed by Paley in this chapter, is to be found in our law authorities under the title of "Bailments," a term derived from the French bailler, to deliver. The custom, or law of merchants (Lex Mercatoria), mentioned in the text, is held to be part of the law of England, at least it is recognized here as being that which decides the causes of merchants by the general rules which obtain in all commercial countries. The lex mercatoria is necessarily distinct from the national laws of any particular country, for mercantile transactions are carried on between the subjects of independent states, and the municipal laws of one state are not regarded by the subjects of another. (Blackstone's Comment., i. 273.) If further information is desired in answer to the question, whether a vendor is morally bound to acquaint a person desirous of purchasing with the defects of the subject of contract? the following works may be

consulted: Grotius de Jure Belli ac Pacis ; and Puffendorf de Jure Naturæ et Gentium, and his treatise De Officiis. Our law, as far as is practicable, coincides with the precept of morality laid down by Paley. Thus if a vendor knows that there is a defect in his estate which could not be dis covered by the most careful purchaser, he is bound to dis close it, although the estate is sold expressly subject to all its faults. Those, however, who would have equity must do equity, therefore the purchaser of an estate which he afterwards finds to be defective, shall have no relief if he misrepresented the estate, whilst it was for sale, to any person who was desirous to purchase it. (Atkyns's Reports, ii. 371.) If the vendor industriously conceals a defect in the thing sold, and prevents, during the treaty, the purchaser from seeing such defect, it has been decided that he can have no relief in equity, and it is conceived that he could not enforce the contract in a court of law.

On the other hand, our courts of justice require that a purchaser should use common precaution and common sense in effecting his bargain; therefore, if the defect in the thing purchased is so obvious that moderate vigilance must have noticed it, the improvident purchaser can obtain no remedy, for it is an ancient maxim of our law, Vigilantibus, non dormientibus, jura subveniunt.-ED.

CHAPTER VIII.

CONTRACTS OF HAZARD.

By Contracts of Hazard, I mean gaming and insurance.

What some say of this kind of contracts, "that one side ought not to have any advantage over the other," is neither practicable nor true. It is not practicable; for that perfect equality of skill and judgment, which this rule requires, is seldom to be met with. I might not have it in my power to play with fairness a game at cards, billiards, or tennis; lay a wager at a horse-race; or underwrite a policy of insurance, once in a twelvemonth, if I must wait till I meet with a person, whose art, skill, and judgment, in these matters, is neither greater nor less than my own. Nor is this equality requisite to the justice of the contract. One party may give to the other the whole of the stake, if he please, and the other party may justly accept it, if it be given him; much more therefore may one give to the other a part of the stake; or, what is exactly the same thing, an advantage in the chance of winning the whole.

The proper restriction is, that neither side have an advantage by means of which the other is not aware; for this is an advantage taken, without being given. Although the event be still an uncertainty, your advantage in the chance has a certain value; and so much of the stake, as that value amounts to, is taken from your adversary without his knowledge, and therefore without his consent. If I sit down to a game at whist, and have an advantage over the adversary by means of a better memory, closer attention, or a superior knowledge of the rules and chances of the game, the advantage is fair; because it was obtained by means of which the adversary is aware: for he is aware, when he sits down with me, that I shall exert the skill that I possess to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adversaries' hands, or by concerted signals with my partner, it is a dishonest advantage; because it depends upon means which the adversary never suspects that I make use of.

The same distinction holds of all contracts into which chance enters. If I lay a wager at a horse-race, founded upon the conjecture I form from the appearance, and character, and breed, of the horses, I am justly entitled to any advantage which my judgment gives me: but, if I carry on a clandestine correspondence with the jockeys, and find out from them, that a trial has been actually made, or that it is settled beforehand which horse shall win the race; all such information is so much fraud, because derived from sources which the other did not suspect, when he proposed or accepted the wager.

In speculations in trade, or in the stocks, If I exercise my judgment upon the general aspect and prospect of public affairs, and deal with a person who conducts himself by the same sort of judgment; the contract has all the equality in it which is necessary: but if I have access to secrets of state at home, or private advice of some decisive measure or event abroad, I cannot avail myself of these advantages with justice, because they are excluded by the contract, which proceeded upon the supposition that I had no such advantage.

In insurances, in which the underwriter computes his risk entirely from the account given by the person insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete *.

* Very full and interesting information relative to insurances may be found in a work written upon the subject by Mr. Justice Park. It is a general opinion that the contents of legal publications are invariably dull and uninteresting, but the editor, from some years' experience, assures his readers, that no mind that delights in logical reasoning, the just discrimination of right, and the ceti

mate due to varying evidence, can rise from the perusal of our law authorities ungratified. The erroneous opinion alluded to, chiefly arises from a deficiency of knowledge of legal phraseology, and is consequently unjust. Every science, every art, has its peculiar nomenclature, its parti cular terms, which if not understood, render its details unintelligible jargon; yet it would be a very unjust con