pose is to produce and maintain a moral and social condition of man, in which human actions are deliberate, rational and coherent, refuses its sanction and aid to such rash, irrational, and incoherent proceedings. Hence the Roman Law rejects Contracts in which there is no Cause or Consideration*: "Cum nulla subest causa propter conventionem, hic constat constitere non posse obligationem. Igitur nuda pactio obligationem non facit.” And the same is the case in the English Law: in which a Contract is defined†, "An agreement of two or more persons, upon sufficient Consideration, to do or not to do a particular thing" and the consideration is necessary to the validity of the Contract. 160. The Law, though it requires a Consideration on each side as a Contract, does not undertake to provide an equality of advantage to both; but is contented with any degree of reciprocity, leaving the force of the Consideration to be weighed by the contracting parties. Thus money paid is a valuable consideration: but a good consideration also is that of blood, or of natural love and affection, when a man grants an estate to a poor relation on motives of generosity, prudence, and natural duty. And as a Consideration is made necessary by the Law, in order to avoid the inconvenience of giving legal force to mere verbal promises, the Contract may be made in so solemn a manner that the Law will suppose a Consideration, though it be not expressed. This is the case in the English Law, when a man executes a bond under his seal. On the other hand, the Law will not recognize a Contract for which the Consideration is an illegal * Dig. 11. 14. 7. When there is no reason for the contract. there can be no obligation. Hence a nude pact does not estav lish an obligation. + Bl. II. 445. + Bl. II. 297 act. Thus the Roman Law*: "Pacta quæ causam turpem habent non sunt servanda." And the English Lawt recognizes a number of cases of this kind, as annulling Contracts. 161. Contracts are void also when made under violence and constraint. In such cases the person so constrained and compelled is, in the language of the Law, in Duress (Durities). The Law also recognizes Durities per minas, Fear arising from threats, as a circumstance which invalidates a contract made under its influence. But this fear must be of a serious kind; fear of loss of life, or of limb; and this upon sufficient reason; or, as an ancient English Law-writer expresses itt, "Non suspicio cujuslibet vani et meticulosi hominis, sed talis quæ possit cadere in hominem constantem.' A fear of being beaten, though ever so well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken away or destroyed; because, in these cases, a man may obtain redress; but no sufficient compensation can be made for loss of life or limb. 162. Contracts are also void, from the want of that free agency which the law requires, when the deficiency arises, not from violence or threats, but from the condition of the party as to age or understanding. Persons under the legal full age, called Minors or Infants by the Law, cannot make a valid Contract. By the English Law the Wife also is incapable of binding herself by Contract; her interests being supposed to be so inseparably bound up with those of her Husband, that she cannot act indepen *Dig. 11. 14, 17. Pacts for a shameful consideration are not to be enforced. + Kent's Com. 11. 466. Bracton. quoted Blackst. 11. 131. Not the suspicion of a light-minded and timorous person, but such as may fall upon a man of firm mind. dently of him. A Contract made by a person not having the use of Reason, non compos mentis, is void. The Contracts of Lunatics are void from the time when the Lunacy commences. It has also been settled by the English Law*, that a contract made by a man in a state of intoxication, if his state be such that he do not know the Consequences of his conduct, is void. Imbecility of Mind is not sufficient to set aside a Contract, when there is not an essential privation of Reason, or an incapacity of understanding and acting in the common affairs of life. 163. Contracts may be rendered void by Deception or Fraud practised on one side; but it is a matter of no small difficulty to lay down consistent Rules on this subject. The Roman Law, as we have seen (157), does not enforce Contracts which are made dolo malo. And this is further explained in the same placet: "Dolus malus fit calliditate et fallaciâ. Dolo malo pactum fit quoties circumscribendi alterius causâ aliud agitur et aliud agi simulatur." to lay down Rules on this subject when Contracts have been distinguished into different kinds. But it is easier 164. The Roman Jurists have divided Contracts, according to the Consideration, into four Kinds, expressed by the four Formula: Do ut des; Facio ut facias; Facio ut des ; Do ut Facias. The First ncludes Contracts of Buying and Selling, of Barter or Exchange, and Loans of Money: the Second includes Contracts of Commission, Partnership, and the ike the Third includes Contracts of Hiring and Service, as when a Servant or Workman engages to work for certain wages: the Fourth is the Counterpart of the Third, when one person Contracts to pay the other who serves or works. * Kent, II. 151. + Dig. 11. 14, 17. Fraud is the use of trick and deception. A pact is fraudulent when, for the purpose of circumventing some person, one thing is done and another simulated to be done. 165. The most common of these Contracts, in which there are familiar names for the correlative acts; Buying and Selling; a Commission given and taken; Letting and Hiring;-Venditio et Emptio, Mandatum, Locatio et Conductio; the Roman Jurists termed Contractus Nominati; all others, as Barter, were Contractus Innominati; and they laid down different Rules for the two Classes. Thus a Sale was valid, as soon as the price was agreed upon; re integrâ, that is, before payment or delivery. But in the innominate Contracts, re integrâ, the parties were allowed to retract. This dif ference was founded in the greater frequency and familiarity of the nominate Contracts, which made deliberation less necessary, and delay more inconvenient. But in Sales, in order to remove any doubt which might arise, as to whether the Sale was completed, the practice was sometimes adopted of giving Arrha, Earnest, a portion of the price; which, however small, made the Contract binding. Among the Northern Nations, shaking the parties' hands together had this efficacy; and a sale thus made was called handsale; whence handsel was also used for the earnest of the price*. In the same manner a symbolical delivery of the goods was introduced: as for instance, the delivery of the key of the warehouse in which they were contained. 166. Borrowing and Lending is a Contract, in which the Romans distinguished two different cases, which we confound under one term. Mutuum was applied to the lending of those things which are reckoned by number, weight, and measure; as wine, oil, corn, coined money, of which the borrower receives a stated quantity which he may use, consume, or part with. Commodatum was that which was lent, to be restored identically the same; as a book, a harp, ą Blackstone, 11. 448. horse. And the Law made a distinction in the responsibility of the borrower in these two cases. The person who had received a thing as commodatum, was bound indeed to keep it with as much care as if it were his own, or with more, if more were possible: yet if it were lost or destroyed by no fault of his, he was not bound to make compensation. But if he had received a thing as mutuum, it was to be repaid at any rate, in whatever way it had been consumed or lost*. Paleyt calls commodatum, inconsumable property. The other kind, consumable property, is also termed Res fungibiles by the Roman Law; for one portion can discharge the office of another. "Res ejus generis functionem recipere dicuntur; id est, restitui posse per quod genere idem est‡.' 167. Besides the Hiring of Labour, Locatio Operis faciendi, there is Locatio Rei, the Letting of a Thing to hire, as letting a house. In this case, also, the Hirer is bound to ordinary care and diligence, and is answerable for neglect: but the extent of his Obligations, as to Repairs and Expenses, must be settled by Express Rules of Law or Custom§. 168. When the Obligation of one party to pay Money to the other is established, and not yet performed, the money to be paid is a Debt, due from the Debtor to the Creditor. Hence Debt may arise out of any of the above kinds of Contract, as Sale, Hiring, and the like. 169. Among many forms of Debt, we may no * Inst. . 15. The principle of the distinction by which mutuum and commodatum are opposed, as to liability of risk in the case of loss, is the principle of ownership: Res perit domino, in case of innocent loss, is a universal rule. In mutuum the property is transferred to the Borrower: in commodatum it remains with the Lender. Therefore the loss in the first case falls on the Borrower, in the second on the Lender. + Moral Phil. B. III. c. 3. Grot. B. et P. 11. 10. 13. § Sir W. Jones, On Bailment, classes the scale of liabilities. VOL. I.-L |