90 CHAPTER IV. THE RIGHTS OF CONTRACT. 157. We have already (50) spoken of the necessity of mutual understanding and mutual dependence among men; and the consequent necessity of the fulfilment of Promises, as one of the principal bonds of Society. The necessity of depending upon assurances made by other men, gives birth to a Right in the person to whom the assurances are made. A person has, under due conditions, a Right to the fulfilment of a Promise. The Law realizes this Right, and must therefore define the conditions. The mutual assurances, which the Law undertakes to enforce, are called Contracts. In the language of the Roman Law, the Judge is made to say*, "Pacta Conventa quæ neque dolo malo, neque adversus leges, plebiscita, Senatus consulta, edicta Principum, neque quo fraus cui rerum fiat, facta erunt, servabo." 158. The Law, which enforces Contracts, must determine what Promises are valid Contracts. To show the necessity of recurring to actual Law on this subject, we may remark how vague, arbitrary, and inconvenient are the maxims on this point, which Jurists have attempted to draw from the nature of the case. Thus it has been asserted†, that of the three ways of speaking of the future: I intend to give you I shall give you: I promise you: the two former do not give a Right to the person addressed; but the third does. It is evident that this distinction is as arbitrary as any merely legal one can be: and if such rules are arbitrary, they must be established as a matter of fact, not of reasoning: that is, they must be established by actual Laws. * Dig. 11. 14, 17. I will enforce Pacts and Contracts which are made in conformity with the Laws, the Decrees of the People and of the Senate, the Edicts of the Emperor, in good faith, and with no fraudulent design. ↑ Grot. B. et P. II. 11. 2. 159. But according to the Roman Law, even the last formula, I promise you, did not convey a Right. It was called a bare Promise, Nudum Pactum; as not being clothed with the circumstances of mutual advantage and formal act, which are requisite to a valid engagement. In thus refusing to recognize a bare Promise as creating a Right, the Law proceeds with a due regard to the gravity of Rights. Relations so important must be brought into being only by acts of a calm and deliberate kind. If a verbal promise, however hasty, informal, and destitute of reasonable motive, were to be sanctioned as creating a Right, the Law must carry into effect the most extravagant proposals of gamesters; as for instance, when a man stakes the whole of his fortune on the turn of a die: for the meaning of such an act is, "I promise to give you so much, if the cast is so." But the Law, whose purpose 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 * Dig. 11. 14. 7. When there is no reason for the contract, there can be no obligation. Hence a nude pact does not establish an obligation. + Bl. 11. 445. 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 act. Thus the Roman Lawt: "Pacta quæ causam turpem habent Law†: non sunt servanda." And the English Law 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 it§, "Non suspicio cujuslibet vani et meticulosi hominis, sed talis quæ possit cadere in hominem constantem." A fear of being beaten, though * Bl. II. 297. enforced. Pacts for a shameful consideration are not to be Kent's Com., II. 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. 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 independently 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 place† : "Dolus malus fit calliditate et fallaciâ. • 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. Dolo malo pactum fit quoties circumscribendi alterius causâ aliud agitur et aliud agi simulatur.” But it is easier to lay down Rules on this subject when Contracts have been distinguished into different kinds. 164. The Roman Jurists have divided Contracts, according to the Consideration, into four Kinds, expressed by the four Formulæ : Do ut des; Facio ut facias; Facio ut des; Do ut facias. The First includes Contracts of Buying and Selling, of Barter or Exchange, and Loans of Money: the Second includes Contracts of Commission, Partnership, and the like 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. 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 integra, the parties were allowed to retract. This difference 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 |