but the motive in these two cafes is the fame, viz. to procure a higher price than we expect otherwife to obtain the effect, that is, the prejudice to the buyer, is alfo the fame; 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 fuppofed, by the want of fome quality which he had expected, or the difcovery of fome fault which he did not expect. If therefore actions be the fame as to all moral purposes, which proceed from the fame motives, and produce the fame 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 fell, but none to conceal its faults.

It adds to the value of this kind of honefty, that the faults of many things are of a nature not to be known by any, but by the perfons who have used them: fo that the buyer has no fecurity from impofition, but in the ingenuoufnefs and integrity of the feller.

There is one exception, however, to this rule, namely, where the filence of the feller implies fome fault in the thing to be fold, and where the buyer has a compenfation in the price for the rifk which he runs as where a horse, in a London repofitory, is fold by public auction, without warranty; the want of warranty is notice of fome unfoundnefs, and produces a proportionable abatement in the price.

To this of concealing the faults of what we want to put off, may be referred the practice of paffing bad money. This practice we fometimes hear defended by a vulgar excufe, that we have taken the money for good, and must therefore get rid of it. Which excufe is much the fame, as if one, who had been robbed upon the highway, fhould allege he had a right to reimburfe himfelf out of the pocket of the first traveller he met; the juftice of

which reasoning the traveller poffibly may not comprehend.

Where there exifts 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 fcruple about demanding or taking the market price; and all thofe expreffions, "provifions are extravagantly "dear," "corn bears an unreasonable price," and the like, import no unfairness or unreafonableness in the feller.

If your taylor or your draper, charge, or even afk of you more for a fuit of clothes, than the marked price, you complain that you are imposed upon; you pronounce the tradefman who makes fuch a charge difhoneft: although, as the man's goods were his own, and he had a right to prescribe the terms, upon which he would confent to part with them, it may be queftioned what difhonesty there can be in the cafe, or wherein the impofition confifts. Whoever opens a fhop, or in any manner expofes goods to public fale, virtually engages to deal with his customers at a market price; because it is upon the faith and opinion of fuch an engagement, that any one comes within his fhop doors, or offers to treat with him. This is expect ed by the buyer; is known to be fo expected by the feller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a fyllable be faid about it. The breach of this implied contract constitutes the fraud inquired after.

Hence, if you difclaim any fuch engagement, you may fet what value you please upon your property. If, upon being asked to fell a houfe, you anfwer that the houfe fuits your fancy or conveniency, and that you will not turn yourself out of it, under fuch a price; the price fixed may be double of what the house coft, or would fetch at a public

fale,

fale, without any imputation of injustice or extortion upon you.

If the thing fold be damaged, or perifh, between the fale and the delivery, ought the buyer to bear the lofs, or the feller? This will depend upon the particular conftruction of the contract. If the feller, either exprefsly, or by implication, or by custom, engage to deliver the goods; as if I buy a fet of china, and the china-man ask me whither he fhall bring or fend them to, and they are broken in the conveyance; the feller must abide by the loss. If the thing fold remain with the feller, at the inftance, or for the conveniency of the buyer, then the buyer undertakes the rifk; as if I buy a horse, and mention, that I will fend for it on fuch a day, which is in effect defiring that it may continue with the feller till I do fend for it; then, whatever misfortune befalls the horse in the mean time, must be at my coft.

And here, once for all, I would obferve, that innumerable queftions of this fort are determined folely by custom; not that cuftom poffeffes any proper authority to alter or afcertain the nature of right and wrong; but because the contracting parties are prefumed to include in their ftipulation, all the conditions which custom has annexed to contracts of the fame fort; and when the ufage is notorious, and no exception made to it, this prefumption is generally agreeable to the fact.*

If I order a pipe of port from a wine merchant abroad; at what period the property paffes from

*It happens here, as in many cafes, 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 confciousness, at the time of making it: whereas a third perfon finds it neceffary to found his judgmen: upon prefumptions, which prefumptions may be falfe, although the most profitable that he could proeeed by.

the merchant to me; whether upon delivery of the wine at the merchant's warehoufe; upon its being put on fhipboard at Oporto; upon the arrival of the fhip in England; at its deftined port; or not till the wine be committed to my fervants, or depofited in my cellar, are all queftions, which admit of no decifion, but what cuftom points out. Whence, in juftice, as well as law, what is called the custom of merchants, regulates the conftruction of mercantile concerns.

CHAP. VIII.

B

CONTRACTS

OF

HAZAR D.

Y Contracts of Hazard, I mean gaming and infurance.

What fome fay of this kind of contracts," that one fide 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 feldom to be inet 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 horfe race; or underwrite a policy of insurance, once in a twelvemonth; if I muft wait till I meet with a perfon, whofe art, fkill, and judgment, in these matters, is neither greater nor lefs than my own. Nor is this equality requifite to the juftice of the contract. One party may give to the other the whole of the ftake, if he pleafe, and the other party may juftly accept it, if it be given him;

much

much more therefore may one give to the other a part of the ftake; or, what is exactly the fame thing, an advantage in the chance of winning the whole.

The proper reftriction is, that neither fide 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 ftill an uncertainty, your advantage in the chance has a certain value; and fo much of the ftake, as that value amounts to, is taken from your adverfary without his knowledge, and therefore without his confent. If I fit down to a game at whift, and have an advantage over the adverfary, by means of a better memory, clofer attention, or a fuperior knowledge of the rules and chances of the game, the advantage is fair; because it is obtained by means of which the adverfary is aware; for he is aware, when he fits down with me, that I fhall exert the skill. that I poffefs, to the utmoft, But if I gain an advantage by packing the cards, glancing my eye into the adverfaries hands, or by concerted fignals with my partner, it is a difhoneft advantage; because it depends upon means, which the adverfary never fufpects that I make use of

The fame diftinction 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 horse, I am juftly entitled to any advantage which my judgment gives me; but, if I carry on a clandeftine correfpondence with the jockies, and find out from them, that a trial has been actually made, or that it is fettled before-hand which horfe fhall win the race; all fuch information is fo much fraud, becaufe derived from fources, which the other did not fufpect, when he proposed or accepted the wager.