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CH A P. VII.
CONTRACTS OF SALE.
THE rule of justice, which wants most to
I be inculcated in the making of bargains, is, that the seller is bound in conscience to difclose 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 '. fome 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 get3 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. VOL. I. - L
To this of concealing the faults of what we : want to put off, may be referred the practice of passing bad money. This practice we some-. times 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 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 fcruple about demanding or taking the market price; and all those expressions, “ pro“ visions are extravagantly dear," "corn bears “ an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.
If your taylor 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 deal with his cuftomers 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 fyllable 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 impum tation of injustice or extortion upon you.
If the thing sold be damaged, or perish, between the sale and the delivery, ought the buyer to bear the loss, or the seller ? This will depend L2
upon the particular construction of the contract. If the seller, either expressly, or by implication, or by custom, engage to deliver the goods; as if I buy a set of china, and the china-man ask me whither he shall bring or fend them to, 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 defiring that it may continue with the seller till I do fend for it; then, whatever misfortune befalls the horse in the mean time, must be at my cost.
And here, once for all, I would observe, that innumerable questions of this fort 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 fiipulation, all the conditions which custom has annexed to contracis of the same fort; and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact. *
* It happens here, as in many cases, that what the parties ought to do, and what a judge or arbitrator would award to