Imágenes de páginas
PDF
EPUB

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 fome-. times 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 reimburse himself 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 fcarcity of the article. Hence, there need be no fcruple about demanding or taking the market price; and all thofe expreffions, "pro"vifions are extravagantly dear," (6 corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the feller.

If your taylor or your draper charge, or even afk of you more for a fuit of clothes, than the market price, you complain that you are impofed upon; you pronounce the tradesman who makes fuch 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 confent

be queftioned

confent to part with them, it may what dishonesty there can be in the cafe, or wherein the impofition confifts. Whoever opens a shop, or in any manner exposes goods to public fale, virtually engages to deal with his cuftomers 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 expected by the buyer; is known to be so 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 disclaim any fuch engagement, you may fet what value you please upon your property. If, upon being asked to fell a house, you answer that the house fuits your fancy or conveniency, and that you will not turn yourfelf 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, without any imputation of injustice or extortion upon you.

If the thing fold be damaged, or perish, between the fale and the delivery, ought the buyer to bear the lofs, or the feller? This will depend

[blocks in formation]

upon the particular conftruction of the contract. If the feller, either exprefsly, or by implication, or by cuftom, engage to deliver the goods; as if I buy a fet of china, and the china-man afk me whither he fhall bring or fend them to, and they be broken in the conveyance; the feller muft abide by the lofs. If the thing fold remain with the feller, at the instance, 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 cost.

And here, once for all, I would observe, 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 flipulation, all the conditions which cuftom 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

*It happens here, as in many cafes, that what the parties. ought to do, and what a judge or arbitrator would award to

be

If I order a pipe of port from a wine merchant abroad; at what period the property paffes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse ; 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 deposited in my cellar; are all queftions, which admit of no decifion, but what custom points out. Whence, in justice, as well as law, what is called the custom of merchants, regulates the construction of mercantile con

cerns.

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 neceffary to found his judgment upon presumptions, which prefumptions may be falfe, although the most probable that he could proceed by.

[blocks in formation]

CHAP. VIII.

CONTRACTS OF HAZARD.

BY 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 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 perfon, whofe art, fkill, 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 juftly ac

cept

« AnteriorContinuar »