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If I order a pipe of port from a wine merchant abroad ; at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse ; upon its being put on shipboard at Oporto; upon the arrival of the ship in England ; at its destined port; or nut till the wine be, committed to my servants, or deposited in my cellar; are all questions, which admit of no decision, but what custom points out. Whence, in justice, as well as law, what is called the custom of merchants, regulates the construction of mercantile concerns.
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 necessary to found his judgment upon presumptions, which presumptions may be false, although the most probable that he could proceed by.
CH A P. VIII.
CONTRACTS OF HAZARD.
R Y Contracts of Hazard, I mean gaming and D insurance.
What some say of this kind of contracts, " that one side 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 seldom 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 person, whose art, skill, 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 inay give to the other the whole of the stake, if he please, and the other party may justly accept it, if it be given him ; much more therefore may one give to the other a part of the stake; or, what is exactly the same thing, an advantage in the chance of winning the whole.
The proper restriction is, that neither side 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 still an uncertainty, your advantage in the chance has a certain value ; and so much of the stake, as that value amounts to, is taken from your adversary without his knowledge, and therefore without his consent. If I sit down to a game at whist, and have an advantage over the adversary, by means of a better memory, closer attention, or a superior knowledge of the rules and chances of the game, the advantage is fair ; because it is obtained by means of which the adversary is aware ; for he is aware, when he sits down with ine, that I shall exert the skill that I possess, to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adversaries hands, or by concerted signals with my partner, it is a dishonest advantage ; because it depends upon means, which the adversary never suspects that I make use of.
The same distinction holds of all contracts, into which chance enters. If I lay a wager at a horse race, founded upon the conjeture I form from the appearance, and character, and breed of the horse, I am justly entitled to any advantage which my judgment gives me ; but, if I carry on a clandestine correspondence with the jockies, and find out from them, that a trial has been actually made, or that it is settled before-hand which horse shall win the race; all such information is so much fraud, because derived from sources, which the other did not suspect, when he proposed or accepted the wager.
In speculations in trade, or in the stocks, if I exercise my judgment upon the general afpect and posture of public affairs, and deal with a person who conducts himself by the fame sort of judgment; the contract has all the equality in it which is necessary: but, if I have access to secrets of state at home, or private advice of some decisive measure or event abroad, I cannot avail myself of these advantages with justice, because they are excluded by the contract, which proceeded upon the supposition, that I had no such advantage.