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The case of erroneous promises is attended with some difficulty : for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude, which might evacuate the force of almost all promises : and, on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would; in many instances, be productive of great hardship and absurdity.
It has long been controverted amongst moralists, whether promises be binding which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this; whether mankind, upon the whole, are benefited by the confidence placed on such promises ?---A highwayman attacks you—and being disappointed of his booty, threatens or prepares to murder you ;- you promise; with many solemn asseverations, that if he will spare your life, he shall find a purse of money left for him at a place appointed :-upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these, greatly facilitates the perpetration of robberies : they may be made the instruments of almost unlimited extortion. This is a bad consequence: and in the question between the importance of these opposite consequences, resides the doubt concerning the obligation of such promises.
There are other cases which are plainer; as where a magistrate confines a disturber of the public peace in gaol, till he promise to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just; but the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty.
Vows are promises to God. The obligation cannot be made out upon the same principle as that of other promises. The violation of them, nevertheless, implies a want of reverence to the Supreme Being; which is enough to make it sinful.
There appears no command or encouragement in the Christian Scriptures to make vows; much less any authority to break through them when they are made. The few instances * of vows which we read of in the New Testament were religiously observed.
The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding; because the performance, in that contingency, became unlawful.
CONTRACTS. A CONTRACT is a mutual promise. The obligation therefore of contracts, the sense in which they are to be interpreted, and the cases where they are not binding, will be the same as of promises.
From the principle established in the last chapter, " that the obligation of promises is to be measured by the expectation which the promiser any how voluntarily and knowingly excites,” results a rule which governs the construction of all contracts, and is capa
* Acts, xviii. 18; xxi. 23.
ble, from its simplicity, of being applied with great ease and certainty, viz. That
Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract.
The several kinds of contracts, and the order in which we propose to consider them, may be exhibited at one view, thus :
s Inconsumable property. Contracts of
J Lending of Money.
Labour :: Partnership.
- CHAP. VII.
CONTRACTS OF SALE. The rule of justice which wants with most anxiety to be inculcated in the making of bargains, is, that the seller is bound in conscience to disclose 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 some 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 gets 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.
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 sometimes 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, that 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 scruple about demanding or taking the market price; and all those expressions, “ provisions are extravagantly dear,” “corn bears an unreasonable price,” and the like, import no unfairness or unreasonableness in the seller.
If your tailor 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 customers 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 syllable 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 imputation 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 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 chinaman ask me to what place he shall bring or send them, 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
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