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send for it on such a day (which is in effect desiring that it may continue with the seller till I do send 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 sort 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 stipulation all the conditions which custom has annexed to contracts of the same sort: and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact”. 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 not 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.
CONTRACTS OF HAZARD.
By Contracts of Hazard, I mean gaming and insurance. What say some 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 may 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 me 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 adversary's 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 conjecture I form from the appearance and character and breed of the horses, I am justly entitled to any advantage which my judgment gives me: but, if I carry on a clandestine correspondence with the jockeys, and find out from them, that a trial has been actually made, or that it is settled beforehand 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.
* It happens here, as in many cases, 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 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.
In speculations in trade or in the stocks, if I exercise my judgment upon the general aspect and prospect of public affairs, and deal with a person who conducts himself by the same 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.
In insurances, in which the underwriter computes his risk entirely from the account given by the person insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete.
CONTRACTS OF LENDING OF IN CONSUMA BLE PROPERTY.
WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconsumable; in opposition to corn, wine, money, and those things which perish, or are parted with, in the use, and can therefore only be restored in kind. The questions under this head are few and simple. The first is, if the thing lent be lost or damaged, who ought to bear the loss or damage? If it be damaged by the use, or by accident in the use, for which it was lent, the lender ought to bear it; as if I hire a jobcoach, the wear, tear, and soiling of the coach must belong to the lender; or a horse to go a particular journey, and in going the proposed journey the horse die or be lamed, the loss must be the lender's : on the contrary, if the damage be occasioned by the fault of the borrower, or by accident in some use for which it was not lent, then the borrower must make it good; as if the coach be overturned or broken to pieces by the carelessness of your coachman; or the horse be hired to take a morning's ride upon, and you go a hunting with him, or leap him over hedges, or put him into your cart or carriage, and he be strained, or staked, or galled, or accidentally hurt, or drop down dead whilst you are thus using him, you must make satisfaction to the owner. The two cases are distinguished by this circumstance: that in one case the owner foresees the damage or risk, and therefore consents to undertake it; in the other case he does not. It is possible that an estate or a house may, during the term of a lease, be so increased or diminished in its value, as to become worth much more or much less than the rent agreed to be paid for it. In some of which cases it may be doubted to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: If the alteration might be expected by the parties, the hirer must take the consequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy may this year yield nothing, or next to nothing, yet the tenant shall pay his rent; and if the next year produce tenfold the usual profit, no more shall be demanded; because the produce is in its nature precarious, and this variation might be expected. If an estate in the fens of Lincolnshire, or the Isle of Ely, be overflowed with water so as to be incapable of occupation, the tenant, notwithstanding, is bound by his lease; because he entered into it with a knowledge and foresight of the danger. On the other hand, if, by the irruption of the sea into a country where it was never known to have come before, by the change of the course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a moss, the incursions of an enemy, or by a mortal contagion amongst the cattle ; if, by means like these, an estate change or lose its value, the loss shall fall upon the owner; that is, the tenant shall either be discharged from his agreement, or be entitled to an abatement of rent. A house in London, by the building of a bridge, the opening of a new road or street, may become of ten times its former value; and, by contrary causes, may be as much reduced in value: here also, as before, the owner, not the hirer, shall be affected by the alteration. The reason upon which our determination proceeds is this; that changes such as these, being neither foreseen nor provided for by the contracting parties, form no part or condition of the contract; and therefore ought to have the same effect as if no contract at all had been made (for none was made with respect to them), that is, ought to fall upon the owner.
CONTRACTS CONCERNING THE LENDING OF MONEY.
THERE exists no reason in the law of nature why a man should not be paid for the lending of his money, as well as of any other property into which the money might be converted. The scruples that have been entertained upon this head, and upon the foundation of which the receiving of interest or usury (for they formerly meant the same thing), was once prohibited in almost all Christian countries”, arose from a passage in the law of * By a statute of James the First, interest above eight pounds per cent. was prohibited (and consequently under that rate allowed), with
this sage provision, That this statute shall not be construed or expounded to allow the practice of usury in point of religion or conscience.