« AnteriorContinuar »
In speculations in trade, or in the locks, if I ex. ercise my judgment upon the general aspect and polture 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 neceffary : 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 per. son insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete.
с НА Р.
CHA P. ix.
CONTRACTS OF LENDING OF INCONSUMABLE
W H EN the identical loan is to be returned, as
W a book, a horse, a harpsichord, it is called in. consumable, 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 job-coach, 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 dą.
mage mag- or risk, and therefore consents to undertake it ; in ihe other caie, he does not.
li is possible that an e'ate or a house may, during the term of a leale, be so increased or dininished in iis value, as to become worth much more, or much less, than the rent agreed to be paid for it. In lume of u hich cases, it may be doubied, to whom, of ra. tual right, the advantage or disadvantage belorgs The rule of justice seems to be this : if the altcra. tion might be expected by the parties, the hirer must take the consequence; if it could noi, the owner. Az orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yild . thing, or next to nothing, yet the tenant shall pay his rent; and if they next year picdace ten-fi the usual profii, no more shall be demanded; be. cause the produce is in its nature precarious, ard this variation migit be expected If an estaie in the fers of Lincoli dhire, or the idle of Ely, be overfowed with water, to as to be i':capable of occ:sa. tion, the tenant, notwirliftanding, is bou: d by his Jeale ; because he entered into it with a krowlane and forclight of this darger. On the other hand, it by the irruption of the tea into a country where it was never known to have come before, by the charge of the course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a mound, the incur10:15 of an econy, or by a mortal contagion amongst the caille; if by means like there, an eltatt charge, or lore its value, the loss shall tall upon the owner; that is, the iciant Mall cither be discharged from his agreement, or be errickd to an abatement of rent. A bunie i I cud'n, by the buildi: g of a bridge, the opeing of a new road or stree', may bicone of ica umes 115 forser vale; a'd by co. inary calls, may be as much reduced in value: here alli, as bc to's, thi.!!(r, !0t the lines, fail be ait cted by the avail, I. The reaiva upon which our determinata porcs is this, that ciiarges such as thee, bug noher forcicer, rior provided for by the contracti' g
parties, form ao 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.
CH A P. X.
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 receiv. ing of intereit 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 Moses, Deuteronomy xxiii, 19, 20, “ Thou shalt not “ lend upon usury to thy brother ; usury of money, “ usury of victuals, usury of any thing, that is lent “ upon usury: unto a stranger thou mayest lend up. “ on usury; but unto thy brother thou shalt not lend s upon usury."
• By a statute of James the First, interest above eight pounds per cent. was prohibited, (and consequently under thai raie allowed) with this sage provision; Thai ibis statute shall not be conprued or expounded to allow obe practice of ufury in point of religion or conscience.
This prohibition is now generally undersiood to have been intended for the Jews alone, as part of the civil or policical law of that nation, and calculated to preserve amongst themselves that distribution of pro. perty, to which mary of their iftitutions were lubservient; as the marriage of an heireis within her own cribe; of a widow, who was left childluis, to her husband's brother ; the year of jubilee, when alierated ellares reverted to the family of the original proprietor --regulations, which were never thought to be binding upon any but the commonwealth of Ifrael.
This interpretation is confirmed, I thik, beyond all controveriy, by the distinction made in the law, between a Jew and a foreigner, “ unto a stranger “ thou mayest lend upon utury, but unto thy bro" ther, thou mayest not lend upon ulury," a dira tinction, which could hardly have been admitted in10 a law, which the Divine Author intended to be of moral and of universal obligation.
The rate of interest has in most countries been re. gulated by law. The Roman law allowed of ruclie pounds per cent, which Jullinian reduced at one Itroke to four pounds. A facule of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of interest in England ar ail, restrained it to ien pounds per cent; a itature of James the First to eight pounds; of Charles the Se. cond, 10 lix pourds; of Queen Anne, lo five pouous, on pain of forfeiture of treble value of the moriry lent; at which rate and penalty the matter no's stands. The policy of theie regulations is, to check the power of accumulating wcalth without idufiry; to give encouragement to trade, by enabling adven. Turers in it to borrow money at a moderate price : a:.d of late years, to erable the state to borrow the Tubject's moncy itself.
Compound interent, though forbidden by the law of E.g.d, is agrecable enough to natural equirii