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 concealing of 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 marketprice, 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 marketprice; 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 buyers; 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 convenience, 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 perished, 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 china-man 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 convenience of the buyer, then the buyer undertakes the risk: as, if I buy a horse, and mention that I will 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 befals the horse in the meantime, 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.

CHAP. VIII.

CONTRACTS OF HAZARD.

By Contracts of Hazard, I mean gaming and 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

* 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.

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, are 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 was 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 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 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.

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.

CHAP. IX.

CONTRACTS OF LENDING OF INCONSUMABLE
PROPERTY.

WHEN the indentical 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