show, that the law intended to interpose its su- 1 nothing for all this, but the promise of the preme authority, to acquit men of debts, of the butcher, and the implied promise of his servant existence and justice of which they were them- and mine. And the same holds of the most imselves sensible. Again, to preserve youth from portant as well as the most familiar occurrences of the practices and impositions to which their inex-| social life. In the one, the intervention of properience exposes them, the law compels the pay-mises is formal, and is seen and acknowledged; ment of no debts incurred within a certain age, nor the performance of any engagements, except for such necessaries as are suited to their condition and fortunes. If a young person therefore perceive that he has been practised or imposed upon, he may honestly avail himself of the privilege of his nonage, to defeat the circumvention. But, if he shelter himself under this privilege, to avoid a fair obligation, or an equitable contract, he extends the privilege to a case, in which it is not allowed by intention of law, and in which consequently it does not, in natural justice, exist.

They who argue from innate moral principles, suppose a sense of the obligation of promises to be one of them; but without assuming this, or any thing else, without proof, the obligation to perform promises may be deduced from the necessity of such a conduct to the well-being, or the existence indeed, of human society.

Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. If no dependence could be placed upon these assurances, it would be impossible to know what judgment to form of many future events, or how to regulate our conduct with respect to them. Confidence therefore in promises, is essential to the intercourse of human life; because, without it, the greatest part of our conduct would proceed upon chance. But there could be no confidence in promises, if men were not obliged to perform them; the obligation therefore to perform promises, is essential to the same ends, and in the same degree.

Some may imagine, that if this obligation were suspended, a general caution and mutual distrust would ensue, which might do as well: but this is imagined, without considering how, every hour of our lives, we trust to, and depend upon, others; and how impossible it is, to stir a step, or, what is worse, to sit still a moment, without such trust and dependence. I am now writing at my ease, not doubting (or rather never distrusting, and therefore never thinking about it) that the butcher will send in the joint of meat which I ordered; that his servant will bring it; that my cook will dress; it; that my footman will serve it up; that I shall find it upon table at one o'clock. Yet have

our instance, therefore, is intended to show it in
the other, where it is not so distinctly observed.“
II. In what sense promises are to be interpreted.
Where the terms of promise admit of more
senses than one, the promise is to be performed
"in that sense in which the promiser apprehended,
at the time that the promisee received it."

It is not the sense in which the promiser actually intended it, that always governs the interpretation of an equivocal promise; because, at that rate, you might excite expectations, which you never meant, nor would be obliged to satisfy. Much less is it the sense, in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements which you never designed to undertake. It must, therefore, be the sense (for there is no other remaining) in which the promiser believed that the promisee accepted his promise.

This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve: but we put the rule in the above form, to exclude evasion in cases in which the popular meaning of a phrase, and the strict in general, wherever the promiser attempts to grammatical signification of the words differ; or, expressions which he used. make his escape through some ambiguity in the

Temures promised the garrison of Sebastia, that, if they would surrender, na blood should be shed. The garrison surrendered; and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense too in which he intended it at the time; but not the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it: which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it.

From the account we have given of the obligation of promises, it is evident, that this obligation depends upon the expectations which we knowingly and voluntarily excite. Consequently, any action or conduct towards another, which we are sensible excites expectations in that other, is as much a promise, and creates as strict an obligation, as the most express assurances. Taking, for instance, a kinsman's child, and educating him for a liberal profession, or in a manner suitable only for the heir of a large fortune, as much obliges us to place him in that profession, or to leave him such a fortune, as if we had given him a promise to do so under our hands and seals. In like manner, a great man, who encourages an indigent retainer; or a minister of state, who distinguishes and caresses at his levee one who is in a situation to be obliged by his patronage; engages, by such behaviour, to provide for him.-This is the foundation of tacit promises.

You may either simply declare your present intention, or you may accompany your declaration with an engagement to abide by it, which constitutes a complete promise. In the first case, the duty is satisfied, if you were sincere at the time, that is if vou entertained at the time the intention

you expressed, however soon, or for whatever these cases are not obliged to perform what the reason, you afterwards change it. In the latter promise requires, because they were under a prior case, you have parted with the liberty of changing. obligation to the contrary. From which prior All this is plain: but it must be observed, that obligation what is there to discharge them? Their most of those forms of speech, which, strictly taken, promise,-their own act and deed. But an obliamount to no more than declarations of present gation, from which a man can discharge himself intention, do yet, in the usual way of understand-by his own act, is no obligation at all. The guilt ing them, excite the expectation, and therefore therefore of such promises lies in the making, not carry with them the force of absolute promises. in the breaking of them; and if, in the interval Such as, "I intend you this place"-"I design to betwixt the promise and the performance, a man kave you this estate"-"I purpose giving you my so far recover his reflection, as to repent of his vote"-"I mean to serve you."-In which, al- engagements, he ought certainly to break through though the "intention," the "design," the "pur- them. pose," the "meaning," be expressed in words of the present time, yet you cannot afterwards recede from them without a breach of good faith. If you choose therefore to make known your present intention, and yet to reserve to yourself the liberty of changing it, you must guard your expressions by an aditional clause, as, "I intend at present," "if I do not alter," or the like. And after all, as there can be no reason for communicating your intention, but to excite some degree of expectation or other, a wanton change of an intention which is once disclosed, always disappoints somebody; and is always, for that reason, wrong.

There is, in some men, an infirmity with regard to promises, which often betrays them into great distress. From the confusion, or hesitation, or obscurity, with which they express themselves, especially when overawed or taken by surprise, they sometimes encourage expectations, and bring upon themselves demands, which, possibly, they never dreamed of. This is a want, not so much of integrity, as of presence of mind.

III. In what cases promises are not binding. 1. Promises are not binding, where the performance is impossible.

But observe, that the promiser is guilty of a fraud, if he be secretly aware of the impossibility, at the time of making the promise. For, when any one promises a thing, he asserts his belief, at least, of the possibility of performing it; as no one can accept or understand a promise under any other supposition. Instances of this sort are the following: The minister promises a place, which he knows to be engaged, or not at his disposal:A father, in settling marriage-articles, promises to leave his daughter an estate, which he knows to be entailed upon the heir male of his family:-A merchant promises a ship, or share of a ship, which he is privately advised is lost at sea:-An incumbent promises to resign a living, being previously assured that his resignation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is justly answerable in an equivalent; but other

wise not.

When the promiser himself occasions the impossibility, it is neither more nor less than a direct breach of the promise; as when a soldier maims, or a servant disables himself, to get rid of his engagements.

2. Promises are not binding, where the performance is unlawful.

There are two cases of this: one, where the unlawfulness is known to the parties, at the time of making the promise; as where an assassin promises his employer to despatch his rival or his enemy; a servant to betray his master; a pimp to procure a mistress; or a friend to give his as sistance in a scheme of seduction. The parties in G

The other case is, where the unlawfulness did not exist, or was not known, at the time of making the promise; as where a merchant promises his correspondent abroad, to send him a ship load of corn at a time appointed, and before the time arrive, an embargo is laid upon the exportation of corn:-A woman gives a promise of marriage; before the marriage, she discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all such cases, where the contrary does not appear, it must be presumed that the parties supposed what they promised to be lawful, and that the promise proceeded entirely upon this supposition. The lawfulness therefore becomes a condition of the promise; which condition failing, the obligation ceases. Of the same nature was Herod's promise to his daughter-in-law, "that he would give her whatever she asked, even to the half of his kingdom." The promise was not unlawful in the terms in which Herod. delivered it; and when it became so by the daughter's choice, by her demanding "John the Baptist's head," Herod was discharged from the obligation of it, for the reason now laid down, as well as for that given in the last paragraph.

This rule, "that promises are void, where the performance is unlawful," extends also to imperfect obligations: for, the reason of the rule holds of all obligations. Thus, if you promise a man a place, or your vote, and he afterwards render himself unfit to receive either, you are absolved from the obligation of your promise; or, if a better candidate appear, and it be a case in which you are bound by oath, or otherwise, to govern yourself by the qualification, the promise must be broken through.

And here I would recommend, to young persons especially, a caution, from the neglect of which many involve themselves in embarrassment and disgrace; and that is, "never to give a promise, which may interfere, in the event, with their duty;" for, if it do so interfere, their duty must be discharged, though at the expense of their promise, and not unusually of their good name.

The specific performance of promises is reckoned a perfect obligation. And many casuists have laid down, in opposition to what has been here asserted, that, where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred. For which opinion, however, there seems to be no reason, but what arises from the terms "perfect" and "imperfect," the impropriety of which has been remarked above. The truth is, of two contradictory obligations, that ought to prevail which is prior in point of time.

It is the performance being unlawful, and not unlawfulness in the subject or motive of the promise, which destroys its validity: therefore a bribe, after the vote is given; the wages of prostitution;

the reward of any crime, after the crime is com- | of mine, for a relation or friend of his; then A is mitted; ought, if promised, to be paid. For the the promisee, whose consent I must obtain, to be sin and mischief, by this supposition, are over; released from the engagement. and will be neither more nor less for the performance of the promise.

If I promise a place or vote to B by A, that is, if A be a messenger to convey the promise, as if I should say, "You may tell B that he shall have this place, or may depend upon my vote;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it: then B is the promisee.

In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the lifetime of his wife, who was then sick, had paid his addresses, and promised marriage, to another woman;-the wife died; and the woman demanded Promises to one person, for the benefit of performance of the promise. The man, who, it another, are not released by the death of the proseems, had changed his mind, either felt or pre-misee; for, his death neither makes the perfortended doubts concerning the obligation of such a mance impracticable, nor implies any consent to promise, and referred his case to Bishop Sander-release the promiser from it. son, the most eminent, in this kind of knowledge, of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void. In which, however, upon our principles, he was wrong; for, however criminal the affection might be, which induced the promise, the performance, when it was demanded, was lawful; which is the only lawfulness required.

A promise cannot be deemed unlawful, where it produces, when performed, no effect, beyond what would have taken place had the promise never been made. And this is the single case, in which the obligation of a promise will justify a conduct, which, unless it had been promised, would be unjust. A captive may lawfully recover his liberty, by a promise of neutrality; for his conqueror takes nothing by the promise, which he might not have secured by his death or confinement; and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion, can extend no further than to passive compliance; for coercion itself could compel no more. Upon the same principle, promises of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them, to destroy their obligation: for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise, which they would have gained without it.

3. Promises are not binding, where they contradict a former promise.

6. Erroneous promises are not binding in certain cases; as

1. Where the error proceeds from the mistake or misrepresentation of the promisee.

Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity, by a story of the most pitiable distress; you promise to relieve him, if he will call again :-In the interval you discover his story to be made up of lies;-this discovery, no doubt, releases you from your promise. One who wants your service, describes the business or office for which he would engage you;

you promise to undertake it;-when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you:-In such case, you are not bound by your promise.

2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son;-soon after which, he promises his fortune to his nephew.The account turns out to be false.-The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the case,-for that alone will not do;-but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least his uncle thought he so understood it; and could not 4. Promises are not binding before acceptance; think otherwise. The promise proceeded upon that is, before notice given to the promisee; for, this supposition in the promiser's own apprehenwhere the promise is beneficial, if notice be given, sion, and, as he believed, in the apprehension of acceptance may be presumed. Until the promise both parties; and this belief of his, is the precise be communicated to the promisee, it is the same circumstance which sets him free. The foundaonly as a resolution in the mind of the promiser, tion of the rule is plainly this: a man is bound which may be altered at pleasure. For no ex-only to satisfy the expectation which he intended pectation has been excited, therefore none can be disappointed.

Because the performance is then unlawful; which resolves this case into the last.

But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee; is that such a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the essence of a promise;—I have not voluntarily excited expectation.

5. Promises are not binding which are released by the promisee.

This is evident: but it may be sometimes doubted who the promisee is. If I give a promise to A, of a place or vote for B; as to a father for his son; to an uncle for his nephew; to a friend

to excite; whatever condition therefore he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote;-presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out.—But the promisee did not know this;-he did not receive the promise, subject to any such condition, or as proceeding from any such supposition; nor did 1

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 not 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.

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 conveniency 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 befalls 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 or 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; Where there exists no monopoly or combination, or not till the wine be committed to my servants, the market-price is always a fair price; because or deposited in my cellar; are all questions it will always be proportionable to the use and which admit of no decision, but what custom scarcity of the article. Hence, there need be no points out. Whence, in justice, as well as law, scruple about demanding or taking the market-what is called the custom of merchants, regulates price; and all those expressions, "provisions are the construction of mercantile concerns. extravagantly dear," "corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.

CHAPTER VIII.

Contracts of Hazard.

insurance.
By Contracts of Hazard, I mean gaming and

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 What some say of this kind of contracts, "that terms upon which he would consent to part with them, it may be questioned what dishonesty there the other," is neither practicable nor true. It is one side ought not to have any advantage over can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner and judgment, which this rule requires, is seldom not practicable; for that perfect equality of skill exposes goods to public sale, virtually engages to deal with his customers at a market-price; because to be met with. I might not have it in my power, it is upon the faith and opinion of such an en- tennis; lay a wager at a horse-race; or underto play with fairness a game at cards, billiards, or gagement, that any one comes within his shop write a policy of insurance, once in a twelvemonth, doors, or offers to treat with him. This is ex- if I must wait till I meet with a person, whose pected 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

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 is exactly the same thing, an advantage in the one give to the other a part of the stake; or, what chance of winning the whole.

*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 be false, although the most probable that he could projudgment upon presumptions, which presumptions may ceed by.