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wrong;" or their "notions of sound morality." It seems to us to be a radical mistake in Mr. V.'s argument, that there is a standard of "moraljudgment," or "conscience," except in very clear and broad cases. The tribunal of conscience; the impressions of right and wrong; the notions of morality, on which he builds so much of his system, are no where to be found in any fixed shape or character. These vary with education, habits, natural passions and propensities, feelings, strength of intellect, interests, and other causes and circumstances. To refer a question of "right and wrong" to such standards, would be to have no right or wrong. In another part of the essay, when arguing stoutly and successfully against the Civil Law doctrine of "equality of price being necessary to a fair bargain," he says truly and forcibly, "whenever the courts have lost sight of the plain distinction that insufficiency of price means nothing at all, except relatively and by comparison, and that it can have no effect upon the fairness of any bargain, unless that comparison affords a fair legal presumption of fraud, or oppression, or gross error as to facts, their decisions have been capricious, confused and contradictory, beyond those of any other head of equity." Again he speaks of the danger of suffering agreements to be liable "to be set aside, in conformity to the opinions, the caprices, or it may be the ignorance of a Chancellor, or Equity Court." And yet all this would be mathematical certainty in comparison with the unrestrained decrees of conscience, moral judgment, and sound morality; which are frequently nothing more than the opinion, caprice, ignorance or interest of the individual pronouncing them. It is very easy and pretty to say, "truth alone is immutable and eternal;" but it is not the less difficult to discover what is the truth.
But how is it clear that the moral judgment of any intelligent man would declare the tobacco contract mentioned, invalid? How is it clear that any absolute injury and injustice was done to the seller? To say that he did not make as much profit by his tobacco, as he would have done had he known of the peace and postponed his sale for a few hours, is saying nothing bo the abstract justice of the transaction.—To seek that we must look further back, if we look back at all; but how much further it is impossible to say; perhaps to the planter who grew it . The seller of this tobacco obtained for it what, in his judgment, was a full and fair price; that is, a price which afforded him a just profit for his labour, his capital, and the usual expectation of the trade. But a circumstance has occurred which would have greatly increased that profit; which would have induced him to demand a much higher price, had it been known to him—as, however, by negligence or casualty he has suffered this advantage to escape him, why should the law bring it back to him? Why restore him to a situation he has lost, in the usual course of his business, without any fraud or artifice used to withdraw him from it . If the day before he had purchased the tobacco at a still lower rate than he obtained for it, why should not this conscientious, moral equity go back to the person who sold it to him; and so on, as far back as the actual occurrence of the fact, to wit, the treaty, which gave the additional value to the article, and from which moment it became certain the article would rise? Why should the last seller have the whole increased profit awarded to him, and he alone be permitted to rescind his contract? Why do conscience and morality stop there?
Certainly we are aware that it may be answered, that in the preceding sales there was a mutual ignorance, and in the last this ignorance was only on the side of the seller; still we ask, why should not mutual ignorance of a fact affecting the contract, invalidate it; and, indeed, a fortiori, because in that case it is not what either party intended. In cases of latent, defective quality in goods sold, unknown to both parties, our author contends for the Civil Law rule, which avoids the contract, or rather declares there was no contract; and does not all the argument for that doctrine equally apply to any other fact, of which the parties were mutually ignorant, affecting the contract, or the thing which is the subject of it, even in a greater degree than the latent defect? Let us suppose that this intelligence of a treaty had been untrue, or it had not been ratified; and this tobacco had fallen, after the purchase, still lower than before; both parties having heard the rumour, and both believing it—what would our moral judgment say in such a case? Could the seller be called upon to take back his tobacco, and repay the price, which had been thus enhanced? Are all the chances—the whole chapter of accidents and events, to be on one side? If contracts are thus to be the sport of rumours, to be affirmed or invalidated as they prove true or false, the whole business of buying and selling must cease, and commerce become nothing but a source of ruinous and uncertain litigation. It is not only the peace or war of our own country which affect the value and prices of commodities, but of foreign states also; and, of course, the knowledge or ignorance of these events will have the same influence on our contracts.
Our reasoning to bring these cases within the civil law doctrine of concealment, may be said to be uncertain and inconclusive. It may be so; and so must all reasoning be which is drawn from the conscience of special cases; and this demonstrates the necessity of a general, steadfast rule, like that of the common law, which acts on a broad principle of policy and justice; and is not ever shifting and changing its position and dimensions, to accommodate itself to the real or imaginary equity of every transaction. all fraud, falsehood and artifice; against every thing that could deceive a man reasonably prudent and vigilant; and beyond this you must take care of yourself; a rule is given which is easily remembered and understood. It will beget proper care and watchfulness; and the party will know, that if for want of such care an injury befalls him, he must abide by it; and he will think no more of it; unless it be to be more cautious in future. But if, instead of having this plain, short path to walk in, he is to be involved in the mazes of refined ethics and metaphysical reasoning, in order to ascertain whether he may be redressed, or not, it is difficult to say where his inquiry should begin, and much more so to conjecture when or where it will end. No man is at a loss to know whether he has been cheated or not; whether any positive fraud or trick has been put upon him; but whether his case is of that sort of dishonesty which civilians have agreed shall invalidate a contract, or falls within some of their nice distinctions and exceptions, might take his life to determine.
The practical wisdom of the remark of the Chief Justice, is now manifest, that "it would be difficult to circumscribe the contrary doctrine within proper limits," either as to the nature or extent of the knowledge which the party possessing it is bound to communicate. Our author struggles in vain with this difficulty, and endeavours to obtain a rule which will avoid it, more enlarged than that of the common law; but it cannot be found. He admits that "a literal compliance with the ancient civil law doctrine of concealment, would speedily put an end to the inestimable advantages that society derives from the wholesome stimulus of commerce and the arts, given by the prospect of profit to be acquired by superior skill and industry; by minuter attention to business, or by a more extensive correspondence, and more authentic intelligence." Here appears to be concession enough to cover the tobacco case, and justify the judgment of the Court, at least in that instance, if it does not maintain the whole principle laid down. Again, the author of the Essay goes on, "It is not true that either party is bound in conscience, or even by a delicate and fastidious honour, to communicate to the other, omne quod intererit scissc, Wztj circumstance regarding the business, which the buyer has an interest in knowing. A thousand examples of familiar occurrence may be imagined, where the peculiar talent or the industry of one man has given him a superiority of knowledge which it would be of the greatest use to the other side to participate in, but which no one could ever think him bound to communicate." He then proceeds to put some cases to explain his principle. "Suppose a merchant has, at a great expense and risk, ascertained that Cochin China, orsome unfrequented port in India, offers a profitable market for some articles in no special demand at home. Is it dishonest in him to make the most of this hardly and dearly earned knowledge before it becomes common to others? May he not purchase his opium, his ginseng or his bark, at the current rate, without first telling the seller that it would be more for his interest not to sell at the price he offers?" Here we have "expense and risk" in acquiring the information made the criterion of the right of concealment . Suppose this merchant, by accident or on the information of a friend, had obtained this useful knowledge of a profitable market, without any expense
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The buyer of the tobacco had information, on which he chose to rely, that a peace was concluded by the commissioners at Ghent . This might have been a deception or a mistake, or what is called a hoax in such cases, and is not unfrequent . He chose to act upon it, and he did so at his peril. If this information had been less direct and authentic; if he had but received a letter from a friend at Ghent, even one of the commissioners, assuring him that a treaty would be signed, it is not pretended he would have been bound to communicate it . And why not? Certainly it would have affected the price; not, indeed, in the degree of the more direct and authentic information, but sufficiently to prevent the sale at the price given. The receipt of such a letter was a fact "necessarily and materially affecting the common estimate which fixes the present market value of the thing sold;" which is the rule recommended to us. Every step shows the impossibility of circumscribing these doctrines "within proper limits. "It seems to us to be an error to say that "by mere silence the superior information of one party is liberally rewarded at the heavy expense of the other." If it were so, we see no injustice in it; but in truth the only complaint is, that the purchaser has taken to himself, by his superior information and discreet silence, the great increase of profit, which the seller would have taken if the communication had been made to him. He has received what he considered a full price and fair profit; you are rewarded only by the greater gains to which your superior knowledge has given you a better right . An ignorance of the right of the party in the thing sold,