possesses and administers property for the benefit of others; generally, on certain conditions and according to certain rules. 153. The Right of Moveables generally implies a Right of Alienation; that is, of transferring them to another by Gift, Sale, or Barter. The Right to Immoveables does not so universally imply a Right of Alienation; for the Dominium Eminens (144) of the State or the Sovereign may come in, and may prohibit or limit such a transfer. a Feudal Tenant could not alienate his Fee to another Person. The Fee must be granted by the Lord only. Thus 154. Again; the State regulates, by special Laws and Customs, the Succession of Property; that is, the disposal of a man's property after his death, whether moveable or immoveable. It determines whether he shall have the power of disposing of the whole, or of part, by his Will and Testament. And if the man die intestate, the Law determines in what manner his property shall be assigned to the members of his family, or to other persons. In some States, as in ancient Rome, the property was equally divided among the children; in others, as in England, there is a Law of Primogeniture, by which a larger portion, or the whole (so far as landed property is concerned), is given to the eldest Such differences depend upon the different views of the relations of Families, and their Property, to the State, which prevail in different times and Countries. son. 155. To give, or alienate Property, some external act is requisite; for we are now speaking of Laws which deal with external acts. The Law must define what Act, (including words in the term Acts) shall constitute giving or alienating. It must determine, for instance, whether Words of Transfer be sufficient for this purpose; and if so, with what publicity they must be uttered, in order to be valid; or whether some Act of Delivery be also requisites The latter was the case in the Roman and in the English Law; at least in the most formal kinds of transfer. Also an Act of Acceptance on the other part is requisite ; for it would be intolerable that a person should, without my consent, have the power of giving me what might be in the highest degree burdensome or troublesome; as if he were to give me a wild beast. And the act of acceptance must also be defined by Law. 156. Questions have been discussed among Jurists as to the Rule which is to be followed when the Right of Property comes in conflict with the Needs of Personal Safety. For instance; When, in a ship, the common stock of provisions fails, is it allowable for the Passengers to use that which belongs to one of them in spite of his will? When a fire is raging in a town, is it allowable, in order to stop it, to pull down a house without consent of the owner? When a ship runs foul of the cables of other ships, is it allowable for the captain to cut these cables if his ship cannot otherwise be extricated? In such cases, it has been decided by the Roman Law, and its Commentators, that the Right of Property must give way. Necessity, they say*, overrules all Laws. But this is to be required only in extreme cases, and when all other courses fail. To which is added, by most Jurists, that when it is possible, restitution is to be made for the damage committed. A like Rule is recognized in the English Law†. It has been held, by some English Lawyers, that a starving man may justifiably take food; but others deny that such necessity gives a Right; inasmuch as the poor are otherwise provided for by Law‡. * Grot. II. 2. 6. 4. + Kent's Commentaries, 11. 338. + Bl. iv. 32. 90 CHAPTER IV. THE RIGHTS OF CONTRACT. 157. We have already (50) spoken of the necessity of mutual understanding and mutual dependence among men; and the consequent necessity of the fulfilment of Promises, as one of the principal bonds of Society. The necessity of depending upon assurances made by other men, gives birth to a Right in the person to whom the assurances are made. A person has, under due conditions, a Right to the fulfilment of a Promise. The Law realizes this Right, and must therefore define the conditions. The mutual assurances, which the Law undertakes to enforce, are called Contracts. In the language of the Roman Law, the Judge is made to say*, "Pacta Conventa quæ neque dolo malo, neque adversus leges, plebiscita, Senatus consulta, edicta Principum, neque quo fraus cui rerum fiat, facta erunt, servabo." 158. The Law, which enforces Contracts, must determine what Promises are valid Contracts. To show the necessity of recurring to actual Law on this subject, we may remark how vague, arbitrary, and inconvenient are the maxims on this point, which Jurists have attempted to draw from the nature of the case. Thus it has been asserted†, that of the three ways of speaking of the future: I intend to give you I shall give you: I promise you: the two former do not give a Right to the person addressed; but the third does. It is evident that this distinction is as arbitrary as any merely legal one can be: and if such rules are arbitrary, they must be established as a matter of fact, not of reasoning: that is, they must be established by actual Laws. Dig. 11. 14, 17. I will enforce Pacts and Contracts which are made in conformity with the Laws, the Decrees of the People and of the Senate, the Edicts of the Emperor, in good faith, and with no fraudulent design. t Grot. B. et P. II. 11. 2. 159. But according to the Roman Law, even the last formula, I promise you, did not convey a Right. It was called a bare Promise, Nudum Pactum; as not being clothed with the circumstances of mutual advantage and formal act, which are requisite to a valid engagement. In thus refusing to recognize a bare Promise as creating a Right, the Law proceeds with a due regard to the gravity of Rights. Relations so important must be brought into being only by acts of a calm and deliberate kind. If a verbal promise, however hasty, informal, and destitute of reasonable motive, were to be sanctioned as creating a Right, the Law must carry into effect the most extravagant proposals of gamesters; as for instance, when a man stakes the whole of his fortune on the turn of a die: for the meaning of such an act is, "I promise to give you so much, if the cast is so." But the Law, whose purpose is to produce and maintain a moral and social condition of man, in which human actions are deliberate, rational and coherent, refuses its sanction and aid to such rash, irrational, and incoherent proceedings. Hence the Roman Law rejects Contracts in which there is no Cause or Consideration*: "Cum nulla subest causa propter conventionem, hic constat constitere non posse obligationem. Igitur nuda pactio obligationem non facit." And the same is the case in the English Law: in which a Contract is defined†, "An agreement of two or more persons, upon sufficient Consideration, to do or not to do a particular thing:" and the Consideration is necessary to the validity of the Contract. 160. The Law, though it requires a Consideration on each side as a Contract, does not undertake to provide an # Dig. 11. 14. 7. When there is no reason for the contract, there can be no obligation. Hence a nude pact does not establish an obligation. + Bl. II. 445. equality of advantage to both; but is contented with any degree of reciprocity, leaving the force of the Consideration to be weighed by the contracting parties. Thus money paid is a valuable consideration: but a good consideration also is that of blood, or of natural love and affection, when a man grants an estate to a poor relation on motives of generosity, prudence, and natural duty*. And as a Consideration is made necessary by the Law, in order to avoid the inconvenience of giving legal force to mere verbal promises, the Contract may be made in so solemn a manner that the Law will suppose a Consideration, though it be not expressed. This is the case in the English Law, when a man executes a bond under his seal. On the other hand, the Law will not recognize a Contract for which the Consideration is an illegal act. Thus the Roman Lawt: "Pacta quæ causam turpem habent non sunt servanda." And the English Law‡ recognizes a number of cases of this kind, as annulling Contracts. 161. Contracts are void also when made under violence and constraint. In such cases the person so constrained and compelled is, in the language of the Law, in Duress (Durities). The Law also recognizes Durities per minas, Fear arising from threats, as a circumstance which invalidates a contract made under its influence. But this fear must be of a serious kind; fear of loss of life, or of limb; and this upon sufficient reason; or, as an ancient English Law-writer expresses it §, "Non suspicio cujusit§, libet vani et meticulosi hominis, sed talis quæ possit cadere in hominem constantem." A fear of being beaten, though * Bl. 11. 297. enforced. Pacts for a shameful consideration are not to be + Kent's Com., 11. 466. § Bracton. quoted Blackst. 11. 131. Not the suspicion of a light-minded and timorous person, but such as may fall upon a man of firm mind. |