ever so well grounded, is no duress; neither is the fear of having one's house burned, or one's goods taken away or destroyed; because, in these cases, a man may obtain redress; but no sufficient compensation can be made for loss of life or limb.

162.

Contracts are also void, from the want of that free agency which the law requires, when the deficiency arises, not from violence or threats, but from the condition of the party as to age or understanding. Persons under the legal full age, called Minors or Infants by the Law, cannot make a valid Contract. By the English Law the Wife also is incapable of binding herself by Contract; her interests being supposed to be so inseparably bound up with those of her Husband, that she cannot act independently of him. A Contract made by a person not having the use of Reason, non compos mentis, is void. The Contracts of Lunatics are void from the time when the Lunacy commences. It has also been settled by the English Law*, that a Contract made by a man in a state of intoxication, if his state be such that he do not know the Consequences of his conduct, is void. Imbecility of Mind is not sufficient to set aside a Contract, when there is not an essential privation of Reason, or an incapacity of understanding and acting in the common affairs of life.

The

163. Contracts may be rendered void by Deception or Fraud practised on one side; but it is a matter of no small difficulty to lay down consistent Rules on this subject. Roman Law, as we have seen (157), does not enforce Contracts which are made dolo malo. And this is further explained in the same placet: "Dolus malus fit calliditate et fallaciâ.

* Kent, II. 151

+ Dig. 11. 14, 17. Fraud is the use of trick and deception. A pact is fraudulent when, for the purpose of circumventing some person, one thing is done and another simulated to be done.

Dolo malo pactum fit quoties circumscribendi alterius causâ aliud agitur et aliud agi simulatur.' But it is easier to lay down Rules on this subject when Contracts have been distinguished into different kinds.

164. The Roman Jurists have divided Contracts, according to the Consideration, into four Kinds, expressed by the four Formulæ : Do ut des; Facio ut facias; Facio ut des; Do ut facias. The First includes Contracts of Buying and Selling, of Barter or Exchange, and Loans of Money: the Second includes Contracts of Commission, Partnership, and the like the Third includes Contracts of Hiring and Service, as when a Servant or Workman engages to work for certain wages: the Fourth is the Counterpart of the Third, when one person Contracts to pay the other who serves or works.

165. The most common of these Contracts, in which there are familiar names for the correlative acts; Buying and Selling; a Commission given and taken; Letting and Hiring;-Venditio et Emptio, Mandatum, Locatio et Conductio; the Roman Jurists termed Contractus Nominati; all others, as Barter, were Contractus Innominati; and they laid down different Rules for the two Classes.

Thus a Sale was valid, as soon as the price was agreed upon; re integrâ, that is, before payment or delivery. But in the innominate Contracts, re integrâ, the parties were allowed to retract. This difference was founded in the greater frequency and familiarity of the nominate Contracts, which made deliberation less necessary, and delay more inconvenient. But in Sales, in order to remove any doubt which might arise, as to whether the Sale was completed, the practice was sometimes adopted of giving Arrha, Earnest, a portion of the price; which, however small, made the Contract binding. Among the Northern Nations, shaking the parties' hands together had this efficacy; and a sale thus made

;

was called handsale ; whence handsel was also used for the earnest of the price*. In the same manner a symbolical delivery of the goods was introduced: as for instance, the delivery of the key of the warehouse in which they were contained.

166. Borrowing and Lending, is a Contract, in which the Romans distinguished two different cases, which we confound under one term. Mutuum was applied to the lending of those things which are reckoned by number, weight, and measure; as wine, oil, corn, coined money, of which the borrower receives a stated quantity which he may use, consume, or part with. Commodatum was that which was lent, to be restored identically the same; as a book, a harp, a horse. And the Law made a distinction in the responsibility of the borrower in these two cases. The person who had received a thing as commodatum, was bound indeed to keep it with as much care as if it were his own, or with more, if more were possible: yet if it were lost or destroyed by no fault of his, he was not bound to make compensation. But if he had received a thing as mutuum, it was to be repaid at any rate, in whatever way it had been consumed or lost. Paley‡ calls commodatum, inconsumable property. The other kind, consumable property, is also termed Res fungibiles by the Roman Law; for one portion can discharge the office of another. "Res ejus generis functionem recipere dicuntur; id est, restitui posse per quod genere idem est §."

167. Besides the Hiring of Labour, Locatio Operis faciendi, there is Locatio Rei, the Letting of a Thing to

* Blackstone, 11. 448.

+ Inst. III. 15. The principle of the distinction by which mutuum and commodatum are opposed, as to liability of risk in the case of loss, is the principle of ownership: Res perit domino, in case of innocent loss, is a universal rule. In mutuum the property is transferred to the Borrower: in commodatum it remains with the Lender: Therefore the loss in the first case falls on the Borrower, in the second on the Lender.

Moral Phil. B. III. c. 3.

§ Grot. B. et P. 11. 10. 13.

hire, as letting a house. In this case, also, the Hirer is bound to ordinary care and diligence, and is answerable for neglect but the extent of his Obligations, as to Repairs and Expenses, must be settled by express Rules of Law or Custom *.

:

168. When the Obligation of one party to pay Money to the other is established, and not yet performed, the money to be paid is a Debt, due from the Debtor to the Creditor. Hence Debt may arise out of any of the above kinds of Contract, as Sale, Hiring, and the like.

169. Among many forms of Debt, we may notice those recorded in writing: thus, when I write, I promise to pay to A.B. one pound, I acknowledge myself indebted to A.B. to the amount of one pound. When I write to M.N., Pay to A.B. one pound, and M. N. does this, I make myself indebted to M.N. one pound, which is to be afterwards reckoned between M. N. and me. Documents of the former kind are Promissory Notes; those of the latter kind are Bills of Exchange. These Documents may be transferred from hand to hand, and may, with them, transfer the Debt. This may be done by making them payable to A. B. or Bearer; or by their being indorsed by A. B. when he transfers them to C; by C when he transfers them to another; and so on. Bills and Notes thus transferable, and still unpaid, may answer the purpose of Money; they may constitute a Paper-Money.

170. Other kinds of Deposits, on express or implied Contract, are enumerated in the Roman Law: as Pignus, a Pledge or Pawn for a Debt; Depositum, a Deposit without Reward. Delivery of Goods from one person to another on trust is called by the English Lawyers Bailment*, and the Goods are said to be bailed to him who receives them.

171. With regard to Contracts of Sale, Questions occur, How far the Seller is obliged to make good the * Sir W. Jones, On Bailment, classes the scale of liabilities.

Title (135) to the thing sold: How far he is responsible for its quality: How far, in making the bargain, he is bound to disclose all circumstances which may affect the price.

With regard to the Title, by the Roman Law* the Seller was responsible, "Sive tota res evincatur sive pars, habet regressum emptor in venditoremt." The same is the case in the English Law: a fair price implies warranty of Title‡.

As to the Quality of the goods sold, the Seller is not responsible, when they can be judged by the Purchaser's own discretion. The rule then is Caveat emptor. If goods ordered, be found not to correspond with the order, the Purchaser is required immediately to return them to the Vendor, or give him notice to take them back: otherwise he is presumed to acquiesce in the result.

172. The Obligation of disclosing the circumstances which effect the price of a thing sold, has been a matter of great discussion among Jurists and Moralists. Cicero § states such a case. A merchant of Alexandria brings a supply of corn to Rhodes in a time of great scarcity and dearth. He knows that many other merchant-vessels laden with corn are also on their way to Rhodes, which the Rhodians do not know. Is he bound to disclose this circumstance? As a matter of legal obligation, which is the point now under consideration, it is agreed that the seller is forbidden to misrepresent the intrinsic qualities of his wares. But it is pronounced that he is not obliged to disclose all extraneous circumstances which may effect their value. "Venditorem, quatenus jure civile constitutum est,

+ If it be proved that the Title is bad, either for the whole or part, the Buyer has his remedy against the Seller.

So far the rules of Civil Law go, the Seller must disclose the defects of his wares: as to the rest, he must act without deceit: but, being a seller he must wish to get the best price. "I bring my wares to market:

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