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instalments at distant dates, such conditions require to be specifically expressed, seeing they do not flow from the nature of the contract itself.1
Consideration.—The offer or promise, on the one hand, constitutes the consideration for the acceptance, on the other; or, reversing the position, the acceptance, on the one hand, constitutes the consideration for the offer or promise on the other. All contracts are, therefore, said to be based upon, or supported by, a consideration.
The reader will at once perceive that this definition of “consideration” includes the case of a mere promise to give or to do an act of kindness," when the promisee has accepted the offer or promise; and as he is aware that no action will lie by a child against his parent, by one friend against another, for the mere non-performance of such a promise, he will feel disposed to reject the definition as defective, nor will he find it difficult to quote authorities in support of his position. He will, however, upon careful examination of the Roman, the English, and, I venture to think, of every other system, be convinced that the definition is accurate, and that the difficulty arises from confining the term consideration to that consideration which will support any particular contract. This removes the question, not merely from the province of general, to that of particular, jurisprudence, in order to determine whether the given agreement is in fact, in the particular State, a contract or a mere convention; but to that portion of the particular jurisprudence which deals with that peculiar class of agreements; e.g., when applied to the English contract of“ promise of marriage," the definition is adequate; when applied to ordinary English simple contracts, it is not. The question, therefore, to be answered in each case is,-What does the law recognise as a consideration capable of supporting the given contract ?
i Pothier, Traité des Obligations, part i. ch. 1. art. 1, § 3.
The law of England requires that the consideration capable of supporting a simple contract shall be 'some benefit to the person making the promise, or some loss, trouble, or inconvenience to, or charge upon, the person to whom it is made.'
Sir Wm. Blackstone, following the arrangement of the civilians, divides considerations into four classes : 1. Do ut des, when I give something that something may be given to me; 2. Facio ut facias, when I do something that something may be done for me; 3. Facio ut des, when I do something that something may be given to me; 4. Do ut facias, when I give something that something may be done for me.' 1
Fraud (dolus). From what has been already said, it is obvious that a promise procured by violence or fraud, that is, deceit practised upon the contracting party, in order to induce him to enter into the agreement, cannot constitute a consideration sufficient to support a contract. When fraud is pleaded as a ground of nullity, it must be of such a nature as to have induced the party to enter into the contract-fraus dans causam contractui.
The parties legally qualified to contract, the nature and extent of the subject matter of the contract, the legality of the stipulation, and the nature of the solemnities or of the evidence required to establish the contract, together with the proper means of enforcing it,
1 Blac. Com., vol. ii. p. 444. Step. Blac., vol. ii. p. 59.
2 Labeo defines dolum malum to be omnem calliditem, fallaciam, machinationem ad circumveniendum, fallendum, decipiendum alterum adhibitam ;' and this definition is approved by Ulpian (D. 4, 3, 1, 2).
or of seeking redress, necessarily belong to the particular jurisprudence of the place where it is to be litigated.
Quasi-contracts are acts done by one man to his own inconvenience for the advantage of another, but without the authority of the other, and, consequently, without any promise on the part of the other to indemnify him or reward him for his trouble: e.g., Negotiorum gestio, in the Roman; salvage, in the English law.
An obligation arises such as would have arisen, had the one party contracted to do the act, and the other to indemnify or reward. Hence the incident is called
quasi-contract”; i.e., an incident, in consequence of which one person is obliged to another, as if a contract had been made between them.
The basis is to incite to certain useful actions. If the principle were not admitted at all, such actions would not be performed so often as they are. If pushed to a certain extent, it would lead to inconvenient and impertinent intermeddling, with the view of catching reward.
The term "quasi-contract" has also a larger import; denoting any incident by which one party obtains an advantage he ought not to retain, because the retention would damage another, or by reason of which he ought to indemnify the other. The prominent idea in quasi-contracts seems to be an undue advantage which would be acquired by the obligor, if he were not compelled to relinquish it or to indemnify.
Laws Classified.—We may say that the idea of a State involves two hypotheses,-1st, That it consists of two elements only, the sovereign portion and the subject portion; and 2nd, That the subject portion has relinquished or exchanged for given civil rights all natural rights.
1 Austin, p. 944.
In order that the subject may know what his civil rights and duties are, they must be defined. This may be done, either by stating what he must not do, and what he may do, or by simply prohibiting given acts and omissions, and leaving him free as to all others. The first logical division of laws is therefore into prohibitory and permissive.
Rights and duties being thus defined, it behoves the sovereign power to protect the former and to enforce the latter. To do this, it must indicate the course that is to be pursued by the subject who seeks sovereign aid against the violator of his rights, and the course that will be pursued by the sovereign power against the subject charged with the neglect or violation; or, in other words, rules of procedure must be published. Again, that equal justice may be done to the accuser and the accused, a third class of rules must be laid down, determining what shall establish the fact of guilt—the factum probandum,—and the way in which it must be established—the factum probans ;-or, in other words, a fourth class of rules—rules of evidence-must be published. We thus appear to be justified in saying, that laws are of two classes, prohibitory and permissive, and that each class has two branches, substantive and adjective. Substantive laws declare rights. Ad. jective laws of procedure indicate the mode in which the right or duty is to be enforced. Adjective laws of evidence point out, what fact or facts will be received as proof of the fact to be shown.
1 Laws have been divided by Bentham and other writers into two branches, substantive (material, le fonds du droit) and adjective (formal, la forme); substantive law being that which the courts are established to administer, as opposed to adjective law, or the rules according to which the substantive law is itself administered.
Prohibitory laws forbid the doing or the omission of given acts on the ground of their tendency to prejudice the State.
Permissive laws warrant the doing or the omission of acts, the supposition being that the doing of such acts advantages the State.
Prohibitory laws may be subdivided into three. classes :-1st, Those concerning which conviction of guilt entails punishment, e.g., in England, murder; 2nd, Where conviction of guilt entails compensation, e.g., smuggling; and 3rd, Where conviction of guilt entails, at the election of the injured, either punishment or compensation, e.g., libel, trespass to the person.
Punishments are of two kinds,-restraint of liberty, i.e. imprisonment, and fines.
Permissive laws authorise modifications of status, the adoption or assumption of persona, and the making and binding oneself by contract. They declare the subject free to become, e.g., a proprietor, a bailee, a husband, or a master; they define these various persone, and attach to each given duties ; but while the subject is free to assume the character, having assumed it, he is bound to sustain it according to the terms of the law by which it is regulated.
Autonomic Laws. - Another species of laws not made by the supreme legislature, are laws (if such they can be called) which are established by private persons, and to which the supreme legislature lends its sanction. For example, by my will I may impose certain conditions upon devisees or legatees; or, as a father or guardian, I