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 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 no

* Inst. 1. 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. § Sir W. Jones, On Bailment, classes the scale of liabilities. VOL. I.-L

tice 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 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§.

*See note §, p. 121.

+ Dig. xxI. 2. 1.

If it be proved that the Title is bad, either for the whole or part, the Buyer has his remedy against the Seller. § Kent, Com. 11. 478.

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 affect 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 affect their value†. "Venditorem, quatenus jure civile constitutum est, dicere vitia oportere; cætera sine insidiis agere; at, quoniam vendat, velle quam optimé vendere. Adduxi, exposui, vendo meum; non pluris quam cæteri; fortasse etiam minoris, cum major est copia. Cui fit injuria?" In the same manner it has been decided by an English court‡, that the Purchaser of an estate was not obliged to

* Off. II. 12.

† 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: I offer them for sale; I sell what is my own; not dearer than others; perhaps cheaper, as I have a larger stock. Whom do I wrong?"

Kent, II. 489.

disclose to the Seller his knowledge of the existence of a mine on the Estate.

But it is further stated to be law*, that the Seller is liable, if he fraudulently misrepresent the quality of the thing sold, in some particulars in which the Buyer had not equal means of knowledge: or if he do so, in such a manner as to induce the Buyer to forbear making the enquiries, which, for his own security and advantage, he would otherwise have made.

وو

173. It has been attempted to express all Rules on this subject by saying that the Rule of Contract is Equality: "Ut ex inæqualitate jus oriatur minus habentit.' But this maxim must not be carried so far as to destroy the nature of a Contract: for by that, we do not agree, generally, to give and receive equal things; but we determine what we are to give and receive. The Rule is rather to be sought in the intentions and expectations of the parties contracting. Each is obliged to do that which he gives the other reason to expect, and knows that he does expect. This is expressed by saying that the transaction is bonâ fide, in good faith.

174. Yet in many cases, the estimate of the intentions and expectations of the parties must be vague and obscure; and instead of attempting to regulate the course of law by these, it may be more proper to apply strict rules of interpretation to the language of Contracts. Hence the Roman Law makes a distinction of actions bona fidei, and actions stricti juris.

Rules of Interpretation of the Language of Contracts have been laid down by Jurists; and are an important part of the doctrine of Contracts, in its applications. These Rules, for the most part, have for

*Kent. II. 487.

+ Grot. B. et P. II. 12. So that he who receives the less has a claim arising from the inequality.

their object to combine good faith with exact Law. Such are these, for instance; that common words are to be understood in a common sense; Terms of Art in their technical sense that when it is necessary, words are to be interpreted by the matter, effect, and accompaniments: and the like*.

175. The wrongs which violate the Rights of Contract are Fraud, of which some causes have been considered; and Breach of Contract, against which the Law provides Remedies, by actions of various kinds; but on these we need not further dwell.

CHAPTER V.

THE RIGHTS OF MARRIAGE.

176. We have already pointed out (47) that one of the most powerful Springs of action in man is the Desire of Family Society, which grows out of his Appetites and Affections. The needs of man's condition so operate, that he cannot exist in a social and moral state, except there be, established in Society, Rights which sanction and protect the gratification of this Desire. Such Rights, with the corresponding mutual obligations, are given to the Husband and Wife, united in a legitimate Marriage; and the Rights thus vested in the Husband, and in the Wife, are the Rights of Marriage.

Marriage and Property are termed Institutions; inasmuch as they imply the establishment of General Rules, by which, not only the special parties are bound, (as in Contracts); but by which the whole Society also is governed. These two Institutions are

* Grot. P. et B. II. 16.