CH. 1. Art. 5. ton. civil law. Potentia pro §3. Their assent may be given, expressly, by words or by signs, or tacitly; but it is a maxim in law, that no assent be inferred from a man's silence, unless; 1, he knows his right and what is doing; and 2d, unless his silence be voluntary. It there- Assent to fore follows, if I know one is conveying my property to another, contracts. and I am voluntarily silent, I may be barred; for the law, in this case, may presume my assent; but this presumption, like 8 T. R. 483, every other, may be rebutted by evidence; and when parties or D. & E. assent, it is not material how the matters assented to, be placed Burgh v. Presin writing; therefore, they may assent to a whole bond or deed, and make it binding, when at the time of the signing a part of it is written by, or in a memorandum, on the back of it. But some exceptions are made by the statute of frauds, &c. ART. 5. Matter of contracts and agreements. § 1. It is a set- So was the tled principle that one must have an actual, or potential interest in a thing to be able, by his contract, or agreement, to convey it, or dispose of it. If I own a piece of land, I can sell the grass that will grow on it next year; because I have it potentially. But I cannot sell the future crop of land I do not own. I can- pinqua. not sell what I shall buy. I have it not myself, and I cannot Potential inconvey what I have not.., I neither have it actually nor potentially. But I may by an executory contract, covenant, or engage to buy and convey the land; but this cannot enable the other party, legally, to recover the land; but only damages, if I fail to perform. So if I have only a condition, I cannot contract for the property or possession; as if I sell a ship to B, Conditional on condition he pay me $1000 in three months, I cannot, in the interest. mean time, sell her to another; for I have only a condition, and such a sale is bad, though he fail to pay; that is, if I contract with C, in the mean time, that he shall have her at such a price, if B do not perform, and he does not, and I do not fulfil my contract with C, he can only have an action for damages against me for not performing, but never can recover the ship herself in replevin, or otherwise, as he would be able to do if my contract with him sold and conveyed the property of the ship to him-See below. And in every contract of sale it is asserted to fix the price. 14 Vesey 400. When the parties in any case reduce their contract to writing, all their previous parol agreements are viewed as included in it. terest. 88,98, $2. Possibility. There are three kinds of possibilities; 1, a 2 Day's Ca. possibility coupled with an interest; this may be devised, trans- 137-3 T. R. mitted, or assigned, as an interest one has by executory devise, Jones' v. Roe. this too will pass by descent; because the person has an in- -1 Burr. 228. terest in the lands known in law: so in contingent, spring--4 T. R. 39. ing, and executory uses. 2. A bare possibility, or hope of suc-10 Mod. cession, as of an heir, living his ancestor; this cannot descend, 419 to 425nor can it be assigned, devised, or even released: the utmost -5T. R. 618. 3 T. R. 41. Сн. 1. 5 Wood's 551.-Co. L. 72.-10 Co. 49. case of Lampet.Fearne 58. 8 Co. 96.2 Bl. Com. 173, 290. 2 Cro. 593.1 Com. D. 124-5 Bac. 70, 132.-11 158-3 East the heir can do, in respect to this, is to release to the tenant of the land, with warranty, and so bar or rebut himself by his own warranty. 3. A possibility, a mere contingent interest, as a devise to A if he survive B; here is a mere contingency; Con. 22, 23, and any estate A may have depends on a condition precedent, and if he die before B, nothing vests in A or goes to A's heir; nor has A any interest he can devise or assign, or any way transfer by his contracts. But this possibility A may release to the tenant of the land; as the wife's possibility to dower may be released, living her husband; as was decided in the sixth and seventh points in Lampet's case, 10 Co. 48. So a term for years is granted to A for life, remainder to B; B liv554.-Gilb. ing, A has but a mere possibility, a mere contingent interest, 378-Co. L. and is good only if A die before the term ends, in the use or 264.-Shep. term itself; but during A's life B's executory interest cannot 288.-Stran. be granted to a stranger; but this possibility may be extinMod. 158 to guished by a release to him in possession: the reason is, the 163.-2 Wood grant to a stranger occasions suits and contentions; but the 120-3 Wood release to him in possession extinguishes them; and the many cases on this litigated point, seem to be reducible to this one principle; the release is good, and extinguishes the possibility, when made to one, who has an interest in the thing, in which the possibility is absorbed, whether in possession, remainder, or reversion, in privity, or otherwise; because in either way the possible interest is absorbed or extinguished, and being so, it cannot be the ground of litigation, as it might be, and often would be, if the law allowed it to be transferred to a stranger. § 3. So in personal matters, if a master agree to pay his mate $200 wages, provided he proceeds, continues, and does his -10 Mod. duty from one port to another, as from Jamaica to London, and the mate dies on the passage, his administratrix can recover no part of the sum, or any wages; no interest could pass from the deceased mate to her as his representative, because none ever vested in him; but to the vesting of any, there was a condition precedent; to wit, his performing the voyage; nor had he any, he could, by contract, have assigned. No limited number of lives on which an executory interest vests. 4 Vejey jun. 313. 515.-4 Wood 43. But. Fearne East 162. 524, &c., 6 T. R. 320. 412. See Cutler admx. v. Powell. 4 Co. 123.Beverly's case, but 3 Day's Ca. 90 held that such a person may avoid ART. 6. Privies. § 1. Contracts, in many cases, are materially affected by privity. In Beverly's case it was resolved that a deed of a person non compos is voidable, yet he himself shall not avoid it; but that his privies in blood, as his heirs, or by representation, as executors or administrators might do it; but not privies in estate, as he in remainderor reversion, is to tenant for life; nor in tenure, as the feudal lord was to the tenant of the land. ing, ch. 35, a. The reason is, a man's deed or contract is his mere personal act; it binds him solely, because it has his legal assent, ex her own deed. See the reason 6. CH. 1. Art. 7. pressed or implied. Without it, he cannot be held to yield a right; and without this assent a right secured to him, by the contract, cannot be released; and being, in toto, personal, none but such as represent the person, can avoid or confirm. By this implied personal assent, one partner binds another in a partnership contract; the wife the husband; and the servant the master, by a contract made by his implied consent. If two take a bond, and one release it, the other is barred on the same principle; because by voluntarily joining, this power is, impliedly, given to each by the other. But if by law compelled to join, as in auditâ querelâ, and in some other cases, the release of one has no such effect, because here, the joining being thus by legal compulsion, there is no room for such implied assent or to presume it. On this distinction is summons and severance, in actions, founded; therefore, if two or more voluntarily join in taking a contract, and one will not proceed in an action upon it, he cannot, by law, be severed; but if by law two or more are obliged to join in a suit, and one will not pro- Toller's 1. of ceed in it, he may be severed by summons and severance, and Ex. 446.-3 the rest proceed without him; but there is no summons and severance, where all need not join. 10 Mass. R. 136. 2. By privity of contract, a release to one obligor is a release to the other, or to all in the bond; because here the creditor releases all his right by discharge to one debtor, and another may get it and plead the release. The privity among the debtors is in their being bound and united, and jointly, in one entire debt; however, in some cases, one may be discharged and not the others. Bac. Abr. 33. Cro. Cas. 420, 3. So where several are interested in one entire thing, or How a reestate, there is a privity of estate, and they are privies; and lease, &c. to one privy in a deed to one may be pleaded by another; as a release to one estate affects joint-tenant, or partner, may be pleaded by another. It ope- another. rates on the thing, and one interested in it may use it; as one in remainder, or reversion, may plead a release or confirmation to tenant for life, and e converso; the same as to an heir, executor, guardian and ward, lessor and lessee. 8 John's. R. These are a few of the material principles in contracts and agreement, in the English and American laws, which will be often considered, more minutely in the following pages, as different subjects, to which they relate, shall come into view. 253, 256. And an entire contract, illegal and void in part, is so in the whole, and a contract must be proved as laid in the plaintiff's declaration. 2 Wils. 376, ART. 7. Of dissolving contracts. § 1. It is asettled rule, that Rogers v. with as high a degree of force, or validity, as a contract re- Paine. ceives in its formation, it must be dissolved; and according to Unum quodthe Roman rule, unumquodque dissolvi eo ligamine quo liga- &c. que dissolvi, Сн. 1. 6 Co. 44, Blake's case. 4 Mass. R. 443, Kelle Pan v. Brown. Civil law.- Contracts in different countries. 3d book, title 2, in art. I to 234-title 3, art. 1 to 20. Institutes. The same in the laws of 260. tur. On this principle a deed must be discharged by deed. Hence a discharge in the nature of a release, without deed, in satisfaction of all demands, cannot be pleaded in an action of covenant; for covenant by deed must be discharged by deed. This rule holds, whenever the deed or contract itself is to be released, discharged, or dissolved; but not when damages arising out of it are to be released or discharged; for a writing without a seal cannot operate as a defeasance, so as to make a mortgage of a deed absolute on the face of it, in law, though it may in equity. 2. Every payment supposes a debt, and if any thing be paid not due, it may be demanded back, but not as to moral obligations, voluntarily discharged. A contract may be discharged by every one interested in it, such as a co-obligor, or surety, or by one not interested, if he act in the debtor's name to make a valid payment and discharge, he who pays must own the thing given in payment, and have a power to alienate it. A payment made to one who has no power to receive for the creditor, is valid, and discharges the debt if ratified by him, or if the thing come to his use. 3. As to the principles of contracts in the civil and other laws. Perhaps the principles of contracts, as found settled in the civil law, and in the laws of some of those European nations, which have more strictly followed the civil or Roman law, will be observed to be, in some cases, nearer the moral sense of mankind, than those of the English laws, though the difference will not be found to be considerable. In some cases it may be found we have adopted the principles of the civil law, where the English have not. Hence the principles of contracts, following, are extracted from the French code revised, and published about 1805 and 1806, and these will be found to have been collected, almost verbatim, from the Roman or civil law. These principles, in general, being founded in the moral perceptions of men, are such as are recognised in all civilized nations, with but few exceptions. 4. In the French law a contract fs defined to be a convenLouisiana, p. tion, "par laquelle une ou plusiurs personnes s'obligent envers une ou plusieurs, à donner, à faire, ou à ne faire quelque chose." The conditions of which are; 1, the consent of the party binding himself; 2, his capacity to do it; 3, an object certain, that forms the matter of the contract, and 4, a legal cause of the obligation. But there is no consent, if given by mistake, or if it be obtained by violence or deceit; but then the error must be in the substance of the thing itself which is the object; and violence avoids the contract, though used by a third person, and it is violence when, of a nature to inspire a reasonable person with the fear of exposing himself, or estate to a considerable and present evil; and in this case, respect is to be had to the age, sex, and condition of the person. 5. But a contract cannot be impeached by reason of violence, if after it has ceased, the contract is, expressly, or tacitly approved, or if the legal time allowed to except to it be passed. § 6. "Le dol," or deceit, avoids a contract when so practised by one party, that without this, the other, clearly, would not have contracted; but deceit is always to be proved. $7. Every one may contract, if not declared by law to be incapable; and one of ability to contract cannot allege the incapacity of the party with whom he contracts. 8. The mere use, or mere possession of a thing may be, as well as the thing itself, the object of a contract. 9. An obligation, without cause, or grounded on a false or illegal one, is void: and an implied contract is as valid as an express one. The cause is illegal, when prohibited by law, or is contrary to good morals, or the public order. 10. An obligation to give, implies a delivery of the thing, and a duty to preserve it till the delivery, on the penalty of damages to the creditor. 11. No damages are due to the creditor, or contracter, till the contract be broken. They are, generally, when broken, his loss sustained, and gain thereby deprived of, but such only as are the immediate and direct consequence of the non-execution of the contract. 12. When it is expressly provided for in the contract, that the party failing to execute it, shall pay a certain sum in the name of damages, and interest, that very sum must be paid. 13. The construction is upon the whole contract, and what is implied is to be taken into view, as much as if expressed. See 14 Mass. R. 453-455, as to doing a seaman's duty. §14. Conditions. Every condition impossible, or contrary to good morals, or prohibited by law, is void. And a condition not to do a thing impossible, avoids not an obligation in which it is contained. Every condition is to be performed in the manner the parties really meant it should be. When an obligation is made, depending on a future uncertain event, or on one that has actually happened, though not known, the thing contracted about remains at the debtor's risk, who is not bound to deliver it, but on the happening of the condition. If the thing entirely perish without his fault, the obligation is extinct. If damaged without his fault, the creditor has his election either to dissolve the contract, or to demand the thing, in the state wherein it is, without diminution of price. If the thing be damaged by the debtor's fault, the creditor has a right to dissolve the contract, or to demand the thing in the state in which it is, with damages and interest. Сн. 1. Art. 7. |