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the individual party, of whom it is required, is accustomed to take of his own posesions; and he, very ingeniously, substitutes a new rule in the place of that, which he rejects; namely, that, when the things in question are the sole property. of the perfon, to whom they must be restored, the holder of them is obliged to keep them with the first degree of diligence; whence he decides, that a borrower and a birer are responsible for precisely the same neglect ; that a vendor, who retains for a time the custody of the goods sold, is under the same obligation, in respect of care, with a man, who undertakes to manage the affairs of another, either without his request, as a negotiorum geftor, or with it, as a mandatary: “ but, says he, when " the things are the JOINT property of the parties
contracting, no higher diligence can be required " than the second degree, or that, which the
acting party commonly uses in his own affairs; " and it is sufficient, if be keep them, as he keeps " bis own.' This he conceives to be the diftinction between the eight contracts, which precede, and the two, which follow, the words in bis quidem et diligentiam.
Throughout his work he displays no small fagacity and erudition, but speaks with too much confidence of his own decisions, and with too much asperity or contempt of all other interpreters from BARTOLUS to VINNIUS.
At the time when this author wrote, the learned M. POTHIER was composing some of his admirable treatises on all the different species of express, or implied, contracts; and here I seize with pleasure an opportunity of recommending those treatises to the English lawyer, exhorting him to read them again and again; for, if his great master LITTLETON has given him, as it must be presumed, a taste for luminous method, apposite examples, and a clear manly style, in which nothing is redundant, nothing deficient, he will surely be delighted with works, in which all those advantages are combined, and the greatest portion of which is law at Westminster as well as at Orleans*: for
my part, I am so charmed with them, that, if my undissembled fondness for the study of jurisprudence were never to produce any greater benefit to the publick, than barely the introduction of Pothier to the acquaintance of my countrymen, I should think that I had in some measure discharged the debt, which every man, according to lord COKE, owes to his profesion.
To this venerable professor and judge, for he had sustained both characters with deserved applause, Le Brun sent a copy of his little work;
* Oeuvres de M. Pothier, à Paris, chez DEBURE: 28 volumes in duodecimo, or 6 in quarto. The illustrious author died
and M. Pothier honoured it with a short, but complete, answer in the form of a General Observation on bis Treatises*; declaring, at the fame time, that he would not enter into a literary contest, and apologizing for his fixed adherence to the ancient system, which he politely ascribes to the natural bias of an old man in favour of opinions formerly imbibed. This is the substance of his answer : “ that he can discover no kind of ab
surdity in the usual division of neglect and diligence, nor in the rule, by which different des grees of them are applied to different con" tracts; that to speak with strict propriety,
negligence is not permitted in any contract, “ but a less rigorous construction prevails in some " than in others; that a hirer, for instance, is
not considered as negligent, when he takes the “ fame care of the goods hired, which the ge
nerality of mankind take of their own; that “the letter to bire, who has his reward, must be
presumed to have demanded at first no higher
degree of diligence, and cannot justly complain “ of that inattention, which in another case might “ have been culpable; for a lender, who has no “ reward, may fairly exact from the borrower " that extraordinary degree of care, which a very
It is printed apart, in fourteen' pages, at the end of his treatise on the Marriage-contract.
“ attentive person of bis age and quality would
certainly have taken; that the diligence, which " the INDIVIDUAL party commonly uses in his
own affairs, cannot properly be the object of “ judicial inquiry; for every trustee, administra“ tor, partner, or co-proprietor, must be pre
sumed by the court, auditors, or commissioners, *6 before whom an account is taken, or a diftri“ bution or partition made, to use in their own
concerns such diligence, as is commonly used by all prudent men; that it is a violation of good faith for any man to take less care of an“ other's property, which has been intrusted to him, “ than of his own; that, consequently, the author “ of the new system demands no, more of a
partner or a joint-owner than of a depositary, “ who is bound to keep the goods deposited as “ be keeps his own ; which is direcily repugnant " to the indisputable and undisputed sense of the " law Contractus."
I cannot learn whether M. Le BRUN ever published a reply, but am inclined to believe that his system has gained very little ground in France, and that the old interpretation continues universally admitted on the continent both by theorists and practisers.
Nothing material can be added to Pothier's argument, which, in
humble opinion, is unanswerable ; but it may not be wholly useless to
set down a few general remarks on the controversy: particular observations might be multiplied without end.
The only essential difference between the systems of GODEFROI and LE BRUN relates to the two contracts, which follow the much-disputed clause; for the Swiss lawyer makes the partner and co-proprietor answerable for ordinary neglect, and the French advocate demands no more from them than common bonesty: now, in this respect, the error of the second system has been proved to demonstration; and the author of it himself confesses ingenuously, that the other part of it fails in the article of Marriage-portions*.
In regard to the division of neglect and care into three degrees or two, the dispute appears to be merely verbal; yet, even on this head, LE Brun seems to be self-confuted: he begins with engaging to prove “ that only two degrees of “ fault are distinguished by the laws of Rome," and ends with drawing a conclusion, that they acknowledge but one degree: now, though this might be only a slip, yet the whole tenor of his book establishes two modes of diligence, the omissions of which are as many neglects; exclusively of gross neglect, which he likewise admits, for the culpa leviffima only is that, which he repu
* See p. 71. note; and p. 126.