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At the time when this author wrote, the learned M. POTHIER was compofing fome of his admirable treatifes on all the different fpecies of exprefs, or implied, contracts; and here I feize 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 prefumed, a tafte for luminous method, appofite examples, and a clear manly style, in which nothing is redundant, nothing deficient, he will furely be delighted with works, in which all thofe advantages are combined, and the greatest portion of which is law at Westminster as well as at Orleans*: for my own part, I am fo charmed with them, that, if my undiffembled fondness for the study of jurifprudence 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 fome measure discharged the debt, which every man, according to lord COKE, owes to his profeffion.

To this venerable profeffor and judge, for he had fuftained both characters with deferved 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 illuftrious author died in 1772.

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and M. POTHIER honoured it with a short, but complete, answer in the form of a General Obfervation on his Treatifes*; 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 abfurdity in the ufual divifion of neglect and diligence, nor in the rule, by which different degrees of them are applied to different con"tracts; that to fpeak with ftrict propriety, "negligence is not permitted in any contract, "but a less rigorous conftruction prevails in fome "than in others; that a hirer, for inftance, is "not confidered 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 hire, who has his reward, must be

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prefumed to have demanded at first no higher "degree of diligence, and cannot justly complain "of that inattention, which in another cafe 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 perfon of his 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

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judicial inquiry; for every trustee, administra"tor, partner, or co-proprietor, must be prefumed by the court, auditors, or commiffioners, "before whom an account is taken, or a distri"bution or partition made, to use in their own 66 concerns fuch diligence, as is commonly used "by all prudent men; that it is a violation of

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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, confequently, the author "of the new fyftem demands no more of a partner or a joint-owner than of a depositary, "who is bound to keep the goods depofited as "be keeps his own; which is direcly repugnant "to the indifputable 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 fyftem has gained very little ground in France, and that the old interpretation continues univerfally admitted on the continent both by theorists and practifers.

Nothing material can be added to POTHIER'S argument, which, in my humble opinion, is unanswerable; but it may not be wholly useless to

fet down a few general remarks on the controverfy: particular obfervations might be multiplied without end.

The only effential difference between the systems of GODEFROI and LE BRUN relates to the two contracts, which follow the much-disputed claufe; 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 bonefty: now, in this respect, the error of the fecond fyftem has been proved to demonftration; and the author of it himself confeffes 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 difpute appears to be merely verbal; yet, even on this head, LE BRUN feems to be felf-confuted: he begins with engaging to prove "that only two degrees of "fault are diftinguifhed by the laws of Rome," and ends with drawing a conclufion, that they acknowledge but one degree: now, though this might be only a flip, yet the whole tenor of his book establishes two modes of diligence, the omiffions of which are as many neglects; exclufively of gross neglect, which he likewise admits, for the culpa leviffima only is that, which he repu

* See p. 71. note; and p. 126.

diates. It is true, that he gives no epithet or name to the omiffion of his fecond mode of care; and, had he searched for an epithet, he could have found no other than grofs; which would have demonftrated the weakness of his whole fyftem*.

The difquifition amounts, in fact, to this: from the barrenness or poverty, as LUCRETIUS calls it, of the Latin language, the single word CULPA includes, as a generick term, various degrees or fhades of fault, which are fometimes diftinguished by epithets, and fometimes left without any diftinction; but the Greek, which is rich and flexible, has a term expreffive of almost every shade, and the tranflators of the law Contractus actually use the words paluuía and ', which are by no means fynonymous, the former implying a certain eafinefs of mind or remiffness of attention, while the second imports a higher and more culpable degree of negligencet. This observation, indeed, seems to favour the fyftem of GODEFROI; but I lay no great

* See pages 32. 73. 74. 149.

† Bafilica, 2, 3, 23. See Demofth. 3 Phil. Reiske's edit. I. 112. 3. For leviffima culpa, which occurs but once in the whole body of Roman law, paluuía feems the proper word in Greek; and it is actually fo ufed in the Bafilica, 60. 3. 5. where mention is made of the Aquilian law, in quâ, fays ULPIAN, et leviffima culpa venit. D. 9. 2. 44•

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