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due care of his child, and the child should promise to 'honour his father, they are promising no more than what they were already bound to.
'In what sense promises are to be interpreted.'
Paley is nearly, but not entirely right, in the rule he has here laid down. A man expressing himself very carelessly might not only intend, but might really suppose the other to understand, something quite wide of what his words conveyed, or could fairly convey. He is bound not by what he did apprehend the other to understand, but by what he had good reason to apprehend was understood. Every assertion, or promise, or declaration of whatever kind, is to be interpreted on the principle that the right meaning of any expression is that which may be fairly presumed to be understood by it. This may chance to be different from what the other party actually did understand; for you are not bound to be answerable for his mistakes. And again, it may be different from what you yourself inwardly meant, if you were designing to mislead the other by an equivocation, or if you expressed yourself carelessly and inaccurately. But in whatever sense it might reasonably be expected that a declaration of any kind will be understood, this is to be regarded as the true sense, and that to which you are bound.
In enumerating the cases in which promises are not binding, Paley speaks of its being quite evident that a promise is not binding when the performance is impossible. And yet daily experience shows that this rule does not hold good, except when it is distinctly stated or fully understood by both parties, that the promise is to have this limitation ; that is, where you prudently insert the condition of if possible,' or 'I will do my utmost. But without this, any one who makes an engagement is supposed to have fully considered all possibilities; and if he fails, from whatever cause, he is held bound to make good the damage, or to suffer the blame and penalty of non-fulfilment. If, for instance, a merchant or manufacturer contracts to deliver certain goods on such a day, he is never allowed to plead that the non-arrival of an expected ship, or a strike of his workmen, rendered the fulfilment impossible. In fact no such plea is ever put in; because it is known that it would not be listened to. Every court of justice would sentence him to pay damages just the same as if the failure had been caused by negligence. And if the other party chuses, out of compassion for an unavoidable and unexpected mischance, to forego the claim, this is a matter of charity, but not a claim of right. If, in short, you engage merely to do what you can to effect a certain object, you are bound to use your best endeavours, and you are not bound to succeed, nor are liable to any blame for unavoidable failure. But an unconditional promise claims an unconditional fulfilment; and if it is not fulfilled, the other party has a right to complain, and may claim any compensation that can be obtained.
Vows are promises to God.' In treating of this point, the Author seems to have forgotten what he had said above, that'a promise is not binding before acceptance. He there adds, indeed, that where the promise is beneficial, acceptance may be presumed. But this evidently has reference only to promises from Man to Man; since no act of ours can be really beneficial to the Most High. And therefore a person who has made a vow to God, is authorized and bound to consider whether the thing promised is what He may be supposed to approve. If, for instance, he has been led to believe that God disapproves of marriage, or, at least, delights more in the single than the married, or that He approves of celibacy in the Clergy; and if the person who has thus been induced to make a vow of celibacy, afterwards finds that he has been deluded by 'false prophets,' he may fairly plead that his vow was not really accepted by the God of truth.
CONTRACTS. A CONTRACT is a mutual promise. The obligation therefore A of contracts, the sense in which they are to be interpreted, and the cases where they are not binding, will be the same as of promises.
From the principle established in the last chapter, that the obligation of promises is to be measured by the expectation which the promiser anyhow voluntarily and knowingly excites,' results a rule which governs the construction of all contracts, and is capable, from its simplicity, of being applied with great ease and certainty, viz. That
Whatever is expected by one side, and known to be so expected by the other, is to be deemed a part or condition of the contract.
The several kinds of contract, and the order in which we propose to consider them, may be exhibited at one view, thus :
M he rule of justice, which wants with most anxiety to be in
I culcated in the making of bargains, is that, the seller is bound in conscience to disclose the faults of what he offers to sale. Amongst other methods of proving this, one may be the following:
I suppose it will be allowed, that to advance a direct falsehood, in recommendation of our wares, by ascribing to them some quality which we know that they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know that they have. The motives and the effects of actions are the only points of comparison, in which their moral quality can differ: but the motive in these two cases is the same, viz. to procure a higher price than we expect otherwise to obtain : the effect, that is, the prejudice to the buyer, is also the same; for he finds himself equally out of pocket by his bargain, whether the commodity, when he gets home with it, turn out worse than he had supposed, by the want of some quality which he expected, or the discovery of some fault which he did not expect. If
therefore actions be the same, as to all moral purposes, whichi proceed from the same motives, and produce the same effects ; it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but none, to conceal its faults.
It adds to the value of this kind of honesty, that the faults of many things are of a nature not to be known by any, but by the persons who have used them ; so that the buyer has no security from imposition, but in the ingenuousness and integrity of the seller.
There is one exception however to this rule ; namely, where the silence of the seller implies some fault in the thing to be sold, and where the buyer has a compensation in the price for the risk which he ruus : as where a horse, in a London repository, is sold by public auction, without warranty; the want of warranty is notice of some unsoundness, and produces a proportionable abatement in the price.
To this of concealing the faults of what we want to put off, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one, who had been robbed upon the highway, should allege that he had a right to reimburse himself out of the pocket of the first traveller he met; the justice of which reasoning, the traveller possibly may not comprehend.
Where there exists no monopoly or combination, the marketprice is always a fair price; because it will always be proportionable to the use and scarcity of the article. Hence, there need be no scruple about demanding or taking the market price ; and all those expressions, provisions are extravagantly dear,' 'corn bears an unreasonable price, and the like, import no unfairness or unreasonableness in the seller.
If your tailor or your draper charge, or even ask of you, more for a suit of clothes than the market-price, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge, dishonest : although, as the man's goods were his own, and he had a right to prescribe the terms upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deal with his customers at a market-price; because it is upon the faith and opinion of such an engagement, that any one comes within his shop-doors, or offers to treat with him. This is expected by the buyer ; is known to be so expected by the seller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a syllable be said about it. The breach of this implied contract constitutes the fraud inquired after.
Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fancy or conveniency, and that you will not turn yourself out of it, under such a price; the price fixed may be double of what the house cost, or would fetch at a public sale, without any imputation of injustice or extortion upon you.
If the thing sold be damaged, or perish, between the sale and the delivery, ought the buyer to bear the loss, or the seller ? This will depend upon the particular construction of the contract. If the seller, either expressly, or by implication, or by custom, engage to deliver the goods; as if I buy a set of china, and the china-man ask me to what place he shall bring or send them, and they be broken in the conveyance, the seller must abide by the loss. If the thing sold remain with the seller, at the instance, or for the conveniency, of the buyer, then the buyer undertakes the risk ; as if I buy a horse, and mention, that I will send for it on such a day (which is in effect desiring that it may continue with the seller till I do send for it), then whatever misfortune befals the horse in the mean time, must be at my cost.
And here, once for all, I would observe, that innumerable questions of this sort are determined solely by custom ; not that custom possesses any proper authority to alter or ascertain the nature of right and wrong; but because the contracting parties are presumed to include in their stipulation all the conditions which custom has annexed to contracts of the same sort : and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact.'
| It happens here, as in many cases, that what the parties ought to do, and what