There appears no command or encouragement in the Chriftian fcriptures to make vows; much less any authority to break through them, when they are made. The few inftances of vows which we read of in the New Teftament were religioufly obferved.

The rules we have laid down concerning promifes are applicable to vows. Thus Jephthah's vow, taken in the fenfe in which that tranfaction is commonly underfood, was not binding; because the performance, in that contingency, became unLawful

*Acts xviii. 18. xxi. 23

СНАР. VI

A

CONTRACTS.

CONTRACT is a mutual promife. The ob ligation therefore of contracts; the fenfe in which they are to be interpreted; and the cafes where they are not binding, will be the fame as of promises.

From this principle established in the laft chapter, "that the obligation of promises is to be measured by the expectation, which the promifer any how "voluntarily and knowingly excites," refults a rule, which governs the conftruction of all contracts, and is capable, from its fimplicity, of being applied with great eafe and certainty, viz. That,

Whatever

Whatever is expected by one fide, and known to be fo expected by the other, is to be deemed a part or condition of the contract.

The feveral kinds of contracts, and the order in: which we propofe to confider them, may be exhibited at one view, thus:

THE

CONTRACTS OF SALE

HE rule of justice, which wants moft to be inculcated in the making of bargains, is, that the feller is bound in confcience to disclose the faults of what he offers to fale. Amongst other methods of proving this, one may be the following:

I fuppofe it will be allowed, that to advance a direct falfehood in recommendation of our wares, by afcribing to them fome quality which we know that they have not, is dishoneft. Now compare with this the defigned concealment of fome 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

but the motive in these two cafes is the fame, viz. to procure a higher price than we expect otherwise to obtain: the effect, that is, the prejudice to the buyer is also the fame; 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 fuppofed by the want of fome quality which he had expected, or the difcovery of fome fault which he did not expect. If therefore actions be the fame as to all moral purposes, which proceed from the fame motives, and produce the fame effects; it is making a diftinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to fell, but none to conceal its faults.

It adds to the value of this kind of honefty, that the faults of many things are of a nature not to be known by any, but by the perfons who have used them: fo that the buyer has no fecurity from impofition, but in the ingenuoufnefs and integrity of the feller.

There is one exception, however, to this rule, namely, where the filence of the feller implies fome fault in the thing to be fold, and where the buyer has a compenfation in the price for the rifk which he runs as where a horfe in a London repofitory, is fold by public auction, without warranty; the want of warranty is notice of fome unfoundness, 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 paffing bad money. This practice we fometimes hear de fended by a vulgar excufe, that we have taken the money for good, and muft therefore get rid of it. Which excufe is much the fame, as if one, who had been robbed upon the highway, fhould allege he had a right to reimburfe himself out of the pocket of the first traveller he met; the juftice of

which reafoning the traveller poffibly may not comprehend.

Where there exifte no monopoly or combination, the market price is always a fair price; because it will always be proportionable to the use and fcarcity of the article. Hence, there need be no fcruple about demanding or taking the market price; and all thofe expreffions, "provifions are extravagantly dear," "corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the feller.

If your taylor or your draper, charge, or even afk of you more for a fuit of clothes, than the marked price, you complain that you are impofed upon; you pronounce the tradefman who makes fuch a charge difhoneft although, as the man's goods were his own, and he had a right to prefcribe the terms, upon which he would confent to part with them, it may be queftioned what dishonesty there can be in the cafe, or wherein the impofition confifts. Whoever opens a fhop, or in any manner expofes goods to public fale, virtually engages to deal with his cuftomers at a market price; because it is upon the faith and opinion of fuch an engagement, that any one comes within his fhop doors, or offers to treat with him. This is expected by the buyer; is known to be fo expected by the feller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a fyllable be faid about it. The breach of this implied contract conftitutes the fraud inquired after.

Hence, if you disclaim any fuch engagement, you may fet what value you please upon your property. If, upon being asked to fell a houfe, you aufwer that the houfe fuits your fancy or conveniency, and that you will not turn yourself out of it, under fuch a price; the price fixed may be double of what the houfe coft, or would fetch at a public

fale,

fale without any imputation of injuftice or extortion upon you.

If the thing fold be damaged, or perish, between the fale and the delivery, ought the buyer to bear the lofs, or the feller? This will depend upon the particular conftruction of the contract. If the feller, either exprefsly, or by implication, or by cuftom, engage to deliver the goods; as if I buy a fet of china, and the china-man ask me whither he fhall bring or fend them to, and they are broken in the conveyance; the feller muft abide by the lofs. If the thing fold remain with the feller, at the inftance, or for the conveniency of the buyer, then the buyer undertakes the rifk; as if I buy a horse, and mention, that I will fend for it on fuch a day, which is in effect defiring that it may continue with the feller till I do fend for it; then whatever misfortune befalls the horfe in the mean time, must be at my coft.

And here, once for all, I would obferve, that innumerable queftions of this fort are determined folely by custom; not that cuftom poffeffes any proper authority to alter or afcertain the nature of right and wrong; but because the contracting parties are prefumed to include in their ftipulation, all the conditions which cuftom has annexed to contracts of the fame fort; and when the ufage is notorious, and no exception made to it, this prefumption is generally agreeable to the fact.*

If I order a pipe of port from a wine merchant abroad; at what period the property paffes from

*It happens here, as in many cafes, that what the parties ought to do, and what a judge or arbitrator would award to be done, may be very different. What the parties ought to do, by virtue of their contract, depends upon their confcioufnefs, at the time of making it: whereas a third perfon finds it neceffary to found his judgment upon prefumption; which prefumptions may be falfe, although the moit profitable that he could proceed by.

the