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of the subject is original ; at least, we have never seen it elsewhere so clearly stated or fully developed. The ancient civil law proceeded on the principle, that every fair contract was made upon the mutual understanding of the parties, that an equivalent was given and received for each, and of consequence, where the bargain was unequal, and one party did not receive an equivalent for what he parted with, the losing party had a right to insist that the contract should be annulled. In practice it was found impossible to enforce this doctrine to its theoretical extent. Courts of justice could not be troubled with the complaints of every man who had made a bad bargain ; but the principle was still retained, and applied to cases where the inequality of the contract was strikingly apparent; and by the Napoleon code, sales of real estate may be rescinded whenever the price does not amount to five twelfths of the value ; and this, even although the vendor had expressly renouned the right to rescind the contract.
The common law never adopted this principle of the civil law, but held, that inadequacy of price (unless it were so gross as to be evidence of fraudulent imposition) was no ground to annul a contract. By an inconsistency, however, from which the law is not wholly exempt, the courts of equity frequently refused to enforce the specific performance of a contract, on the ground of its inequality.
Mr. Verplanck shows, with great clearness, that there is not, in strictness, any such thing as adequacy of price, equality or inequality of compensation. A fair bargain does not, in fact, proceed upon the notion of mutual equivalents. Each party intends to gain something, which, to him, is more valuable than that which he parts with. If a farmer sell to a manufacturing capitalist a few acres of land comprising a water privilege, at a hundred dollars the acre, each would probably make an excellent bargain; the manufacturer certainly if his business succeed, and the farmer also, because the money is worth more than the land for cultivation. The principle is very fully exemplified by Mr. Verplanck. It is evident, that with regard to articles of luxury or fancy, or which, from particular circumstances, are strongly desired by individuals, though not much in demand for general use, there can be no such thing as adequacy of price. The article is worth just what it can be sold for-ten dollars, or a hundred thousand pounds. The same principle, in fact, applies to staple articles, which form the basis of frequent traffic. The poet understood the true doctrine when he asked Vol. II.
6 What is the worth of any thing,
But so much money as 'twill bring ?” The difference is, that in regard to staple articles which are produced and consumed in great quantities, the principles of demand and supply which regulate all prices, operate with more regularity; in regard to them there is what is called a market price, and Mr. Verplanck justly concludes, that a material variance from that price affords å presumption of fraud or unfairness, which ought to annul the contract, unless particular circumstances can be shown, to prove that the transaction was in truth a fair one. If a baker ask and receive from a stranger two shillings for a loaf of bread, when he would sell the same loaf to a customer for one shilling, and the stranger might obtain a similar one elsewhere at that price, this is a manifest fraud, and the simple fact of the excess of price, without any other evidence, proves it such, and such frauds ought to be corrected by law.
Every part of this essay bears evidence that its author is a liberal minded man, who has thought for himself, without an excessive regard to what men of great authority have thought and said before him, and who gives his thoughts to the public, because he believes them valuable. To furnish a proof of this to our readers, we are tempted to swell this article by an extract from a passage in that book which the writer terms a digression, though it is hardly such.
“ If the positive regulations are few and simple, and drawn from the actual usages of society, and in conformity with our modes of thoughts and habits of business, they soon become well known; not certainly to all—but to all who have much occasion to use them. They then enter silently into all negotiations, they make a real as well as a technical part of them, and thus positive law and natural justice coincide.
6 The law-merchant of the modern civilized world, as to negotiable paper, affords an admirable example of this. Among millions of daily transactions, there but now and then occurs an instance where the parties were not sufficiently aware of their legal rights and responsibilities, and where the courts by applying the rule of law would not in fact execute the true intentions and undertakings of the maker, acceptor, or endorser.
“ But if a little of the artificial reasoning and technical subtilities to the cominon la:v doctrine of real estate, had been at an early period introduced into this branch of the law-merchant-and it would have needed nothing but a little ingenuity, and the sanction of one or two venerable names to have done it-the negotiation of a bill of exchange would have become as mysterious and technical an affair as a deed of trusts and settlements ; no unprofessional man could have told what his précise engagements and responsibilities were ; while courts, in innumerable instances, would cease to administer justice, and would afford protection to fraud.
66 Thus we come to the broad conclusion, that the law can never justly and wisely vary from the rule of private honesty, unless when the necessity of public good requires it, and then so far, and no father, than that necessity demands. Great men have told us that it is of special little consequence what the law is, provided it be certain. Its provisions, say they, become known, and men govern themselves accordingly. This is
“ No matter how certain and precise the law may be, if in its intention it be a capricious and useless departure from the rule which unaided common sense would prescribe to an intelligent individual; or if in aiming at a reasonable and justifiable ultimate object, it uses as the means, regulations abhorrent to the usages or even to the prejudices of the people, or unnecessarily formal, technical, and remote from the reason of common life, then the law never becomes known to those whose affairs it regulates.
“ The crafty and knavish do know it, and they use it for their own ends. The simple and the ignorant are injured, and can find no redress. The contrast between technical sense and cominon sense becomes harassing and perplexing to all. There is one rule of honesty with our baker and butcher, and another in the stock exchange, the horse-market, and the courts. The law loses public confidence, and its ministers their just title to respect
The courts of justice are crowded and oppressed with a mass of litigation, from questions which in a simpler jurisprudence would never have arisen. Fraud often triumphs over honesty ; but the better sense and the better feeling of mankind cannot always be perverted, and in hard and extreme cases, judges sometimes, and juries oftener, will bend or break the law to their own irresistible notions of equity. Thus finally vanishes that very certainty, which is so boldly lauded as an adequate substitute for justice.
“Every unnecessary deviation in law from what is just in morals, is unjust. Yet such is the force of early prejudice, that great jurists, who have been able and eloquent in inculcating the natural supremacy of equity and reason, over positive rules and irrational customs, and who, while they have evinced a profound knowledge of the philosophy of jurisprudence, have been most skilful in its practical application, have conceded that legal systems without better foundation than precedent and accident, may be as useful as any, though less pleasing to the student, and less beautiful in the scholar's eye.
“ If law,' says Sir William Jones, “be a science, and deserves that sublime name, it must be founded in principle, and claim an exalted rank in the empire of reason. But if it be merely an unconnected series of decisions, its use may remain, though its dignity be lessened.'
“ The first position is worthy of the noble spirit and sound intellect of this wise and high-principled lawyer. But if the law of any nation be 'merely an unconnected series of decisions, its use does not, and cannot remain. It ceases to be the reinedy of the injured, and the shield of the weak. To the ignorant it becomes a snare, but a weapon to the wrongdoer.
“ Lord Mansfield has termed Socrates the great lawyer of antiquity; since,' said he, the principles of all law are founded in philosophy.' The philosophy which Socrates taught, and where Mansfield sought for the principles of jurisprudence, was that of common sense and moral rea
Nor can the law fulfil its true uses, if it rests upon any other basis. Place it upon any other foundation, and what is it? A system whose language, reasons, and distinctions, are totally dark and mysterious to all but those whose daily business it is to study them,—very imperfectly comprehended by the most of these ; natural and beautiful to none but a few antiquarian rabbis. All its doctrines, axioms, maxims, and adages, become malleable to the caprice of the bench. They are flexible in the hand of the judge upon whom public opinion is no check, and whose reasoning is unintelligible to all but the bar."-pp. 169–173.
We are tempted to state an instance which fell within our recent observation, of a case which will tend to show the remote and unexpected mischiefs which arise, from the introduction into jurisprudence of arbitrary, senseless, and unnecessary forms. When these exist, their origin will always be found to be remote ; the reason has passed away, but the forms remain. About the time of the Norman conquest, (probably,) some person who had lost goods which another had found and refused to deliver, applied to a court of justice for a proper writ to obtain redress in such a case. The clerk of the court devised a writ suitable to that case, wherein the plaintiff alleged that he had lost, and the defendant had found, (trouvé) the property in question. This answered very well for that case ; but this form having been once devised and used, was not to be laid aside, but to be applied to all other cases, whether similar or not. The “flexibility” or “accommodating principle” of the law is shown, not, as one unskilled in legal mystery would think it should be in accommodating the remedy to the case, but in forcing the case to correspond to the pre-existing remedy. Accordingly the next man who came to the clerk's office, to obtain a writ for the
purpose of recovering compensation for property in the possession of another which he claimed, was forced to allege that he lost, and his adversary found it, although in point of fact there was no losing or finding in the case ; and from that day to this, in cases of disputed personal property, a party always may, and generally must allege, that it has been lost and found, or in other words, the form of action is trover.
Again ; the law abstractly, and without any regard to the real merits of the case, considers certain forms of action as “sounding in tort,” (to use its own elegant phraseology,) that is, that where an action of such a form can be sustained, the defendant is guilty of a tort, or wrong; and a distinction is made between this and a case of debt or contract. Now, in trover, the allegation is, that the defendant found the plaintiff's goods, and knowing them to be such, converted them to his own use; and this allegation is legally proved if it be shown that
the property belongs to the plaintiff, and is withheld by the defendant, whether innocently or not. The case alluded to, and by no means a rare one, is this : a gentleman purchased a vessel at a fair price, which he paid. It appeared, that several years before the same vessel had been sold under judicial process, (but irregularly ;) several subsequent sales intervened, but the former owner came to claim his property. He brouglit an action of trover, and recovered. The defendant had been unfortunate in business; had assigned all his property to assignees duly appointed, and had been discharged agreeably to the provisions of an insolvent law. But the law only provided, that the insolvent should be discharged from his contracts or debts, and not from the torts or wrongs he had committed, and as, according to law, he was a “ tort feasor,” [wrong doer,] judgment must be rendered against him, notwithstanding his discharge.
We had intended to have laid before our readers an analysis of this work, but we find, after proceeding so far, that we have accomplished very little in that way, and it is now too late. This is the less necessary, as it has been done by the author, and we cannot better close this article than by stating the results to which Mr. Verplanck has arrived, as given by himself.
“ The doctrine of Contracts may be thus summed up : " A CONTRACT is an agreement, by which one or more persons undertake, with one or more others, to do or not to do a certain thing.
“A contract is cominutative, or one of reciprocal interest, when one of the parties undertakes to do or to give any thing which is regarded by both as the inducement, or motive, for the giving or doing some other thing by the other party:
“When the indueement on either side, or both, consists of the chance of gain or loss for either, depending upon the occurrence of an uncertain event, this is a contract of hazard.
“The terms of most contracts of reciprocal interest are regulated with reference to value in exchange, which, when estimated in money, is called Price.
“ The Market Price of any thing is the ordinary price at which things of the same kind, and fit for the same uses, sell or would sell at the same time and place, among those whose demand causes their value in exchange or in sale, and those by whom they are commonly supplied.
“ Things wholly peculiar, or which are not susceptible of a regular supply, in proportion to the demand for them, have no market price, but their price depends solely on the wishes and means of the buyer and seller.
“ A price agreed upon honestly, with full knowledge of all material facts, is always a fair price between the parties, however excessive or inadequate it may appear to others.
“ Bu : If in any contract or sale the price of the thing sold or done, or to be done, be much greater or less than the market price at which things