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PART II.

SECT. X.

Hence we may conclude, that a perfon being made to rely on CHAP. III. the confent of another, to constitute or to reduce a right, is not bound to fuffer by the other's breach of faith; but may proceed on the principle of felf-defence, to force the performance of a promife which makes a part of his ftate; and the principle upon which a perfon, who has come under any engagement, may be forced to fulfil that engagement, is the fame with that maxim, on which he may be forced to abstain from injury, or harm of any other kind; infomuch, that the first principle of compulsory law, which is in appearance merely prohibitory, may branch into a variety of duties or obligations to do, or to omit to do, whatever may be a fit matter of ftipulation betwixt any two or more parties concerned.

To fail in the discharge of fuch duties is, on many occafions at least, termed perfidy or breach of faith, and confidered with a higher degree of abhorrence, than even the injuries that are done by open force. This may, no doubt, proceed from circumstances peculiar to fraud and deceit. The traitor must have carried the mask of innocence to have obtained credit; he has stolen an advantage which he had not the courage openly to force. The contrast of fraud with the mask of innocence, which it wears, the cowardice which is imputed to the person who affumes that mask in order to wound, combine together in awakening the peculiar fentiment of indignation and hatred, with which perfidy or breach of faith is confidered; and which, though they do not make any addition to what is at prefent the object of our difcuffion, namely, the right of every person to defend himself against such wrongs; yet

they

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CHAP. III.
SECT. X.

they tend greatly to evince that the fource of conventional obli- PART II. gation is much more deeply laid than the mere confiftency of words and actions, upon which it is founded by the philofopher n now mentioned.

VOL. II.

Ff

110

SECTION

SECTION XI.

Of the Laws of Convention derived from the foregoing Principle.

PART. II. FROM the account which has been given of conventional right

CHAP. III.

SECT. XI.

and obligation, it appears that compact, in every inftance, implies a plurality of parties, one at least who comes under an engagement, and one or more to whom the engagement is made, and who accept of it. The first may be termed the party contracting, the other the party accepting.

In many bargains, the parties may be mutually contracting and accepting; as when one party binds himself to convey a property, accepting a price, and the other binds himself to pay the price, accepting the property. But it is not, at present, or in the profecution of this argument, neceffary to confider the parties to a compact in this double capacity.

From the principle stated, it is evident, that to give a supposed compact the effect which we have afcribed to it, in constituting

a

a right, on the part of one, or an obligation, on the part of another, it is neceffary that the accepting party fhould be made to expect a performance, and that the contracting party fhould have intentionally done fomewhat fufficient to give fuch expectation.

Without an expectation formed, there is no object of exaction; and, without a perfon who has intentionally given cause for that expectation, there is no one against whom the exaction may be enforced.

Agreeably to this decifion, it appears, that, although the contracting party may have done what was fufficient to create an expectation, yet if the other party fhould not, at the fame time, do what is fufficient to make known his acceptance, there is in reality no obligation to perform.

The tranfaction, upon this last fuppofition, amounts to no more than an offer; and, as the party offering has no intimation. of its being accepted, he is at liberty to change his mind, or may have recourse to fome other party willing to accept of the offer he has made.

It follows, alfo, that as a fuppofed contracting party is not bound to performance, where acceptance is not fufficiently notified, no more is he bound to fulfil any falfe expectations for which he has not laid a foundation.

Upon the principle of convention, fo explained, we may ground the following law:

That, To conftitute a valid contract, is required the mutual confent of parties, acting freely, and in the exercife of their rational faculties; Ff2

and

PART H.
CHAP. III.

SECT. XI.

PART II. and with fuch means of communication as are fufficient to make known their thoughts and intentions.

CHAP. III.
SECT. XI.

In the municipal law of different countries, the forms of convention are prescribed, as in bonds, bills, or promissory notes, which constitute a debt; deeds of conveyance, articles of fale, and fo forth. So that, upon the difagreement of parties, the queftion at iffue may be determined by a third party; that is, by the judge before whofe tribunal the reality of the obligation may come to be tried, and who must collect the fenfe of parties from the form in which they were pleased to exprefs their agreement. But, as the prefcribed form may fometimes have been observed, where there is nevertheless fufficient cause to fet afide the contract, fuch cause may be taken into confideration, under the title of an exception, and is often fufficient to repel the plea of the party, who claims the performance of an article, however ftipulated in the legal form.

Such exceptions, in the municipal law of any country, are or may be enumerated under the titles of incapacity, force, fraud, injuftice, and impoffibility.

Incapacity may be pleaded against the validity of an obligation, when it appears, that the party, fuppofed to have confented, was not in the exercife of his reafon at the time. Force may be pleaded, when he was known not to act freely; and fraud, when he was known to be deceived; more especially if the force or the fraud had been employed by the person who afterwards claims performance of the article so obtained.

These exceptions are matter of just and neceffary confideration in courts of law, as a judge, if directed merely by the forms

prescribed,

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