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CHAP. III.
SECT. XI.

a right, on the part of one, or an obligation, on the part of ano- PART H.
ther, 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 decision, 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 laft 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 exercise of their rational faculties; Ff2

and

CHAP. III.
SECT. XI.

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

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 question at issue 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 sense of parties from the form in which they were pleased to exprefs their agreement. But, as the prefcribed form may fometimes have been obferved, where there is nevertheless sufficient cause to set aside 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 stipulated 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, supposed to have confented, was not in the exercise 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 efpecially if the force or the fraud had been employed by the person who afterwards claims performance of the article fo obtained.

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

prescribed,

prescribed, might be misled to sustain an obligation where it is not PART II. CHAP. III. properly constituted. But, in difcuffions of the law of nature, where SECT. XI. a contract is fuppofed to confift, not in any prescribed form or mode of expreffion, but in the mutual affent of parties, acting freely and in the exercise of their reason, the exceptions of force and fraud are precluded in the definition itself; and, where the fact does not correfpond to the definition, what we contend for is not an exception, by which to fet aside a contract fuppofed to fubfift, but is a negative plea, by which we deny that any contract ever did exift.

The infane or incapable can raife no expectation. A perfon forced or deceived into a bargain, cannot be expected to fulfil that bargain, when he is at liberty, or has detected the fraud that was employed to mislead him. He may consider the person who employed fuch means to circumvent him, as guilty of an injury; and may think himself entitled to reparation, instead of being bound to perform the articles of a bargain fo obtained.

There may, however, be a real affent of parties to an article of compact which may afterwards appear to be either injurious to the right of fome third party, or in the nature of things impoffible; and in every fuch cafe, there is a real ground of exception, even upon the general affumptions of the law of nature.

The exception of injuftice may be pleaded to ftop execution of an article injurious to a third party, and that of impoffibility to fave the party contracting from fruitlefs attempts to perform what cannot be done.

Under these titles of injuftice and impoffibility, confidered as exceptions to a contract, a variety of cafes may be fuppofed.

PART II.

CHAP. III.

1, That neither party, at the time of ftipulating, was aware SECT. XI. of the injuftice or impoffibility. In this cafe the decifion is, that both parties are bound to drop their petenfions as foon as the exception is known.

A fecond cafe may be fuppofed, where only one of the parties, at the time of ftipulating, knew of the exception. If the contracting party alone knew that he was engaging himself to commit an act of injuftice, he is injurious to the party against whom the wrong is directed. If he alone knew that the performance was impoffible, he is unjust to the party accepting, in whom he has endeavoured to raise a vain expectation.

If the party accepting alone, knew that the performance would be unjust, he is, in accepting the offer, injurious to the party likely to fuffer. If he alone knew that the performance to which he engaged another, was in the nature of things impoffible, his acceptance of fuch engagement was an injury to the person whom he induced ignorantly fo to engage himself in fruitless attempts.

A third cafe may be fuppofed in which both parties knew of the exception at the time of making their agreement. If the article ftipulated was by both parties known to be injurious to a third party, the agreement amounted to a confpiracy against the perfon concerned. If the article was known by both parties to be impoffible at the time of stipulating, there may have been a purpose, by fuch fham transaction, to impose upon fome third party, or else the proceeding must be judged altogether irrational and abfurd.

In every contract must be fuppofed a fufficient mode of communication

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CHAP. III.
SECT. XI.

munication between the parties. Language, whether in fpeech PART II.
or writing is the most common, but any other means of ex-
preffion, fuppofed to be mutually understood, will be equally
fufficient upon
the principles of the law of nature, to establish a
conventional, obligation, or right; gestures of any fort understood
as figns of declaration or affent; a continued course of action;
even fingle actions may, upon this principle, not only be conceiv-
ed to express a meaning, but are actually fuftained as fufficient
expreffions of affent before the courts of law in every civilized
nation.

Hence the effect of custom every where admitted as part of the common or the municipal law. Hence the obligation contracted by a shopkeeper, to fell the goods in his fhop to those who will pay his price, and the obligation of a person who takes the goods, to pay that price. Hence the obligation of an inn-keeper to accommodate paffengers; and the obligation on passengers to pay their bill; although neither one nor the other made any verbal declaration to that effect.

In the ordinary course of things, we look to the future as a continuation of the past, and confider the custom of the country in which we refide, as an affurance of the terms on which we live with the people of that country.

It is evident in particular, that custom may be pleaded against those who take the benefit of it, where it is favourable to themfelves; and who, therefore, may be reasonably supposed willing, in their turn, to comply with it, where it is favourable or beneficial to others.

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