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6. Erroneous promises are not binding in certain

cases; as,

1. Where the error proceeds from the mistake or misrepresentation of the promisee.

Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity by a story of the most pitiable distress; you promise to relieve him, if he will call again:-In- the interval you discover his story to be made up of lies;-this discovery, no doubt, releases you from your promise. One who wants your service describes the business or office for which he would engage you;-you promise to undertake it: when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you: -In such case, you are not bound by your promise.

2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.

This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son;-soon after which, he promises his fortune to his nephew. The account turns out to be false. The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the casefor that alone will not do;--but because the nephew also himself understood the promise to proceed upon this supposition of his cousin's death; or, at least his uncle thought he so understood it, and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and, as he believed, in the apprehension of both parties; and this belief of his is the precise circumstance which sets him free. The foundation of the rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition therefore he intended to subject that expectation to, becomes an essential condition of the promise.

Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote;-presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out. But the promisee did not know this;-he did not receive the promise subject to any such condition, or as proceeding from any such supposition; nor did I at the time imagine he so received it. This error, therefore, of mine, must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain fortune with his daughter, supposing himself to be worth so much-his circumstances turn out, upon examination, worse than he was aware of. Here again the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory.

The case of erroneous promises is attended with some difficulty: for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude, which might evacuate the force of almost all promises: and, on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdity.

It has long been controverted amongst moralists, whether promises be binding which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this; whether mankind, upon the whole, are benefited by the confidence placed on such promises?-A highwayman attacks you-and being disappointed of his booty, threatens or prepares to murder you;-you promise, with many solemn

asseverations, that if he will spare your life, he shall find a purse of money left for him at a place appointed:-upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these, greatly facilitates the perpetration of robberies: they may be made the instruments of almost unlimited extortion. This is a bad consequence: and in the question between the importance of these opposite consequences, resides the doubt concerning the obligation of such promises.

There are other cases which are plainer; as where a magistrate confines a disturber of the public peace in gaol, till he promise to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are Dinding, because the violence or duress is just; but the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty.

Vows are promises to God. The obligation cannot be made out upon the same principle as that of other promises. The violation of them, nevertheless, implies a want of reverence to the supreme Being; which is enough to make it sinful.

There appears no command or encouragement in the Christian Scriptures to make vows; much less any authority to break through them when they are made. The few instances* of vows which we read of in the New Testament were religiously observed.

The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding; because the performance, in that contingency, became unlawful.

*Acts, xviii. 18; xxi. 23.

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CHAPTER VI.

Contracts of

CONTRACTS.

A CONTRACT is a mutual promise. The obligation therefore of contracts, the sense in which they are to be interpreted, and the case 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 any how 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 contracts, and the order in which we propose to consider them, may be exhibited at one view, thus:

Sale.
Hazard.

Lending of {Inconsumable property {Money.

Service.

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CHAPTER VII.

CONTRACTS OF SALE.

THE rule of justice which wants with most anxiety to be inculcated 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:

VOL. I.

9*

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, which 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 runs; as where a horse, in a London repository, is sold 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

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