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of price, or as the civilians express it, enormous lesion. This rule is confined, in its application, to the sale of real property ; it being obviously quite impossible to adapt it to commercial transactions and the ordinary transfer of chattels. It also denies to the buyer that equity, which it professes to extend to the seller, by refusing to the former any relief on account of his having paid an excessive price. It made a part of the anterevolutionary jurisprudence of France, and has been incorporated into the new civil code of that country, notwithstanding the opposition of some of her most distinguished jurists, as Mr Verplanck thinks, on account of temporary, political motives, connected with the policy of giving stability to landed titles and family distinctions, which had been so much shaken by the revolution. It is recognised, we believe, in the civil code of Louisiana; and something like a reference to it may be obviously traced in that part of the Equity system in England, which considers gross inadequacy of price as evidence of fraud.
It is not the least evidence of the wide spread influence of the Roman law in modern times, that all the writers
the law of nature and nations should have adopted this principle of absolute equality in contracts, as binding in foro conscientiæ. But the author of the work before us justly contests its application to this extent, even as a rule of moral obligation; and, in a train of admirable reasoning, shows, in the most convincing manner, that if practically followed, it would deprive every man of the honest fruits of his superior knowledge and skill, of his diligence and labor, and of all those advantages, which a beneficent Providence has enabled him to acquire, and authorized him to enjoy ; and, in this manner, would present an insurmountable barrier to the improvement of the world, by taking away the ordinary motives of individual exertion. This he accomplishes by proving, that in ordinary commercial bargains, the exchanging of precisely equivalent values is not even aimed at, or desired, by the parties; and by analyzing the various circumstances, which go to fix the price of commodities, such as constant competition, monopoly founded on public policy, or the just use of private property, soil and seasons, peace and war, and all the various and fluctuating phases of human affairs, as they are influenced by physical, moral, and political circumstances.
After thus seeking in vain, in the two most memorable systems of municipal jurisprudence, which have governed the world, as well as in the celebrated writers on natural and public law, for a
VOL. XXII.-N0. 51.
satisfactory rule of contracts, so far as respects inequality of price, or inequality of knowledge, Mr Verplanck, in his fourth chapter, endeavors to deduce such a rule, not merely from the abstractions of metaphysical morality, but from the sound principles of that true science, political economy, which, he contends, influence the motives, and determine the conduct of every buyer and seller, although the parties may not always be conscious of the precise nature of their operation on their own minds.
He begins by inquiring • What is PRICE? What are the elements, which form it? What, abstracted from all reference to right and wrong, are the common considerations which enter into the minds of the buyer and seller in making a bargain?' And concludes, that as to things which are unique, or very peculiar in their kind, of which there is no regular supply from the soil, or from human labor, and of course no regular market value, price depends wholly on the opinions and the means of the buyer and seller, and consequently there can be no such thing as inadequacy of price. The same rule, also, applies to the buying and selling of speculation, to purchases of lands peculiarly situated, or goods bought, not with reference to present use or profit, but with relation to a future and anticipated state of the market. But in the more common case of the buying and selling of articles of domestic use or consumption, or in the wholesale operations of trade in the great staple productions of agriculture or manufactures, the new element of market price enters into the calculations, both of buyer and seller, which are no longer controlled by their separate wishes, opinions, and judgments alone, but also by a set of facts common to both, and upon which they mutually reason.
In this class of cases, inadequacy of price may be a ground for setting aside a contract of sale, not from the inadequacy of the price, as compared with the intrinsic value of the article, but as compared with the ordinary market price of the time and place of making the contract. A gross deviation from this standard may imply fraud, or error, in the substance of the contract. But what is it that constitutes fraud, or error, so as to affect a contract in natural equity and morality? The answer to this question is, that no man can ever honestly profit by his superior knowledge, wherever there is a confidence expressly or impliedly reposed in him, that he will take no advantage of it, and wherever this confidence is the efficient cause of his being able to take such advantage. Whatever constitutes the facts and
reasonings of a bargain peculiar to each individual, such as skill, and judgment, and personal necessities, can never be expected to be communicated; but with regard to the facts which are, or should be, common to both parties, and which immediately and materially affect price, in the estimate of those who buy and sell, the contract is entered into upon the supposition, that no advantage will be taken by one party, of his superiority of knowledge over the other.
In his fifth chapter, the author continues the same subject, and recapitulates the rules and principles established in the preceding chapter, applying them to all contracts of mutual benefit, contracts of hazard, cases of mutual error, and implied warranty of sort and quality, and considers the different effects of error and of intentional concealment. The next contains a long digression on the question, When, and how far, may positive law, in administering justice between man and man, differ from the strict honesty and good faith required by conscience?' He concludes, that it can never be either right or expedient for civil tribunals to establish rules of justice, varying from those pronounced by the tribunal of conscience, unless when compelled by absolute necessity, or manifest public utility; and in the seventh chapter, he endeavors to show, that the strict rules of honesty, regarding inequality of knowledge, or of price, &c. ought to be the governing principles of the whole law of contracts. This he infers from their partial adoption in the law of insurance, in the doctrines of courts of equity, and in the Roman civil law. And he insists, that the only exception to the generality of this position is to be found in the acknowledged fact, that human tribunals must be guided in their application of these doctrines of legal ethics, as well as restricted in the practical remedies they furnish, by those regulations which public policy has established, as to prescription or limitation, the civil character and condition of parties, uniformity of decision, commercial usage, and positive rules of evidence.
Wherever these principles of morality have been adopted, in the practical administration of justice, they have commanded the unqualified approbation of men of common sense, and those versed in the business of human life, as well as of those master minds, who have looked at law as a science, founded upon principle and governed by reason. Such is the case with the whole body of the law of insurance, with all those heads of equity jurisdiction, arising from the peculiar relation of confidence and trust between certain parties, which we have before adverted to. So, too, the common law courts have remarkably deviated from the general analogy of their own rules, and obeyed the dictates of the purest morality, in that class of cases, which relates to the payment of forged bank notes, or negotiable paper, where both the parties are equally ignorant of the forgery.
If, then,' says Mr Verplanck, these principles are just in themselves; if they are congruous to the common notions of men; if they are capable of being practically applied ; if, in the affairs of the greatest magnitude and interest, they have been found not only expedient to be used as legal rules, but even absolutely necessary, why should they not be universal? why should that part of our law, which enters into and affects every man's daily concerns, be disgraced by contradictions, which, if they were nothing more than deviations from the rest of the system, would be useless and perplexing? How much worse, if these deviations afford shelter for dishonesty, if they are repugnant to the usages of trade, and the common reasonings of civilized men?' p. 195.
The eighth chapter contains a view of the practical result of those doctrines of law and equity, which arbitrarily vary from the rules of natural justice, their confusion and contradiction, and the bad effects they have produced on the public morals. Allusion is made to the liberal spirit of legal improvement, which is now abroad in the world, and a strong desire is expressed, that it should embrace the law of sales. In the opinion of the author, no more practical or beneficial innovation could be made in our civil jurisprudence, than to introduce the rules of the Roman law, as to implied warranty of quality and kind. This he would have done, not piecemeal, or in insulated decisions, which only create confusion, but thoroughly and upon principle.
The principles of the ancient civil law, and the modern European codes founded upon it, might be embodied in the language of our own system of jurisprudence, by merely expanding into general provisions, what has already been decided in numerous particular cases. With this view, the author recapitulates, in his eighth and last chapter, the principles and rules, which his arguments tend to establish. These, we presume, he did not mean to offer, as the project for the text of a written code on the subject, for it would then be deficient in that precision, which is so difficult, and at the same time so nccessary 10 be attained in every system of written law; but only as a
summary of his own principles and views. Considered in this light, we regard this collection of axioms and corollaries as of great value, exhibiting the ingenious theory of the author in a condensed form, and illustrating his reasonings in support of it. We regret that we have not room to insert this summary, which would probably convey to our readers a clearer notion of the author's views, than will be gathered from the imperfect analysis we have attempted of a work, which we regard as one of the most original and interesting publications upon the theory of jurisprudence, that has recently appeared.
We heartily concur in the wish, expressed by Mr Verplanck, that it may excite public attention to the improvement of this title of the law of contracts, and we will add our desire, that he may
be induced, by the success of the present attempt, to turn his attention to other projects of reform in legislation. An attentive examination of several titles of positive law, such as the statute of frauds and limitations, for example, would tend to expose the defects, uncertainty, and contradictions of the system of judicial interpretation, amounting in effect to legislation, which has perverted the original policy of these wise laws, and calls for a revision of their text, with the view of clearing up the obscurities, which originally adhered to it, or have been interpolated by the excessive latitude of construction, which has been indulged with respect to them. At the same time, we would not be understood as meaning to deny, that many excellent rules are contained in the body of judicial decisions upon these statutes, which would furnish valuable materials for a new builder to construct an edifice more harmonious in its parts, and better adapted to promote the purposes, for which it was designed.