The guar

consider this case as it would stand by the law of nature. dian then would have a right to the goods as the first occupant: and if out of mere bounty he should afterwards give them up to any relation of the intestate person, there could be no question of his having a right to such a part of the goods as would repay him what expenses he had made, and would satisfy him for what losses he had sustained by taking the custody of the whole, till the intestate's relation was capable of receiving them.

VIII. From this account of the obligations which arise The nature and from the general notion of a commission, we may easily obligations of a understand what are the obligations attending that parti- charge.

cular sort of commission, which is called a charge. If I undertake the charge of another man's goods, to keep them safe for him; I engage for nothing but my own diligence and fidelity. Whatever expenses therefore I may be at merely upon this account, he is obliged to repay me. In the mean time I am obliged to use the same diligence in keeping and securing his goods, that I would make use of in keeping and securing goods of the same value, if they were my own.

Upon this principle it will sometimes happen, that I ought to preserve his goods, rather than my own; not because a greater degree of diligence is due to him than to myself; but because his goods may be of more value than any which belong to me; and I am to use the same diligence in preserving his goods, that I would use in preserving my own, if they were of equal value. Thus, if I have a chest of gold or of deeds belonging to another man in my custody; I might be obliged, in case of fire, to secure those treasures, rather than any of my own common furniture.

On the other hand, if attempts have been made to break open my house, whilst I have the treasure of another man in my keeping, and I am therefore forced to hire a guard, not for the sake of securing my own common goods, which are not likely to have been the temptation; as this expense is undertaken upon his account, he is obliged to pay the wages of the guard.

There can be no question whether the nature of this contract allows me to make use of goods which are thus deposited in my hands, and which I undertook to secure. They were plainly lodged in my hands for the owner's benefit, and not for mine: they were to be kept for him, and not to be used by me. Neither can I claim the use of them, in return for my trouble in keeping them: if I had designed such a thing, might have mentioned it at first; and then, if he had consented to it, I might have claimed the use of such goods so deposited with me. But in the mere act of undertaking a charge, no such claim is understood: the act in its own nature is beneficial to the owner of the goods only, and is gratuitous on my part, unless I have taken care to make any express reserve to the contrary.

Indeed, where goods will not be at all the worse for using, as for instance, if I have a piece of plate in my custody, and only set it on my sideboard for ornament; the owner might be thought too strict, if he complained of me for making such a use of his goods. However, my charge has certainly given me no right to use his goods, even for such purposes as these. And if by thus letting it be publicly known that I have goods of value in my hands, the future custody of them should

become more expensive to me than it otherwise would have been; I do not see with what justice I could require him to bear these extraordinary expenses which I have brought upon myself, by doing what I had no right to do.

or make it com

mon.

Contracts of mu IX. *Contracts of mutual benefit are either simple or tual benefit either mixed. Simple contracts of this sort are either such as share the matter share the matter of them between the contracting parties, or such as make it common to the parties. Such contracts, as share the matter of mutual benefit between the parties concerned in them, may be distinguished into three sorts, agreeable to the third general division of contracts, which has been already taken notice of. The only ways of benefitting one another, are either by giving things in exchange for things; or secondly, by doing useful services in return for useful services; or lastly, by doing useful services in exchange for things.

This division of contracts will be better understood by applying it in some few instances. We will begin with bartering. This is a contract of the first sort, in which goods are given on one part for goods given on the other part. The contract does not unite the goods into one common stock, but all the goods on each side being considered as the matter of the contract, it shares or divides this matter between the parties concerned in it. Bartering may be considered in two different views. This contract could not be very like buying and selling, before the invention of money. Goods might then indeed be exchanged for goods, as horses for oxen, or sheep for corn: but there could be no other way of comparing them with one another, no measure of the price of them on either side, but what was taken from the use which one party might have for the goods of the other. If one person had many sheep but no grain, and another on the contrary had much grain but no sheep; each of them would make his own want of the other's goods the measure by which to determine what quantity of his own he would be willing to give for what quantity of the other's. But since the invention and use of money, bartering approaches so near to buying and selling, that there is scarce any difference between them: in the exchange of goods for goods, the goods on both sides are valued in money, and are compared with one another by this standing measure. If a man exchanges sheep for oxen, or wool for wine; he does not determine how many sheep he will give for an ox, or what weight of wool he will give for a hogshead of wine, by considering how little he wants the sheep or the wool, and how much he wants the ox or the wine: but he estimates the value of the goods on both sides in money, which is the common standard of price.

There is another contract of the same sort, to which the name of exchange is appropriated, a contract of giving money for money. I do not mean, when money is given for a medal or some scarce coin, which is matter of curiosity; for this is buying and selling: but when current coin of one sort is given for current coin of another sort, as gold or silver coin for copper coin; or when current coin of any sort is given in one place for current coin of any sort to be paid in another place; as when I give a man a certain sum of money at my own

• Grot. Lib. II. Cap. XII. § III.

home, and he is to give me, or to pay for my use, a certain sum of money in London or Paris.

Giving cash for bills cannot be strictly reduced to this head; because he who gives the cash and takes the bill, gives something more than the cash: he gives his trouble in negotiating the bill, and runs some hazard, if the several parties concerned in the bill should become insolvent whilst it is in his hands. So that if we consider the bill as money, he for this money gives his own money and his work besides, and does likewise in some sort ensure the bill.

The contract is still of the same sort when money is given for goods; and the name of this contract is buying and selling. The money and the goods are the matter of the contract; and the contract shares this matter, or divides it between the parties concerned, and gives each of them property in his particular share.

Of the same sort are those contracts, in which the use of goods is given for the use of goods: as if, for instance, a person has the use of my house in town, and I, in exchange, have the use of his house in the country. The use of the houses is the matter of the contract; and it is the business of the contract to share this matter between the parties, and to adjust their respective claims upon it.

In like manner the use of goods may be given for money: this contract is still of the same sort, and is called letting or renting. Nor is it a different contract when the use of goods is given for goods, as when I let my estate, and bargain to receive the rent of it in cattle, or wheat, or malt.

It is not possible to reckon up the several contracts which share the matter between the contracting parties, and fall under the second head of contracts, whereby useful services are exchanged for useful services. They are as numberless as the actions are, by which one man can promote the pleasure or profit of another. In general, we may observe, that in all these contracts, the work or service on both sides is the matter of the contract; and that the effect of the contract is to assign to each party the work which he is to do, and to give the other a claim upon him to do it. Contracts, therefore, which are purely of this sort, so that things are in no respect any part of the matter of them, are mutual alienations of liberty: each party obliges himself to do some work for the benefit of the other, or each party gives the other a demand upon his person.

Under the third head, where things are exchanged for beneficial services; though the beneficial services which may be performed are numberless, yet the things which are given for such services, must be goods either moveable or immoveable, or money, or the use either of goods or of money. The beneficial services and the things to be given for them are the matter of such contracts: and the effect of the contract is to assign each party his share of this matter, or to settle what things one of the parties shall have a right to claim, and what services in return the other shall be entitled to. When money is given by one party in consideration of the other party's undertaking to preserve his goods from accidents, it is called insurance. When money is given for common or daily work, it is called letting and hiring.

The second sort of contracts of mutual benefit are such as make the matter common to the parties concerned in them, or give the contract

ing parties a common claim to it. The general name of all contracts of this sort is partnership: and the matter of them may be either things or actions, or both. When two or more persons join money, or goods, or labour, or all of these together, and agree to give each other a common claim upon such joint stock, this is a partnership.

All wages, or gaming of any sort, come under the notion of partnership. The stakes, that is, the money or goods laid down on each side, are a joint stock, upon which the parties concerned in the wager or game have a common claim, till the wager is decided, or the game is over. This partnership was originally intended to be of no longer continuance: the parties agreed from the first, that some uncertain event should put an end to it in such a manner, that when it ends, the stock, which was in common before, shall not be divided, but shall become the sole property of one of them.

Lots, indeed, are made use of in other instances where there is no partnership, and no such common stock: but then in these instances there is no contract. If a nation should determine itself by lot in making choice of judges in the assigning of provinces, or in the disposal of any other offices, this is no contract; it is only the method which the public fixes upon for choosing one out of many competitors, in order to avoid the ill will of those who are disappointed: and the right which the fortunate competitor has to his office, does not arise from any other contract, but the appointment of the public.

contract.

X. Contracts are, in some respects, subject to the Incapacity of either party to be same rules with promises: all the parties contracting obliged voids a must have the use of their understanding and of their will, or otherwise the contract will be void. I say all the parties must have these qualifications: because, as a mutual obligation of the parties on both sides is essential to contracts, where one of them is under any incapacity of obliging himself, the other cannot be obliged. In what manner fear or error affects a contract will appear from taking a more particular view of the equality naturally required in all mutual contracts.

What the equality XI. *It has been shown already, that neither of the required in con- parties in a contract can claim any right by virtue of it, tracts consists in. which the other does not consent to transfer to him. And it appears from the nature of contracts of mutual benefit, that neither of the parties has, or can be supposed to have, any design or intention of transferring any right to the other without receiving an equivalent. From hence it follows, that when either party has received more than he has given an equivalent for, he has received what the other never designed or consented should be his: and consequently, as he has no claim to what he has so received, the contract is either void or must be corrected, that so he who has too little may either have his own again, or else may have amends made to him.

It may indeed be said, when I have bought goods and have paid the money for them, that by my act of parting with my money and taking the goods, I plainly showed my consent to transfer my property in the money to the seller, upon condition of his transferring his property in the goods to me. But the answer to this is obvious: in buying and

* Grot. Lib. II. Cap. XII. § VIII.

selling, it is well known, from the very nature of the contract, though our words may not express so much, that neither the buyer nor the seller intend to give each other any thing as matter of mere bounty, but only upon supposition of each receiving an equivalent for what he gives. If therefore I buy goods, I transfer the property in my money to the seller, upon supposition, that I receive an equivalent for what I so transfer, and not otherwise. So that if this supposition fails, if I do not receive an equivalent, the condition fails, upon which alone I consented that the money should be his. For this reason, though he may be in possession of the money, he has no right to it: he can have no right to it, unless I consented to give him such right; and I never consented to give him such right but under the condition just now mentioned. In like manner, if I hire a house or lands, that is, if I purchase the use of them; my intention, according to the nature of this contract, is, that I will give the owner nothing without receiving an equivalent for it. There is nothing of mere bounty in contracts of this sort; each party designs to receive as much benefit as he gives. Whatever rent therefore the owner of the house or lands receives of me, I consent to make it his, upon supposition that I receive the value of it in the use of his estate. If then this supposition fails, though he may have gotten possession of my money, it is not his; because it cannot be his without my consent, and I consented to make it his only upon supposition of my receiving an equivalent, which I have not received. The same reasoning may be applied to other contracts. If I hire a man's work or service, this is not matter of favour or bounty on either side. The nature of the contract shows, therefore, that I design to receive an equivalent for the wages which I am to give him: and consequently that I consent to make the wages his, or to give him property in my money only upon this condition. Unless then I do receive an equivalent for my money, the condition fails upon which alone I consented to make it his: and upon that account he has no claim to the wages for which we bargained.

Now, in order, as far as may be, to secure an equivalent to each party, in contracts of mutual benefit, it is necessary that they should treat with one another upon an equal footing; and their thus treating upon an equal footing is what we call the equality required in contracts. This equality relates either to the acts or to the matter of the contract. The acts in which equality is required, are either those which are previous to the contract, or the principal act of contracting. XII. *Before the contract is entered upon, it is pre- Equality in the viously requisite that each party should be equal to the previous acts reother as to his knowledge, or that whatever faults one ledge and freeof them knows of in the thing or the service, concern- dom.

lates to know

ing which they are about to bargain, he should discover them to the other. For any fault in the matter of the contract which either party designedly concealed from the other, will make the contract void, by preventing the other from receiving his equivalent.

You sell me goods at a certain price, which would indeed be the true price of the goods, provided they had no concealed faults, but you know that they have such faults, and do not discover them. The goods

*Grot. Lib. II. Cap. XII. § IX.