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 by 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 he had a right to reimburse himself out of the pocket of the first traveller he met; the justice of which reasoning the traveller possibly may not comprehend. Where there exists no monopoly or combination, the market price is always a fair price; because it will always be proportionable to the use and scarcity of the article. Hence, there need be no scruple about demanding or taking the market price; and all those expressions, "provisions are extravagantly dear," "corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller. If your tailor or your draper charge, or even ask of you more for a suit of clothes, than the market price, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge dishonest: although, as the man's goods were his own, and he had a right to prescribe the terms, upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deat with his customers at a market price; because it is upon the faith and opinion of such an engagement, P that any one comes within his shop doors, or offers to treat with him. This is expected by the buyer; is known to be so expected by the seller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a syllable be said about it. The breach of this implied contract constitutes the fraud inquired after. Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fancy or conveniency, and that you will not turn yourself out of it under such a price; the price fixed may be double of what the house cost, or would fetch at public sale, without any imputation of injustice or extortion upon you. If the thing sold be damaged, or perish, between the sale and the delivery, ought the buyer to bear the loss, or the seller? This will depend upon the particular construction of the contract. If the seller, either expressly, or by implication, or by custom, engage to deliver the goods; as if I buy a set of china, and the china-man ask me whether he shall bring or send them to me, and they be broken in the conveyance; the seller must abide by the loss. If the thing sold remain with the seller, at the instance, or for the conveniency of the buyer, then the buyer undertakes the risk; as if I buy a horse, and mention, that I will send for it on such a day, which is in effect desiring that it may continue with the seller till I do send for it; then whatever misfortune befals the horse in the mean time, must be at my cost. And here, once for all, I would observe, that innumerable questions of this sort are determined solely by custom; not that custom possesses any proper authority to alter or ascertain the nature of right and wrong; but because the contracting parties are presumed to include in their stipulation, all the conditions which custom has annexed to contracts of the same sort; and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact.* If I order a pipe of port from a wine merchant abroad; at what period the property passes from the merchant to me; whether upon the delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto: upon the arrival of the ship in England; at its destined port; or not till the wine be committed to my servants, or deposited in my cellar, are all questions, which admit of no decision, but what custom points out. Whence, in justice, as well as law, what is called the custom of merchants, regulates the construction of mercantile concerns. CHAPTER VIII. CONTRACTS OF HAZARD. BY Contracts of Hazard, I mean gaming and insurance. What some say of this kind of contracts, that "one side ought not to have any advantage over the other," is neither practicable nor true. It is not practicable; for that perfect equality of skill and judgment, which this rule requires, is seldom to be met with. I might not have it in my power to play with fairness a game at cards, billiards, or tennis; lay a wager at a horse race; or underwrite a policy of insurance, once in a twelvemonth, if I must wait till I meet with a person, whose art, skill, and judgment in these matters, is neither greater nor less than my own. Nor is this equality requisite to the justice of the contract. One party may give to the other the whole * It happens here, as in many cases, that what the parties ought to do, and what a judge or arbitrator would award to be done, may be very different. What the parties ought to do, by virtue of their contract, depends upon their consciousness at the time of making it; whereas a third person finds it necessary to found his judgment upon presumptions, which presumptions may be false, although the most probable that he could proceed by. of the stake, if he please, and the other party may justly accept it if it be given him; much more therefore may one give to the other a part of the stake; or, what is exactly the same thing, an advantage in the chance of winning the whole. The proper restriction is, that neither side have an advantage, by means of which the other is not aware: for this is an advantage taken, without being given. Although the event be still an uncertainty, your advantage in the chance has a certain value; and so much of the stake, as that value amounts to, is taken from your adversary without his knowledge, and therefore without his consent. If I sit down to a game at whist, and have an advantage over the adversary, by means of a better memory, closer attention, or superior knowledge of the rules and chances of the game, the advantage is fair; because it is obtained by means of which the adversary is aware; for he is aware, when he sits down with me, that I shall exert the skill that I possess, to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adversary's hands, or by concerted signals with my partner, it is a dishonest advantage; because it depends upon means, which the adversary never suspects that I make use of. The same distinction holds of all contracts, into which chance enters. If I lay a wager at a horse race, founded upon the conjecture I form from the appearance, and character, and breed of the horse, I am justly entitled to any advantage which my judgment gives me; but, if I carry on a clandestine correspondence with the jockies, and find out from them, that a trial has been actually made, or that it is settled beforehand which horse shall win the race; all such information, is so much fraud, because derived from sources, which the other did not suspect, when he proposed or accepted the wager. In speculations in trade, or in the stocks, if I exercise my judgment upon the general aspect and posture of public affairs, and deal with a person who conducts himself by the same sort of judgment; the contract CHAPTER IX. CONTRACTS OF LENDING OF INCONSUM- WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconfumable, in opposition to corn, wine, money, and those things which perish, or are parted with in the use, and can therefore only be restored in kind. The questions under this head are few and simple. The first is, if the thing lent be lost or damaged, who ought to bear the loss or damage? If it be damaged by the use, or by accident, in the use for which it was lent, the lender ought to bear it; as if I hire a job coach, the wear, tear, and soiling of the coach, must belong to the lender; or a horse to go a particular journey, and in going the proposed journey, the horse die, or be lamed, the loss must be the lender's: on the contrary, if the damage be occasioned by the fault of the borrower, or by accident in some use for which it was not lent, then the borrower must make it good; as if the coach be overturned or broken to pieces by the carelessness of your coachman; or the horse be hired to take a morning's |