Nor does the owner's right depend on the expediency of the law. An estate on one side of a brook may descend to the eldest son, on the other side to all the children conjointly. The claims of both inheritances are founded equally in law, though the expediency of the law itself cannot be the same in both cases. But it will be said, that as the right of property depends only on the law of the land, a man may rightfully keep whatever the law will not compel him to restore; and by this rule, since, in some states, if a debt be not demanded for six years the law exonerates the debtor, he is not bound in duty to pay it; or if a minor contracts a debt which the law will not compel him to pay, he is not only legally but morally relieved from paying it. The answer in this and similar cases, is that no rule of law, intended for one purpose, is to be applied to another. For instance, this limitation of time was intended to protect men from demands so antiquated that the evidence of their discharge was probably lost. If then a man be ignorant or doubtful on this point, he may with strict justice plead in bar the legal limitation, but not, if he knows the debt to be undischarged; because in the one case he does, in the other does not, apply the law for the purpose for which it was intended. Again, in the case of the minor, the limitation of the law was intended to guard the inexperience of youth against impositions. If, therefore, a minor has contracted a debt, which carries with it the suspicion of imposition on the part of the creditor, he may justly plead his minority; but not so, if there be no such ground of objection. As property is the principal subject of "the determinate relative duties," it has been first discussed. we proceed to From these CHAP. V.-PROMISES. 1. Whence the obligation to perform promises arises. 2. In what sense promises are to be interpreted. 3. In what cases promises are not binding. 38 What effect upon the owner's right has the utility of the law? Give examples. 39 To what conclusion would this lead at first thought? Examples. 40 What is the application of such laws? 41 What are the three subjects of debate in the article of promises? 1. The advocates of a moral sense suppose the obligation to keep promises an innate sense: but, as this is disputed, we may easily deduce the necessity of the obligation from its utility. Men act from expectation, which is generally determined by the assurances of others. Unless, then, such assurances are certain, the conduct which they regulate must be uncertain also. To prevent, therefore, the dependence of conduct on chance, a confidence in promises is essential to social intercourse. But there would be no confidence in promises, unless men were obliged to perform them. The performance, therefore, being essential to general happiness, becomes an obligation. But it has been said, that if promises were never kept, a general distrust would take place equally useful. But this has been said by those who do not perceive how much in every hour man must and does trust to others. On the strength of such confidence each man regulates his actions; and the very dinner we eat depends on the trust we repose in the butcher to send the meat as ordered in, the cook to dress it, and the servant to put it on the table by a stated time. And so in the most important events of life, the intervention of promises and the necessity of keeping them, are really not greater than in these familiar occurrences, though the accidental circumstance of form causes them to appear so. [On this subject Mr. Dymond says, "Doubtless fulfilment is expedient; but there is a shorter and a safer road to truth. To promise and not to perform, is to deceive; and deceit is peculiarly and especially comdemned by Christianity. lie has been defined to be a breach of promise;' and since the Scriptures condemn lying, they condemn breaches of promise."] II. In what sense promises are to be interpreted. Where a promise admits of more interpretations than one, 42 Whence arises the obligation to perform promises? 43 What is the first proposition towards the proof of this? What next? 44 What does this show to be essential? And in what only way can it be obtained? 45 How may some suppose that expediency might lead to the contrary? 46 What answer may be given to this? 47 What does Dymond say of this obligation? it is to be performed "in the sense in which the promiser apprehended that the promisee received it." The sense which the promiser actually intended to act by, cannot always govern the interpretation of an equivocal promise; because, at that rate, the promiser might raise expectations even intentionally, which he would not be under obligation to satisfy. Much less can it be the sense in which the promisee actually received the promise; for then the promiser might be drawn into engagements which might never enter his mind. It must, therefore, be taken in the remaining sense, viz. that in which the promiser believed the promisee accepted it. It is evident that this last sense will always agree with the intention of the promiser, except where a collusion is intended through the equivocal nature of the words of the engagement. Temures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered, and Temures buried them all alive. But although the agreement was kept literally, still as it was not kept in the sense in which Temures knew the garrison received it, he was guilty of a breach of promise. Since, then, the obligation to perform a promise depends on the expectation knowingly excited; any act likewise, by which expectations are designedly raised, partakes of the nature of a direct promise, and creates a similar obligation for its due performance. He, for instance, who takes a poor child, and educates him to fill the situation of a child not poor, is bound to give him the means to fill such situation, as much as if he had directly promised to do so. And a minister of state, who by his complaisance raises in a dependant an expectation of patronage, is bound by such notice to provide for the dependant. On this principle rests the obligation of tacit promises. An intention may be declared either simply, or conjointly with an engagement to perform. In the former, the duty is 49 Why not in the sense of the promiser's intended acts? Give examples. 50 Why not in the sense the promisee received it? 51 What is evident concerning the rule that we have given ? 51 What is said about a mere act? Give examples. 52 What are such acts called? 53 May an intention be declared in one manner only? 54 What is said of a simple declaration? satisfied, if you were sincere at the time, though the intention be subsequently changed: in the latter, the power to change exists no longer. But, in popular understanding, most declarations of present intention amount to absolute promises. If, therefore, there is a wish of reserving a liberty to change, such declarations should be qualified by such expressions as, at present, if I do not alter, or the like. And, after all, a wanton change of intention, as it has excited some expectation, is always wrong. III. In what cases promises are not binding. 1. Promises are not binding where the performance is impossible. This excuse for non-performance is valid only, if the impossibility be unknown to the promiser when he makes the promise; otherwise, he is guilty of fraud in leading the promisee to expect what he, the promiser, knows cannot be performed; as in the case of a father, who promises a marriage gift with his daughters, when he knows that his whole property is secretly mortgaged. In such cases, as the promise cannot be performed in fact, the promiser must repair the loss done to the promisee from such non-performance. When the promiser himself occasions the impossibility, he is guilty of a direct breach of promise; as, for instance, when a soldier maims himself to get discharged. 2. Promises are not binding where the performance is unlawful. 1. Where the illegality is known. If, for instance, a person promises to murder another, or betray his interests; as the performance would be an unlawful act, the engagement is void from its commencement, in consequence of a prior engagement not to do such act. There may be guilt in making such promises, but there can be none in breaking them. And moreover, if in the interval between the promise and its performance, any illegality presents itself, the promise ought to be broken. 54 What is said of an engagement? 55 What is said of most declarations of present intention? 58 What is said of this excuse? Give an example. 59 Suppose the promiser himself occasions the impossibility? 60 What is the second case in which promises are not binding? 61 Give an example of a case where the illegality is known at the time of promise. 62 What is said of such cases? 2. Where the illegality is not known. If, for instance, a woman promises marriage; but, previous to the marriage, discovers that her intended husband has already a wife living, the promise becomes void for, as it was given and received on the supposition that the performance was lawful, the legality becomes a condition of the promise, and on its failure the obligation ceases. So in the case of Herod's promise to his daughter-in-law, the promise was not unlawful, in the sense in which Herod intended it to be taken; but the illegality attending its literal performance discharged Herod from the obligation of such performance in consequence of a superior previous obligation. The rule that promises are void when the performance is unlawful, extends also to imperfect obligations. (Book ii. chap. iii.) Thus, if a vote be promised to one candidate, and on the appearance of a better, it is found that the electors are bound by oath to select the most deserving, the previous obligation of the oath cancels the obligation of the promise. The specific performance of promises is a perfect obligation; and some moralists have decided, that where a perfect and imperfect obligation clash, the imperfect must yield; whereas, in such a case, the obligation which is prior in time ought to prevail. As the validity of a promise is destroyed by the unlawfulness of its performance and not of the motives which led to it; it frequently happens that the first condition of a contract is not obligatory, but the promised recompense is, if that first condition be fulfilled. Thus, the promised reward of a crime should be paid after the crime is committed; for after the mischief has been once done, it is not increased by the payment of the reward. Hence, if the motive be even criminal, the obligation is not canceled; as in the case of a person, who, having promised to marry a woman after the 63 Give an example, in which the illegality is unknown at the time of promise. 64 Why does the obligation cease in such cases? 65 What celebrated promise was of this kind, and what is said of it? 66 To what does this rule extend? Give an example. 67 What if two obligations are contradictory? 68 What follows from the second rule of canceling promises? an example. Give 69 What is the obligation of a promise that is made with a criminal motive? Give an example. |