CONTRACT
335
CONTRACT
^. ill lor to aid and assist the observation of the vendee"
I Kent, op. cit., II, 484).
Respecting what niay be termed generally " rnntives and inducements" (ibid., 487) of a contract, (In same authority cites Pothier as in accord with doctrine of English law, "that though misrepre- I itiou or fraud will invalidate the contract of the mere concealment of material knowledge wiiirli the one party has touching the thing sold and which the other does not possess, may affect the iiiiiscience, but will not destroy the contract, for til at would unduly restrict the freedom of commerce; and parties must at their own risk inform themselves if tlie commodities they deal in" (op. cit., 491). In a m ite, Cicero is referred to as favouring the view that ri'iisi-icnce forbids the concealment, the commentator abiding, "It is a little singular, however, that some of till- liest ethical writers, under the Christian Dispensa- tion should complain of the moral lessons of Cicero, as III ina; too austere in their texture, and too sublime in sp.rulation for actual use" (ibid., note d). As fraud, so coercion, termed in English law duress, or the ih;i at of it, constitutes a valid defence to fulfilment if a contract (Smith, op. cit., 2.30; Pollock, op. cit., 7Jssq.).
S r.vTUTORY Restrictions. — A certain French ordon- li /lie of 1667 (Pothier, op. cit., 448, Appendix, 168) lia been thought to have, perhaps, suggested the lai^lish statute of 1689, which recites its purpose til be "prevention of many fraudulent practices ^\liirh are commonly endeavoured to be upheld by jii rjiiry and subornation of perjury". Accordingly, till' statute requires that certain contracts be in writ- it _•. and tho.se for sales of "goods, wares or merchan- ilisi' (if over ten pounds price" in WTiting, or that there 1m a part-delivery or part-payment. This enactment, known as the Statute of Frauds, has, with numerous xaiiations, been embodied in statutes in the United States (e.xcept in Louisiana), carrying, to quote from tlio .Vmerican commentator, "its influence through till' whole body of our civil jurisprudence" (Kent, o|'. cit., 494, note a).
Hy the early Roman law many contracts were . 1 foreeable by legal action after any lapse of time however long. But, to quote the Institutes, "Sacrfe coiistitutiones .... actionibus certos fines dede- raiit " (the imperial constitutions assigned fixed limits to actions), so that, after certain prescribed periods, III I legal remeedy would be provided to enforce the oMiL!ation of contracts ("The Institutes of Justinian", -andars, London, 189S, Bk. IV, tit. xii; Bk. II, tit. .Such positive restrictions on the legal remedy .a English law contained in enactments known as .-Matutesof Limitation (Blackstone, op. cit., Bk. Ill, 307). One ancient English statute fixed for limita- tion of certain actions the time of the coming of King John from Ireland, another statute the coronation of Henry III (Blackstone, op. cit., Bk. Ill, 188). But modern statutes, as well in England as throughout the United States, limit the remedy to certain periods from the time of entering into contracts, adopting the manner of the Roman constitutions. The legal maxim Leges vigilantibus non dormientihu.s subveniunt (the laws aid the vigilant, not the careless) is appli- cable to private suitors (Blackstone, op. cit.). But nullum tcmpus occurrit regi (no time runs against the king), and therefore, unless specially mentioned, the Government is not included within the restric- tions of a statute of limitations. According to ancient English legal conceptions these statutes ought not to bind the king, for the reason that he " is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects" (ibid., Bk. I, 247).
Inviolability of Contr.4cts.- — To secure inviola- bility of contracts, the Constitution of the United States (Art. 1, Sect. 10) provides that no State shall
pass a "law impairing the obligation of contracts".
By obligation is meant that legal obligation which
exists " wherever the municipal law recognizes an
absolute duty to perform a contract". And the
word contract being used in this clau.se of the Con-
stitution without qualification, the protection of the
Constitution is not confined to executory contracts,
but embraces also executed contracts (Story, op. cit.,
Sect. 1376-1392), such as a grant which, because it
amoimts to an extinguishment of the right of the
party, implies a contract not to reassert the right.
And the Constitution also protects even state char-
ters granted to private persons for private purposes,
whether these be literary, charitable, religious, or
commercial (Kent, op. cit., I, 413-424; Story, op. cit.,
Sect. 1376-1392). See also Donation.
P.\RSONs, The Law of Contracts (9th ert.. Boston, 1901): Wood, A Treatise on the Statute of Frauds (New 'iork and .\lbany, 1884); Idem, .4 Treatise on the Limitation of Actions, etc. (3rd ed., Boston, 1901).
Charles W. Slo.^ne.
Contract, The Social. — "Du Contrat Social, ou Prinei]5es du droit politique", is the title of a work written by J.- J. Rousseau and published in 1732. From the time of his stay at Venice, about 1741, Rousseau had in mind a large treatise dealing with "Les institutions politiques". The "Contrat Social" is but a fragment of this treatise which, as a whole, has never been published.
The "Contrat Social" is divided into four books. The first treats of the formation of societies and the social contract. Social order is a sacred right which is at the foundation of all other rights. It does not come from nature. The family is the most ancient and the most natural of all societies; but this associa- tion of parents and children, necessary as long as these cannot provide for themselves, is maintained after- wards only by convention. Some philosophers have said that among men some are born for slavery, others for domination; but they confound cause and effect; if some are slaves by nature, it is because there have been slaves against nature. Again, social order is not based on force, for the strongest is not strong enough to retain at all times his supremacy unless he trans- forms force into right, and obedience into duty. But in that case right would change places with force. If it is necessary to obey because of force, there is no need of obeying because of duty; and if one is not forced to obey there is no longer any obligation.
All legitimate authority among men is based on an agreement. This argument, according to Grotius, has its foundation in tht; right of a people to alienate its freedom. But to alienate is to give or to sell. A man does not give himself; at most he sells himself for a living; but for what should a people sell itself. To give itself gratuitously would be an act of folly and therefore null and void, lloreover, even if a man has the right to give himself, he has no right to give his children who are born men and free. Gro- tius, again, in order to legitimize slaverj', appeals to the right of the conqueror to kill the conquered or to spare his life at the price of his freedom. But war is a relation between State and State, and not be- tween man and man. It gives the right to kill soldiers so long as they are armed, but, once they have laid down their arms, there remain only men and no one has the right to kill them; besides, no one has the right to enslave men. The words slavery and right are contradictory.
The social order originates in an altogether primi- tive and unanimous agreement. When men in the state of nature have reached that stage where the individual is unable to cope with adverse forces, they are compelled to change their way of living. They cannot create new forces, but they can unite their individual energies and thus overcome the obstacles to life. The fundamental problem is, then, "to find a
