CH. 1. Art. 7. pressed or implied. Without it, he cannot be held to yield a right; and without this assent a right secured to him, by the contract, cannot be released; and being, in toto, personal, none but such as represent the person, can avoid or confirm. By this implied personal assent, one partner binds another in a partnership contract; the wife the husband; and the servant the master, by a contract made by his implied consent. If two take a bond, and one release it, the other is barred on the same principle; because by voluntarily joining, this power is, impliedly, given to each by the other. But if by law compelled to join, as in auditâ querelâ, and in some other cases, the release of one has no such effect, because here, the joining being thus by legal compulsion, there is no room for such implied assent or to presume it. On this distinction is summons and severance, in actions, founded; therefore, if two or more voluntarily join in taking a contract, and one will not proceed in an action upon it, he cannot, by law, be severed; but if by law two or more are obliged to join in a suit, and one will not pro- Toller's L. of ceed in it, he may be severed by summons and severance, and Ex. 446.-3 the rest proceed without him; but there is no summons and severance, where all need not join. 10 Mass. R. 136. $2. By privity of contract, a release to one obligor is a release to the other, or to all in the bond; because here the creditor releases all his right by discharge to one debtor, and another may get it and plead the release. The privity among the debtors is in their being bound and united, and jointly, in one entire debt; however, in some cases, one may be discharged and not the others. Bac. Abr. 33. Cro. Cas. 420: §3. So where several are interested in one entire thing, or How a reestate, there is a privity of estate, and they are privies; and lease, &c. to one privy in a deed to one may be pleaded by another; as a release to one estate affects joint-tenant, or partner, may be pleaded by another. It ope- another. rates on the thing, and one interested in it may use it; as one in remainder, or reversion, may plead a release or confirmation to tenant for life, and e converso; the same as to an heir, executor, guardian and ward, lessor and lessee. 8 John's. R. These are a few of the material principles in contracts and agreement, in the English and American laws, which will be often considered, more minutely in the following pages, as different subjects, to which they relate, shall come into view. 253, 256. And an entire contract, illegal and void in part, is so in the whole, and a contract must be proved as laid in the plaintiff's declaration. ART. 7. Of dissolving contracts. § 1. It is asettled rule, that 2 Wils. 376, Rogers v. with as high a degree of force, or validity, as a contract re- Paine. ceives in its formation, it must be dissolved; and according to Unum quodthe Roman rule, unumquodque dissolvi eo ligamine quo liga- que dissolvi, Сн. 1. 6 Co. 44, tur. On this principle a deed must be discharged by deed. Hence a discharge in the nature of a release, without deed, in satisfaction of all demands, cannot be pleaded in an action of covenant; for covenant by deed must be discharged by deed. This rule holds, whenever the deed or contract itself is to be released, discharged, or dissolved; but not when damages arising out of it are to be released or discharged; for a writing withran v. Brown. out a seal cannot operate as a defeasance, so as to make a mortgage of a deed absolute on the face of it, in law, though it may in equity. Blake's case. 4 Mass. R. 443, Kelle Civil law $2. Every payment supposes a debt, and if any thing be paid French law. not due, it may be demanded back, but not as to moral obligations, voluntarily discharged. A contract may be discharged by every one interested in it, such as a co-obligor, or surety, or by one not interested, if he act in the debtor's name to make a valid payment and discharge, he who pays must own the thing given in payment, and have a power to alienate it. A payment made to one who has no power to receive for the creditor, is valid, and discharges the debt if ratified by him, or if the thing come to his use. Contracts in different countries. 3d book, title 2, in art. I to 234-title 3, art. 1 to 20. Institutes. The same in the laws of 260. 3. As to the principles of contracts in the civil and other laws. Perhaps the principles of contracts, as found settled in the civil law, and in the laws of some of those European nations, which have more strictly followed the civil or Roman law, will be observed to be, in some cases, nearer the moral sense of mankind, than those of the English laws, though the difference will not be found to be considerable. In some cases it may be found we have adopted the principles of the civil law, where the English have not. Hence the principles of contracts, following, are extracted from the French code revised, and published about 1805 and 1806, and these will be found to have been collected, almost verbatim, from the Roman or civil law. These principles, in general, being founded in the moral perceptions of men, are such as are recognised in all civilized nations, with but few exceptions. 66 § 4. In the French law a contract fs defined to be a convenLouisiana, p. tion, par laquelle une ou plusiurs personnes s'obligent envers une ou plusieurs, à donner, à faire, ou à ne faire quelque chose." The conditions of which are; 1, the consent of the party binding himself; 2, his capacity to do it; 3, an object certain, that forms the matter of the contract, and 4, a legal cause of the obligation. But there is no consent, if given by mistake, or if it be obtained by violence or deceit; but then the error must be in the substance of the thing itself which is the object; and violence avoids the contract, though used by a third person, and it is violence when, of a nature to inspire a reasonable person with the fear of exposing himself, or estate to a considerable and present evil; and in this case, respect is to be had to the age, sex, and condition of the person. § 5. But a contract cannot be impeached by reason of violence, if after it has ceased, the contract is, expressly, or tacitly approved, or if the legal time allowed to except to it be passed. 6. "Le dol," or deceit, avoids a contract when so practised by one party, that without this, the other, clearly, would not have contracted; but deceit is always to be proved. 7. Every one may contract, if not declared by law to be incapable; and one of ability to contract cannot allege the incapacity of the party with whom he contracts. 8. The mere use, or mere possession of a thing may be, as well as the thing itself, the object of a contract. § 9. An obligation, without cause, or grounded on a false or illegal one, is void: and an implied contract is as valid as an express one. The cause is illegal, when prohibited by law, or is contrary to good morals, or the public order. § 10. An obligation to give, implies a delivery of the thing, and a duty to preserve it till the delivery, on the penalty of damages to the creditor. 11. No damages are due to the creditor, or contracter, till the contract be broken. They are, generally, when broken, his loss sustained, and gain thereby deprived of, but such only as are the immediate and direct consequence of the non-execution of the contract. 12. When it is expressly provided for in the contract, that the party failing to execute it, shall pay a certain sum in the name of damages, and interest, that very sum must be paid. 13. The construction is upon the whole contract, and what is implied is to be taken into view, as much as if expressed. See 14 Mass. R. 453-455, as to doing a seaman's duty. 14. Conditions. Every condition impossible, or contrary to good morals, or prohibited by law, is void. And a condition not to do a thing impossible, avoids not an obligation in which it is contained. Every condition is to be performed in the manner the parties really meant it should be. When an obligation is made, depending on a future uncertain event, or on one that has actually happened, though not known, the thing contracted about remains at the debtor's risk, who is not bound to deliver it, but on the happening of the condition. If the thing entirely perish without his fault, the obligation is extinct. If damaged without his fault, the creditor has his election either to dissolve the contract, or to demand the thing, in the state wherein it is, without diminution of price. If the thing be damaged by the debtor's fault, the creditor has a right to dissolve the contract, or to demand the thing in the state in which it is, with damages and interest. CH. 1. Art. 7. Сн. 1. $ 15. Contracts in the alternative. In these, the debtor or contractor is at liberty to deliver one of two things; the election is his, if not expressly given to the creditor; and he may deliver either to the creditor, but not a part of one, and a part of the other. This contract is single, if one of the two things cannot be the subject of the contract; and the contract is binding as to the other. 16. If one cannot be delivered, because perished by the fault of the debtor, he cannot offer the price in its stead; if both perish, and one, by his fault, he must pay the price of the one that perished last. If one perish without the debtor's fault, the creditor ought to have the other. 17. In the contrat solidaire there is something not found in our law. It is a contract among many creditors, when one of them, expressly, has a right to demand payment of the whole, and this payment made to one of them discharges the debtor; and it is at his election to pay either creditor, if not prevented by a suit of one of them. The release, made by one of them, discharges the debtor, but for the part of the releasing creditor. Every act that interrupts the prescription, or limitation, as to one of them, benefits all the creditors. On the debtor's part the contract is solidaire, when several are bound for the same thing, so that any one of them may be compelled to pay the whole; and the contract may be solidaire, though one of the debtors be bound differently from another, in regard to the same thing; as one conditionally, and another absolutely, one to pay immediately, and another at some future day. This kind of contract can be only by express stipulation. If the thing perish, by the fault of one or more of the debtors solidaires, the other debtors are held to pay the price of the thing, but not damages and interest, the creditor can demand damages and interest only against the debtors by whose fault the thing perishes, and those "en demeure." The suit against one debtor interrupts the prescription as to all, and a demand of interest against one of them, causes interest to run against all of them. There are many other peculiarities in this species of contract, some of which might be useful in any country, especially if one creditor becomes executor; so of one debtor, it does not affect the contract as to the others, nor does a composition as to one debtor. § 18. Penal contracts. If the contract be void, the penal part is, of course; but the contract may be valid, though the penal part be void; nor is the creditor bound to demand the penalty, which is never incurred till there is a failure in performing the contract. 19. Payments valid by the Civil Law, &c. See discharge above. A payment in money, or other thing, consumed by use, cannot be demanded back, from the payee, who has consumed it, bonâ fide, though made by one not the owner, and not having power to pay. 20. Payment bonâ fide, may be to one in possession of the security; but to a creditor, incapable of receiving, is invalid, at least if the debtor do not prove the thing paid has turned to the creditor's benefit, who can never be obliged to receive any thing, but that which is due or stipulated for; the thing offered being of greater value makes no difference: and though a debt be divisible, a creditor cannot be forced to take a part of it; and whoever claims the execution or discharge of a contract has the onus probandi. § 21. Payment by whom directed, by the Civil Law. If the debtor owe two debts, he has a right to declare which of them he pays; but if a debt on interest, he cannot, without the creditor's consent, apply the payment to the principal. It is first applied to the interest. When the debtor owes divers debts, and has accepted an acquittance, by which the creditor has applied what he has received to one of them, specially, the debtor cannot then apply the payment to a different one, at least, if there be no deceit or surprise on the creditor's part but when the acquittance makes no application of the payment, it is applied to the debt, the debtor is most interested in discharging among those due; and if some be not due, to those due, though these be the least burdensome. $22. Whatever discharges, or benefits, the principal, does the surity, but not e converso. 23. Limitations run not in case of violence, but from the day it ceases; nor in case of error, mistake, or deceit, but from the day it is discovered; and in general, in regard to married women, minors, &c. but from the day the inability is removed, on the general principles of law. $24. Implied contracts. Some of these result from the authority of law only; others from personal acts. The former are involuntary, the latter result from quasi contracts, &c. or "des quasi contrats, or des délits ou quasi des délits." The quasi contracts are one's own acts, purely voluntary; whence there results some engagement to a third person, and, sometimes, a mutual one between two parties. When one, voluntarily, conducts an affair, the proprietor knowing it or not, he tacitly engages to continue the business he has begun, and forward it till the proprietor can manage it himself; and if he die before it is finished, till his representative can take the direction of it; and he is bound to conduct the affair with all the care of a good father of a family; yet the circumstances that may have led him to engage, may authorise the judge to moderate the damages and interest, that result from the fault СH. 1. Art. 7. |