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第56节

the common law-第56节

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 their being performed in fact。 Hence A could not simply wait till the end of his term; and then recover the full amount which he would have had if the employment had continued。 Nor is he any more entitled to do so from '321' the fact that it was B's fault that the services were not rendered。 B's answer to any such claim is perfect。 He is only liable upon a promise; and he in his turn only promised to pay in a case which has not happened。 He did promise to employ; however; and for not doing that he is liable in damages。

One or two more illustrations will be useful。 A promises to deliver; and B promises to accept and pay for; certain goods at a certain time and place。 When the time comes; neither party is on hand。 Neither would be liable to an action; and; according to what has been said; each has done all that he promised to do in the event which has happened; to wit; nothing。 It might be objected that; if A has done all that he is bound to do; he ought to be able to sue B; since performance or readiness to perform was all that was necessary to give him that right; and conversely the same might be said of B。 On the other hand; considering either B or A as defendant; the same facts would be a complete defence。 The puzzle is largely one of words。

A and B have; it is true; each performed all that they promised to do at the present stage; because they each only promised to act in the event of the other being ready and willing to act at the same time。 But the readiness and willingness; although not necessary to the performance of either promise; and therefore not a duty; was necessary in order to present a case to which the promise of action on the other side would apply。 Hence; although A and B have each performed their own promise; they have not performed the condition to their right of demanding more from the other side。 The performance of that condition is purely optional until one side has brought it within the '322' scope of the other's undertaking by performing it himself。 But it is performance in the latter sense; that is; the satisfying of all conditions; as well as the keeping of his own promises; which is necessary to give A or B a right of action。

Conditions may be created by the very words of a contract。 Of such cases there is nothing to be said; for parties may agree to what they choose。 But they may also be held to arise by construction; where no provision is made in terms for rescinding or avoiding the contract in any case。 The nature of the conditions which the law thus reads in needs explanation。 It may be said; in a general way; that they are directed to the existence of the manifest grounds for making the bargain on the side of the rescinding party; or the accomplishment of its manifest objects。 But that is not enough。 Generally speaking; the disappointment must be caused by the wrong…doing of the person on the other side; and the most obvious cases of such wrong…doing are fraud and misrepresentation; or failure to perform his own part of the contract。

Fraud and misrepresentation thus need to be considered once more in this connection。 I take the latter first。 In dealing with it the first question which arises is whether the representation is; or is not; part of the contract。 If the contract is in writing and the representation is set out on the face of the paper; it may be material or immaterial; but the effect of its untruth will be determined on much the same principles as govern the failure to perform a promise on the same side。 If the contract is made by word of mouth; there may be a large latitude in connecting words of representation with later words of promise; but when they are determined to be a part of the contract '323'; the same principles apply as if the whole were in writing。

The question now before us is the effect of a misrepresentation which leads to; but is not a part of; the contract。 Suppose that the contract is in writing; but does not contain it; does such a previous misrepresentation authorize rescission in any case? and if so; does it in any case except where it goes to the height of fraud? The promisor might say; It does not matter to me whether you knew that your representation was false or not; the only thing I am concerned with is its truth。 If it is untrue; I suffer equally whether you knew it to be so or not。 But it has been shown; in an earlier Lecture; that the law does not go on the principle that a man is answerable for all the consequences of all his acts。 An act is indifferent in itself。 It receives its character from the concomitant facts known to the actor at the time。 If a man states a thing reasonably believing that he is speaking from knowledge; it is contrary to the analogies of the law to throw the peril of the truth upon him unless he agrees to assume that peril; and he did not do so in the case supposed; as the representation was not made part of the contract。

It is very different when there is fraud。 Fraud may as well lead to the making of a contract by a statement outside the contract as by one contained in it。 But the law would hold the contract not less conditional on good faith in one case than in the other。

To illustrate; we may take a somewhat extreme case。 A says to B; I have not opened these barrels myself; but they contain No。 1 mackerel: I paid so much for them to so and so; naming a well…known dealer。 Afterwards A writes B; I will sell the barrels which you saw; and their '324' contents; for so much; and B accepts。 The barrels turn out to contain salt。 I suppose the contract would be binding if the statements touching the contents were honest; and voidable if they were fraudulent。

Fraudulent representations outside a contract can never; it would seem; go to anything except the motives for making it。 If outside the contract; they cannot often affect its interpretation。 A promise in certain words has a definite meaning; which the promisor is presumed to understand。 If A says to B; I promise you to buy this barrel and its contents; his words designate a person and thing identified by the senses; and they signify nothing more。 There is no repugnancy; and if that person is ready to deliver that thing; the purchaser cannot say that any term in the contract itself is not complied with。 He may have been fraudulently induced to believe that B was another B; and that the barrel contained mackerel; but however much his belief on those points may have affected his willingness to make the promise; it would be somewhat extravagant to give his words a different meaning on that account。 〃You〃 means the person before the speaker; whatever his name; and 〃contents〃 applies to salt; as well as to mackerel。

It is no doubt only by reason of a condition construed into the contract that fraud is a ground of rescission。 Parties could agree; if they chose; that a contract should be binding without regard to truth or falsehood outside of it on either part。

But; as has been said before in these Lectures; although the law starts from the distinctions and uses the language of morality; it necessarily ends in external standards not dependent on the actual consciousness of the individual。 '325' So it has happened with fraud。 If a man makes a representation; knowing facts which by the average standard of the community are sufficient to give him warning that it is probably untrue; and it is untrue; he is guilty of fraud in theory of law whether he believes his statement or not。 The courts of Massachusetts; at least; go much further。 They seem to hold that any material statement made by a man as of his own knowledge; or in such a way as fairly to be understood as made of his own knowledge; is fraudulent if untrue; irrespective of the reasons he may have had for believing it and for believing that he knew it。 /1/ It is clear; therefore; that a representation may be morally innocent; and yet fraudulent in theory of law。 Indeed; the Massachusetts rule seems to stop little short of the principle laid down by the English courts of equity; which has been criticised in an earlier Lecture; /2/ since most positive affirmations of facts would at least warrant a jury in finding that they were reasonably understood to be made as of the party's own knowledge; and might therefore warrant a rescission if they turned out to be untrue。 The moral phraseology has ceased to be apposite; and an external standard of responsibility has been reached。 But the starting… point is nevertheless fraud; and except on the ground of fraud; as defined by law; I do not think that misrepresentations before the contract affect its validity; although they lead directly to its making。 But neither the contract nor the implied condition calls for the existence of the facts as to which the false representations were made。 They call only for the absence of certain false representations。 The condition is not that the promisee shall be a certain other B; or that the contents of the barrel shall be mackerel; '326' but that the promisee has not lied to him about material facts。

Then the question arises; How do you determine what facts are material? As the facts are not required by the contract; the only way in which they can be material is that a belief in their being true is likely to have led to the making of the

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