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CHAPTER VII.

THE LAW OF CONTRACTS.

It has been thought desirable to prefix to this Chapter a few remarks, shewing the subjects treated of, and giving an outline of the plan which has been adopted, and in pursuance of which the maxims relating to contracts have been arranged. The first of these expresses the general principle, that parties may, by their express agreements, acquire rights or incur liabilities which the law would not otherwise have conceded to or imposed upon them, subject, however, to certain restrictions, which will be mentioned in the remarks appended to the maxim. The following important rules will then be considered, viz. that a party may by his agreement renounce rights which the law would, in the absence of such express agreement, have conferred-that he cannot take advantage of his own wrongthat, where the fault on each side is equal, the title of the party in possession shall prevail—and that, where the right is equal, the law will decide according to priority of claim. Immediately after the preceding have been placed those maxims which enunciate the requisites of a valid contract -the principles which ought to regulate the conduct of the contracting parties the liability which may be incurred by want of good faith or by breach of contract—and that comprehensive rule which, in fact, embodies the law of Principal and Agent, and according to which the former is

in many cases held responsible for the acts of the latter. I have next stated the rules by which the right of action may be barred by statute, or by the death of parties; and, lastly, the mode in which existing contracts may be varied or dissolved. The above is a brief outline of the leading principles which have been set forth in the following pages. Others of less striking importance have likewise been introduced, and have either been made the subjects of separate consideration or of incidental notice, as either course seemed best calculated to ensure a clear exposition of the general subject. It is further necessary to mention that some of the following maxims apply to actions of tort as well as to those founded in contract, and in such cases the illustrations and remarks have not been in any degree confined to actions of the latter description. The general subject, however, has been arranged so as more particularly to elucidate the principles of the law of contracts and mercantile transactions, and hence the title which has been assigned to this Chapter.

MODUS ET CONVENTIO VINCUNT LEGEM. (2 Rep. 73).— The form of agreement and the convention of parties overrule the law.

ciple.

The above may be considered as the fundamental prin- General principle of the law relating to contracts, and may be thus stated in a somewhat more comprehensive form:-The conditions annexed to a grant or devise, the covenants inserted in a conveyance or lease, and the agreements, whether in writing or by parol, entered into between parties, have, when duly executed and perfected, and subject to certain restrictions, the force of law over those who are parties to such instruments or agreements.

In considering this subject, it may be proper, in the first

Cognate rules place, to notice a general rule immediately connected with

as to the disposition of

property.

it, and which is expressed by the maxim, cujus est dare ejus est disponere (a)—the bestower of a gift has a right to regulate its disposal (b). The bargainor of an estate, for instance, may annex such conditions as he pleases to the estate bargained, for the land moves from him(c),—provided, however, that the conditions are not illegal, repugnant, or impossible (d). So, the founder of a lay corporation, whether civil or eleemosynary, may appoint himself, his heirs, or assigns, or any other persons specially named, to be the visitors (e). On this principle, likewise, an agreement by defendant to allow plaintiff, with whom he cohabited, an annuity for life, provided she should continue single, was held to be valid, for this was only an original gift, with a condition annexed; moreover, it was not an inducement to the plaintiff to continue the cohabitation, it was rather an inducement to separate (ƒ). This rule likewise represents the principle on which the old feudal system of feoffment depended, tenor est qui legem dat feudo-it is the tenor of the feudal grant which regulates its effect and extent; and this is the maxim in regard to feoffments at the present day: modus legem dat donationi (g). Therefore, by a bare grant of lands, the grantee will take merely an estate for life; and, in order to give it a longer continuance, express provision must be made in the deed at the creation, and on the constitution of the estate (h).

And here we may refer to the rule laid down by Lord Bacon with reference to this branch of the subject: " quod

(a) 2 Rep. 71; Wing. Max., p. 53.
(b) Bell, Dict. and Dig. of Scotch

Law, 242.

(c) 2 Rep. 71.

(d) Bla. Com. 299.

(e) Bell, Dict. and Dig. of Scotch Law, 242. See 1 Kyd on Corpora

tions, 50; 2 Kyd on Corporations, 195.

(f) Gibson v. Dickie, 3 M. & S. 463.

(g) Co. Litt. 19. a. ; 2 Bla. Com. 310.

(h) 2 Bla. Com. 107, 310.

sub certâ formâ concessum vel reservatum est non trahitur ad valorem vel compensationem "-the law permits every man to part with his own interest, and to qualify his own grant as it pleases himself, and therefore does not admit any allowance or recompense if the thing be not taken as it is granted (i); as, if I grant common for ten beasts for three years, and the grantee neglect for two years to use the right thus given, he shall not the third year have common for thirty beasts, for the time is certain and precise (i).

lustrative of

In illustration of the preceding rules may be mentioned Instances ilthe following cases:— -Where a man seised of a reversion rules. expectant on an estate for life grants an interesse termini to A. for ninety-nine years, if he shall so long live, to commence after the death of the tenant for life, reserving a heriot on the death of A., and A. dies in the lifetime of the tenant for life, the lessor is entitled to the heriot reserved on the death of A., although he never enjoyed the estate, by reason of the express contract between the parties (k). In like manner, where the tenant of a house covenanted in his lease to pay a reasonable share and proportion of the expenses of supporting, repairing, and amending all partywalls, &c., and to pay all taxes, duties, assessments, and impositions, parliamentary and parochial," it being the intention of the parties, that the landlord should receive the clear yearly rent of 60%. in net money, without any deduction whatever,”—and during the lease the proprietor of the adjoining house built a party-wall, between his own house and the house demised, under the provisions of the stat. 14 Geo. 3, c. 78: it was held, that the tenant, and not the landlord, was bound to pay the moiety of the expense of the

(i) Bac. Max., reg. 4.

(k) Per Kelynge, C. J., Lanyon v. Carne, 2 Saund. R. 167. See Doe

d. Douglas v. Lock, 2 A. & E. 705;
Winch. R. 48.

X

party-wall; "For," observed Lord Kenyon, "the covenants in the lease render it unnecessary to consider which of the parties would have been liable under the act of Parliament: modus et conventio vincunt legem (1)." Again, where a tenant enters into possession under an agreement which does not comply with the Statute of Frauds, he becomes tenant from year to year (m), subject to the right to quit without notice, or to the liability to be turned out without notice at the end of the term; if, however, the tenant continues in possession, paying the same rent, the presumption of law is, that a tenancy from year to year is created, commencing from the period when the original tenancy commenced, but this presumption of law may, no doubt, be varied by the agreement of the parties (n).

In an action on the case for not carrying away tithe corn, the plaintiff alleged, that it was "lawfully and in due manner" set out: it was held, that this allegation was satisfied by proof, that the tithe was set out according to an agreement between the parties, although the mode thereby agreed to varied from that prescribed by the common law, the tithe having been set out in shocks, and not in sheaves, as the law directs (o).

The same rule applies, also, to agreements having immediate reference to mercantile transactions: thus, the stipulations contained in articles of partnership may be enforced, and must be acted on as far as they go, although their terms will be explained, and their deficiencies supplied, by reference to the general principles of law. Thus, although a new

(1) Barrett v. Duke of Bedford, 8 T. R. 602, 605; Payne v. Burridge, 12 M. & W. 727.

(m) Doe d. Tilt v. Stratton, 4 Bing. 446.

(n) Per Coltman, J., Berrey v.

Lindley, 4 Scott, N. R., 74. See Richardson v. Langridge, 4 Taunt. 128.

(0) Facey v. Hurdom, 3 B. & C.

213.