forbids any action to be brought on a promise to pay debts contracted during infancy. See p. 60, supra. tion of rever The same principles apply, so far as they are applicable Applicato a transaction of sale as distinguished from loan, to the principles sale of reversionary interests by persons who are not in an to sales of independent position, as when the sale is made by a man sionary only just of age in pursuance of terms settled while he interests by persons was still an infant. Here the burden is on the purchaser in dependent posito show the fairness of the transaction. He is not bound tion. to show that the price given was absolutely adequate; but he is bound, notwithstanding the Act of 1867 (31 Vict. c. 4, p. 583 above), to show that it was such as, upon the facts known to him at the time, he might have reasonably thought adequate. Moreover he ought to see, where practicable, that the seller has independent legal advice. These rules seem to be established by O'Rorke v. Bolingbroke (k), which is remarkable as an almost singular instance of an impeached transaction with an "expectant heir" being upheld. There a father and son negotiated with a purchaser for the sale of the son's reversionary interest expectant on the death of the father. The sale was completed three weeks after the son came of age. The price was agreed to after some bargaining; it was founded on a statement of value furnished by a third person, and would have been adequate if the father's life had been a good one. The purchaser did not know and had no reason to believe anything to the contrary, but it was in fact a bad life. The young man took no independent advice, being "penniless, and except for his father friendless" (). The father died within three months after the sale. Four years later the son sued to have the whole transaction set aside, but failed in the House of Lords after succeeding in the Court of Appeal in Ireland. The majority of the Lords (m) held that the burden of proof was indeed on (k) 2 App. Ca. 814. (1) Lord Blackburn, at p. 837. (m) Lord Blackburn, Lord O'Hagan, and Lord Gordon. "Surprise" and "improvidence." Evans v. the buyer, but that he had satisfied it. Lord Hatherley dissented, thinking that it was the buyer's absolute duty to see that the young man had independent advice. We have yet to examine another alleged ground of equitable relief against contracts, founded on the notion of an inequality between the contracting parties: we say alleged, for we adopt the opinion, for which there is high authority, that it ought not to be treated as a substantial ground for avoiding transactions, but only as matter of evidence we mean "surprise," or "surprise and improvidence." The case of Evans v. Llewellyn (n) may be taken as the typical instance. The plaintiff was a person of inferior station and education who acquired by descent a title in fee simple to a share in land in which the defendant had a limited interest. His title was first communicated to him by the defendant, who represented to him (as the fact appears to have been) that the circumstances of the family created a moral obligation in the plaintiff not to insist on his strict rights, and offered to purchase his interest for a substantial though not adequate consideration. The defendant suggested to the plaintiff to consult his friends in the matter, which however he did not do. Three days intervened between the first interview and the conclusion of the business by the acceptance of the defendant's offer. It was considered that the plaintiff was under the circumstances not a free agent and not equal to protecting himself, and was taken by surprise, and the sale was set aside (o). The case seems somewhat anomalous, but it has been suggested by very high authority that it would still be followed in setting aside a contract as "improvident and (n) See following note. (0) 2 Bro. C. C. 150; 1 Cox 333, a fuller report, which is here followed; the other if correct would reduce it to a plain case of fraud or at all events misrepresentation. In Haygarth v. Wearing, 12 Eq. 320, which to some extent resembled this, the ground of the decision was a positive misrepresentation as to the value of the property. hastily carried into execution" (p), and it has been distinctly approved in the Court of Appeal in Chancery (q). 66 sur prise," &c. stantive contracts. It is submitted, however, that there is no intelligible Qu. if reason for treating surprise or improvidence as a substantive cause for setting aside contracts, much less for attempting any subto give these words a technical signification. Both terms cause for are in fact merely negative and relative. Surprise is no- avoiding thing else than the want of mature deliberation: improvidence is nothing else than the want of that degree of vigilance which a man of ordinary prudence may be expected to use in guarding his own interest. Now one man's deliberation and prudence are not the same as another man's, nor is the same man equally deliberate or prudent at all times. A man may enter into a contract with less deliberation than the average wisdom of mankind would counsel, or than he himself commonly uses, in affairs of the like nature, and yet the contract may be perfectly valid. But he must in any case understand what he is doing; for if he does not, there is no true consent and no contract (r), and his consent must be freely given; for if it is not, the contract is voidable at his option. And if it But be disputed whether there was or not any real consent, or stances of whether consent was or not freely given, then circumstances this kind of what is called surprise or improvidence may be very material material as evidence bearing on those issues. Unusual for proving the haste or folly in entering into an engagement is a circum- existence stance to be accounted for: and the best way of accounting grounds for it may in all the circumstances of a particular case be for avoiding the to suppose that the party did not know what he was about, contract, or that he was wrought upon by conduct of the other party as fundaof such a kind as to make the contract voidable on the error or fraud. ground of fraud. Surprise and improvidence, therefore, are (p) Lord St. Leonards in Curzon v. Belworthy, 3 H. L. C. 742: there the appellant relied on express charges of fraud, which were not made out: but Lord St. Leonards thought he might possibly have succeeded if he had rested his case on the ground suggested. (2) Per Turner, L. J. in Baker v. Monk, 4 D. J. S. at p. 392. (r) The cases of lunacy and drunkenness are exceptionally treated, the contract being only voidable, supra, Ch. II. p. 93, and see p. 418. circum may be of distinct mental matters from which those whose province it is to judge of the facts may conclude, as a fact in particular cases, that there was no true consent, or that the consent was not free. But it is not to be affirmed as a general proposition of law that haste or imprudence can of itself be a sufficient cause for setting aside a contract, nor even that there is any particular degree of haste or imprudence from which fundamental error, fraud, or undue influence, will be invariably presumed. "The Court will not measure the degrees of understanding" (s). It seems to follow that what is recorded in such a case as Evans v. Llewellyn (t) is not an enunciation of law, but an inference of fact. Such an inference may be useful in the way of analogy when similar circumstances recur, but is not binding as an Opinions authority. The view here taken may be supported by the of judges in Earl of observations of the judges in The Earl of Bath and Mountague's Case (A.D. 1693) (u). In that case Baron Powel said (3 Ch. Ca. at p. 56): Possible Evans v. Bath and Mounta gue's case. “It is said, This is a Deed that was obtained by Surprize and Circumvention. Now I perceive this word Surprize is of a very large and general Extent I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict, unless it be mixed with Fraud, and that expressly proved." [i. e. the verdict in favour of the deed precludes the party from asserting in equity that he did not know what he was about: for he should have set up that case at law on the plea of non est factum]. "It must be admitted that there was Deliberation, and Consideration and Intention enough proved to make it a good Deed at Law, otherwise there would not have been a Verdict for it": per L. C. J. Treby, ib. at p. 74. The judgment of the Lord Keeper Somers is even more decided, and points out clearly the difference between an instrument which is void both at law and in equity, and one which is voidable in equity (p. 108): "It is true, it is charged in the Bill that this Deed was obtained by Fraud and Surprize But whosoever reads over the Depositions (8) Bridgman v. Green, Wilmot, 58, 61. (t) 1 Cox 333. (u) 3 Ch. Ca. 55. Cp. Story, Eq. Jurisp. § 251. will see that the End they aimed at was to attack the Deeds themselves as false Deeds and not truly executed; but that being Tried at Law, and the Will and Deeds verified by a Verdict, the Counsel have attempted to make use of the same Evidence, and read it all, or at least the greatest Part of it, as Evidence of Surprize and Circumvention "Now, for this word (Surprize) it is a Word of a general Signification, so general and so uncertain, that it is impossible to fix it; a Man is surpriz'd in every rash and indiscreet Action, or whatsoever is not done with so much Judgment and Consideration as it ought to be: But I suppose the Gentlemen who use that Word in this Case mean such Surprize as is attended and accompanied with Fraud and Circumvention; such a Surprize indeed may be a good ground to set aside a Deed so obtain'd in Equity and hath been so in all times; but any other Surprize never was, and I hope never will be, because it will introduce such a wild Uncertainty in the Decrees and Judgments of the Court, as will be of greater Consequence than the Relief in any Case will answer for." to doctrine as to in of consi Moreover the doctrine thus stated is exactly analogous Analogy to that which we have seen to be undoubted law concerning inadequacy of consideration. The value of the subject- adequacy matter of a contract, and therefore the adequacy of the deration. consideration, which depends on it, is in most cases easier to measure than the degree of deliberation or prudence with which the contract was entered into. It can hardly be contended on principle that "surprise" or "improvidence," which in fact represent nothing but an opinion of the general character of a transaction, founded on a precarious estimate of average human conduct, ought to have a greater legal effect than inadequacy of consideration, which generally admits of being determined by reference to the market value of the object at the date of the contract. 5. Limits of the right of rescission. sion is like The right of setting aside a contract or transfer of pro- The right perty voidable on the ground of undue influence is analogous of rescisto the right of rescinding a transaction voidable on any that in other ground, and follows the same rules with some slight fraud, &c. modifications in detail. cases of and governed by What is said in the last chapter of rescinding contracts same for fraud or misrepresentation may be taken as generally rules. applicable here. We proceed to give some examples of the special application of the principles. P. Q Q |