Continental law as to sales Old French law. jector to show that the testator's will was not free, and something amounting to fraudulent practice must be proved. "La suggestion ne saurait être séparée," says Troplong, "d'un dol subversif de la libre volonté du testateur . . . On a toujours été très-difficile en France à admettre la preuve de la suggestion et de la captation.” (Droit civil expliqué, Des donations entre-vifs et des testaments, art. 492.) On the other hand the Code Civil (art. 907, 909-911) contains express and severe restrictions on dispositions by wards in favour of their guardians, and by persons in their last illness in favour of their medical or spiritual advisers. These apply alike to wills and to gifts inter vivos. The Continental enactments as to the effect of inadequacy of consideration on a sale are derived from the rule of Roman law, namely at under that a sale for less than half the true value may be set aside in favour value. of the seller unless the purchaser elects to make up the deficiency in Civil law. the purchase-money: Cod. 4. 44. de resc. vend. 2. "Rem maioris pretii si tu vel pater tuus minoris pretii distraxerit, humanum est ut vel pretium te restituente emptoribus fundum venditum recipias, vel, si emptor elegerit, quod deest iusto pretio recipias. Minus autem pretium esse videtur, si nec dimidia pars veri pretii soluta sit." A less undervalue was not of itself a sufficient ground: C. eod. tit. 8, 15. The old French law adhered to this rule: Pothier, Obl. § 33. "On estime communément énorme la lésion qui excède la moitié du juste prix," id. Contr. de Vente, § 330, sqq. Pothier however goes on to say that this does not apply to sales of reversionary interests (contrat de vente de droits successifs) nor to other speculative contracts (contrats aléatoires), on account of the difficulty of fixing the true value; nor to sales of moveable property: cp. id. de Vente, § 341. Thus the rule and the exception, as touching immoveable property, were just the reverse of our own law as it stood before Code Civil. 1868. The modern French code fixes the undervalue for which a sale (of immoveable property only) may be set aside at 7-12ths. It adds this important limitation, that a general presumption of undervalue must be raised by the circumstances alleged on behalf of the seller before evidence of the actual existence and amount of the inadequacy can be admitted. There are also certain precautions as to the kind of proof to be allowed. If undervalue to the prescribed extent is established the buyer has the option of submitting to a rescission of the sale or paying up the difference. (Code Civ. 1674-1685.) Nothing is said about sales of reversionary interests, but it has been decided in accordance with the older law that the section does not apply to them: Codes Annotés, 1. 798. "Ne sont pas sujettes à la rescision pour lésion les ventes suivantes The provisions of the Italian Code are in substance the same as Italian those of the Code Napoléon (Codice Civile, 1529-1537). Code. The provisions of the Prussian Code-Allgem. Landrecht, part I. Prussian Tit. II. §§ 58, 59 ("Von der Verletzung über die Hälfte ")-are Code. substantially as follows. The objection that the purchase-money is disproportionate to the value of the thing sold does not of itself suffice to avoid the contract. "But if the disproportion is so great that the purchase-money exceeds double the value of the thing sold, then this raises a legal presumption (rechtliche Vermuthung), of which the buyer may take advantage, of an error such as to avoid the contract." The buyer may by his contract waive the benefit of these provisions (§ 65); and the seller cannot in any case dispute the contract on the ground of undervalue. The reason of this appears to be that the judicial presumption is not of fraud, but of error, and that the vendor cannot be presumed to be in error as to the value of his own property. The Austrian Code (§§ 934, 935), following the extended inter- Austrian pretation of the Roman rule sanctioned by the prevailing modern Code. opinion in Germany, see Vangerow, Pand. § 611 (3.326), enacts that inadequacy of consideration to the extent of more than one-half in any bilateral contract gives the party injured a right to call upon the other to make up the deficiency or rescind the contract at that other's option. This right may be waived beforehand, and the rule does not apply to judicial sales by auction. Thus the French Code follows the rule of the Roman law, giving Observathe remedy to the seller only, but adds a qualifying rule of evidence tions and which limits the remedy to cases where there is some ground of summary. suspicion besides the undervalue itself. The Prussian Code reverses the civil law by giving the remedy only to the buyer, and the Austrian Code extends it to both parties, and to every kind of contract for valuable consideration. These discrepancies seem to favour the conclusion that the course our own law has always taken with respect to property in possession, and now takes (since the Act 31 Vict. c. 4) with respect to property in reversion, is on the whole the wisest. It is worth while to observe that the Civil Code of Lower Z z P. Canada has altered the law of that province in the same direction, and declares without exception that persons of full age “are not entitled to relief from their contracts for cause of lesion only" (§ 1012). On the other hand the question was considered in framing the Italian Code, and the rule of the civil law was deliberately adhered to. (Mazzoni, Diritto Civile Italiano, 3.357.) The different enactments we have mentioned may be thus recapitulated: INDEX. ACCEPTANCE: of proposal, general but not universal form of agreement, 5. by performing conditions of proposal, 12. when in time, 24. double, of same proposal, 28. must be communicated, 31. when the contract is made by correspondence: difficulties of the theories in English authorities, 33. by post, effectual, though never delivered, 35. will not relate back to date of proposal, 37. must be unqualified, 38. examples of insufficient acceptance, 39. of sufficient acceptance, 40. with immaterial or ambiguous addition, 40. by conduct as well as by words, must be certain, 46. ACCIDENT: destroying subject-matter of contract, effect of, 362, 367. ACKNOWLEDGMENT of debt barred by Statute of Limitation, 601. ACQUIESCENCE: cannot exist without knowledge, 399. may work estoppel in equity, 569. “ACT OF GOD": meaning of: no general definition possible, 366. ADVERTISEMENT: contract by, 12, sqq. such contracts not exempt from Statute of Frauds, 22. AGENCY: general theory of, 50, 212. positions of actual or professed agent as regards principal, 95. contracts made by agents, 95, sqq. contract by authorized agent known to be such, 97. when agent is personally liable, 98. how agent's liability may be excluded or limited when he contracts contract by authorized agent, but not known to be such, 100. rights of undisclosed principal, 100. rights of other contracting party, 101. position of professed agent who has no authority: where a re- where no responsible principal is named, 107. when professed agent may disclose himself as real principal, 108. sub-agent appointed without authority is not agent of principal, fraudulent misrepresentation or concealment of, 487. AGENT: authority of, its constitution and end, 96. corporation liable for wrongs of, in course of employment, 115. 243. must not sell to or buy from himself, 244. must not profit by his own negligence, 246. must account to principal, notwithstanding collateral illegality in the transaction, 333. knowledge of, is knowledge of principal, 97, n., 101. statements of, how far binding on principal, 530. always liable for his own wrong, 533. AGREEMENT: defined, 1. void, what, 2, 7. consent, how expressed, 1. analysis of, as accepted proposal, 4. See ACCEPTANCE; PROPOSAL. no contract unless the terms are certain, 42. |