Page images
PDF
EPUB

tract of sale. The general rule is, that all are

to be presumed competent unless proved to be Disabilities. affected by some express disability (d). Persons Infancy. under the age of twenty-one years (e), which is

the legal age of discretion, are not held responsible for civil contracts into which they may enter; but as this very disability is a privilege allowed by the indulgence of the law, in order that advantage may not be taken of the inexperience of youth (f), an exception is made in the case of necessaries suitable to the fortune and condition of the infant. The privilege is personal; none therefore, can avail themselves of it, but the infant himself, and on the principle that the privilege ought (as it has been expressed) to be regarded rather as a shield than a sword, most contracts entered into by an infant, are held to be, not absolutely void, but voidable only, and may

thereCoverture. fore be ratified on attaining full age. Married

women (8) are under a similar disability of binding themselves (or their husbands) by contract, unless it be for necessaries, or unless the authority of the husband has been given either expressly or by implication; and the general rule holds equally where the husband and wife live together, as where

(d) of Disability, see Book I. Chap. i.
(e) Of Infancy, see Book 1. Chap. ii. Sect. 1.
(f) i Bl. Comm. ch. 17; Co. Litt. 171, b.
(8) or Coverture, see Book I. Chap. ii. Sect. 2.

they have been separated, whether by the act of either party, by mutual consent, or by the sentence of a Spiritual Court. Idiots and lunatics may bind Idiocy and

Lunacy. themselves for necessaries (h): and in general the Courts will not interfere to set aside a contract entered into by one who is non compos, if it

appear, that no contrivance or imposition has been practised by the plaintiff, and that no prejudice has resulted to the defendant, from his mental imbecility (i). Persons attainted of felony forfeit Attainder. all their property to the crown, and are consequently disabled to contract from the period of conviction (k). Lastly, Alien enemies are incapa- Alien enecitated from suing in any Court of this realm, and cannot, therefore, during the continuance of hostilities, enforce a contract, even if entered into before the commencement of the war (1).

In the sale or barter of personal property, no Mode of formal mode of transfer is prescribed by law, whether the sale be by private contract or by public auction (m). The technical niceties, and the instruments of conveyance, which are requisite in the graver matters of alienation of real property, would be cumbersome and useless in the every-day transactions of buying and selling goods.

my:

transfer.

(1) Of Idiocy and Lunacy, see Book I. Chap. ii. Sect. 3.
(i) Baxter v. Portsmouth (Earl), 5 B. & C., 170.
(k) Of Attainder, see Book I. Chap. ii. Sect. 4.
(1) Of Alien Enemy, see Book I. Chap. ii. Sect. 5.
(m) Of Sales by Auction, see Book I. Chap. v.

When writ. But in order to prevent frauds and perjuries, the ten evidence necessary. legislature has wisely provided, that where the

consideration exceeds a certain value, no executory contract of sale shall be deemed binding, on oral evidence only (n); no strict form, however, is required, but merely a simple memorandum in writing of the bargain; and this written agreement is expressly exempted from the usual agreement-stamp. Written evidence is unnecessary where any overt act has been done, from which a permutation of the property can be inferred; such alteration of the property may arise, either from an actual or constructive delivery of the possession, or from a payment of part of the price, or from something being given by the buyer by way of earnest as a symbol of his ratification of

the contract. In the sale, however, of one species Ships.

of chattels, viz. ships, other formalities are requisite (o). On account of the importance and value of the property, and the uncertainty which would otherwise prevail as to ownership, the legislature has provided that the property in ships shall not be transferred without certain instruments in writing

To constitute a valid contract of sale, the parties must act bonâ fide, and according to law.

Sale of

What avoids a sale.

(n) 29 Car. II. c. 3. s. 17. See Book I. Chap. iii. Part 1. (0) 3 & 4 Will. IV. c. 55. See Book I. Chap. iii. Part 2.

It is a general rule, that Fraud (p) vitiates Fraud. every transaction. Therefore, if the vendor be guilty of fraud against the vendee, or the vendee against the vendor, the innocent party in either case will not be compelled to complete the contract. In like manner, where the contract is fraudulent, (whether by statute (q) or at common law (r)) against third persons, it cannot be enforced. A strong badge of fraud, though not conclusive evidence, is afforded by the circumstance of the vendor continuing in possession after the sale ; since, in ordinary dealings a change of possession accompanies a change of property, and by deviating from this rule, third parties are deceived, and induced to give credit to the apparent owner (s).

Immorality (t) is another ground of avoiding a Immorality. contract of sale. No contract arising out of an immoral transaction can be enforced; for the maxim of law is, ex turpi causâ non oritur actio, or, in the elegant paraphrase of Lord Mansfield “ Justice must be drawn from pure fountains” (u).

Illegality is also a ground of avoidance. If the Illegality. contract violate any rule of law, whether common

(P) Of Fraud, see Book I. Chap. iv. Sect. 1.
(9) 13 Eliz. c. 5. See Book I. Chap. iii. Part 5.
(r) See Book I. Chap. iv. Sect. 1. 3.
(s) 2 Stark. Evid. p. 359 (2nd Ed).
(1) Of Immorality, see Book I. Chap. iv. Sect. 2.
(u) Selw. N. P. p. 70 (8th Ed).

law or statute, or the principles of public policy, the sale is null and void. On this principle, contracts for the sale of illegal shares, gambling contracts, and all contracts arising out of illegal trading transactions carried on with the subjects of a country at war with Great Britain, are void (x). On the same principle, sales of prohibited goods and chattels (y), and contracts entered into on prohibited days (x), cannot be enforced. Under this head too, may be classed contracts affected by the Acts of Bankruptcy (a). Even before any act of bankruptcy committed, a transfer by a trader in contemplation of bankruptcy, and in order to give a fraudulent preference to a particular creditor, is void. After an act of bankruptcy committed, no dealings whatever with the bankrupt can be supported, unless they are expressly protected by the saving clauses of the statute, which provide in certain cases that the fair trader shall not be prejudiced by secret acts

of which he has no notice. Of change

A complete and bona fide sale, in general transof property fers the property absolutely from the vendor to the

vendee : but from the rule of law, that no one can assign a greater interest in any thing than he him

(x) Of Illegality at Common Law, See Bk. I. Chap. iv. Sect. 3. (y) See Book I. Chap. iii. Part 3.

(2) 29 Car. II. c. 7. s. 1; see Book I. Chap. iii. Part 4 ; Dies dominicus non est juridicus.- Noy's Max. p. 2.

(a) 6 Geo. IV. c. 16; see Book I. Chap. iii. Part 6.

« PreviousContinue »