rule in regard to risk in contracts of leasing and hiring, whether of property or of personal services. In these cases non-performance, though excused by impossibility, was a defence to an action for the stipulated price.15 There is here an inconsistency from which no amount of juridical learning has been able to effect an escape.16 § 898. Right of rescission in the Roman Law. Connected with the right to refuse performance of a contract because the other party has not performed, is the right to have the contract rescinded or dissolved for that reason and any performance already given restored if the nature of the case allow. If no performance by either party has been made, and performance by the party in default no longer can be made, either because the proper time has elapsed or for any other reason, it makes little practical difference whether it is said that the other party has the right to rescind the contract or merely that he need not perform until he receives performance. The result is the same. But where performance has been partly rendered, or is still possible, the difference is important. The right to rescind the transaction does, it is true, imply the right to refuse to perform unless counter performance is rendered, but the converse statement does not hold good. Roman law did not authorize dissolution of a sale because of non-payment of the price, and the same principle is applicable to the other consensual contracts under discussion.17 If the seller trusted to the credit of the buyer he had no other by Pothier, Contrat de Vente, § 307; Dernburg, Pandekten, ii. § 20. The other view is well stated by André, 146 et seq. See also infra, § 950. 15 Dig. 19. 1. 50, Hunter, Roman Law (3d ed.), 508, 512. 16 See Hofmann, Periculum beim Kaufe (Vienna 1870) pp. 18-21. Esterlen, Mehrfacher Verkauf. (Stuttgart, 1883), p. 66; Tödter, Die Allgemein Bestimmungen des Bürg. Gesetz buches über den gegenseitigen Vertrag (Erlangen, 1899), p. 31. The rule " in regard to risk of loss after a contract of sale is of great antiquity (see Hofmann, pp. 169–188), and perhaps the most satisfactory way of dealing with that rule is to regard it as a survival in a particular class of cases of the early doctrine of the independence of mutual promises, indicated by the quotation from Varro, supra, in spite of the later development of a general doctrine of inconsistent nature. 17 Windscheid, Lehrbuch, II. § 321, note 9. remedy than a personal action for the price. 18 In order to give the seller the right of rescission if the buyer failed to fulfil his obligations it was necessary to insert a special clause which was called lex commissoria.19 In later Roman law the buyer was allowed to rescind a sale without this special agreement in case the article sold had latent defects, but not simply because the seller had broken his contract.20 § 899. General provisions of the French Law. Modern civil law has developed and in some respects changed the doctrines of the Roman law. In France it is well recognized that one party to a bilateral contract has the right to refuse performance until the other party has performed or offered to do so. This is called the right of retention, being considered analogous to the right of a pledgee or lien holder.21 The Code Civil expressly gives the right only in the case of sales and in favor of the seller only, 22 but it is not questioned that it exists in all bilateral contracts. 23 This right, however, has been very little considered in French law, and has never received elaborate treatment by French writers. The reason for this is not far to seek. The right of one party to a bargain to rescind it for non-performance or imperfect performance by the other party,—a right which, as previously stated, did not generally exist in the Roman law, had already by legal usage been greatly extended at the time when Pothier wrote, 24 and Article 1184 of the Code Napoléon made the principle universal. That article 18 Actio tibi pretii, non eorum quæ dedisti repetitio competit. C. 4. 38. 8. See also C. 4. 44. 14. 19 Larombière, III. 84; Moyle, Sale in Civil Law, 169; Hunter, Roman Law, 591. 20 Larombière, III. 85; Moyle, Sale in Civil Law, 201; Hunter, Roman Law, 498-502. 21 Saleilles, Annales de Droit Commercial, VII. 25; Larombière, III. 266. 22 Art. 1612. Le vendeur n'est pas tenu de délivrer la chose, si l'acheteur n'en paie pas le prix, et que le vendeur ne lui ait pas accordé un délai pour le payement. See also Arts. 1651, 1653, 1749, 2102-2104. 23 Larombière, III. 266; Saleilles, Ann. de Droit Comm. VII. 25. Indeed the language and illustrations of Larombière indicate that it exists in all reciprocal obligations, whether arising from contract or not. 24 Contrat de Vente, § 475. This was published in 1762. made it an implied condition subsequent in every bilateral contract that each party satisfy his obligation to the other. The provision is unchanged in the Code Civil at the present day.25 It is true the right of retention gives a technically different remedy and one which might possibly be more desirable in a particular case.26 But practically the remedy of specific performance or that of rescission with damages seems to have been found sufficient. As a general rule these remedies afford more effective redress for the injured party than those of the Roman or of the English law. He may have the contract dissolved with the result that he no longer is bound to perform, or, if he has already performed, that he gets back what he has given, in either case with damages, or he may have the other party compelled to perform, if that is possible.27 The right to have the contract dissolved, like the right of retention, applies to all bilateral contracts, though not absolutely without exception.28 25 Art. 1184. La condition résolutoire est toujours sous-entendue dans les contrats synallagmatiques, pour le cas où l'une des deux parties ne satisfera point à son engagement. Dans ce cas, le contrat n'est point résolu de plein droit. La partie envers laquelle l'engagement n'a point été exécuté, a le choix ou de forcer l'autre â l'exécution de la convention lorsqu'elle est possible, ou d'en demander la résolution avec dommages et intérêts. La résolution doit être demandée en justice, et il peut être accordé au défendeur un délai selon les circonstances. In this connection too should be noted: Art. 1610. Si le vendeur manque a faire la délivrance dans le temps convenu entre les parties, l'acquereur pourra, â son choix, demander la résolution de la vente, ou sa mise en possession, si le retard ne vient que du fait du vendeur. Art. 1654. Si l'acheteur ne paie pas le prix, le vendeur peut demander la résolution de la vente. And there are analogous provisions in regard to exchanges in Arts. 1704, 1705. 26 For instance, if one party after partly performing makes default, the most profitable course open to the other party may be simply to do nothing. Dissolution under Art. 1184 involves return of whatever has been received. The negative right of retention does not. "In France, as well as in Germany, the right to specific performance of obligations is limited only by actual impossibilities. There are not technical difficulties in addition, as in English law. Infra, § 954. 28 In sales of movable property, if the buyer becomes bankrupt after acquiring possession of and before paying for the goods, the seller cannot have the sale dissolved and thereby regain the goods. Cour de Cassation, 13 Mar. 1888, Journal du Palais, 1890, 1, 393. This doctrine applies to incorporeal movables. Cass. 3 Mar. 1890, Jl. du Pal. 1891, 1, 140. But in general, bankruptcy leaves unchanged Non-performance of one contract may even afford ground for dissolution of another, but only in case the two agreements are related to each other, as, if the making of one was the consideration of the other. 29 § 900. Application for dissolution must be made to the court. The provisions of the French law have some peculiarities of detail. In the first place, the dissolution is not effected by the mere non-performance of one party. An application to the court is necessary.30 This may be made by a defendant as a means of defending himself from a suit; 31 but the express provision of the statute is for a direct application by the party claiming dissolution. He would therefore normally be a plaintiff rather than a defendant. Nor is the mere non-performance of the defendant sufficient foundation for a suit for dissolution. The party claiming dissolution must first put him in default by legal summons to perform or by some equivalent act.32 The very nature of some contracts, how the rights given by Art. 1184; one who has made a lease or exchange of property or a sale of immovable property may have the transaction dissolved for non-performance by the other party due to bankruptcy, even after transfer of possession and title. See note to case last cited. In case of bankruptcy before delivery of the goods, the syndic may take them on paying the contract price. If he refuses to do this, the seller may have the contract dissolved. Whether he is also entitled to a claim for damages, provable against the bankrupt's estate, has been somewhat disputed. In Belgium this right is allowed. Cass. Belgique, 7 Feb. 1889; Jl. du Pal. 1890, 2, 1, and a similar decision is Paris, 4 Mar. 1886, Jl. du Pal. 1887, 1, 194. But the rule in the French Cour de Cassation is otherwise, Cass. 16 Feb. 1887, Jl. du Pal. 1887, 1, 353 (reversing the decision of the Cour de Paris just cited); Cass. 8, Apr. 1895, Jl. du Pal. 1895, 1, 268. This general question is elaborately considered, including references to the legislation of other countries in Des Droits du Vendeur â livrer dans la Faillite de l'Acheteur, by C. Appleton (Paris, 1887). There are some minor exceptions also to the general rule of Art. 1184, Larombière, III. 108; Code Civ. Art. 1978. 29 Larombière, III. 101. 30 Thus a master cannot dismiss summarily a servant or employee whose conduct is unsatisfactory before the expiration of the time fixed by the contract of employment. The master must apply to the court to have the contract dissolved. Cour de Paris, 1 Feb. 1873, Jl. du Pal., 1873, 444. 31 Saleilles, Annales de Droit Comm. VII. 25. 32 Art. 1139. Le débiteur est constitué en demeure, soit par une sommation ou par autre acte équivalent, soit par l'effet de la convention, lorsqu'elle porte que, sans qu'il soit besoin d'acte et par la seule éché ever, is such that mere non-performance necessarily involves default. If performance to be effectual must be before a certain day or fixed time, for instance if the contract was for furnishing provisions to a ship which was to sail on a fixed day, the mere lapse of time without performance puts the debtor in default.33 The same result follows if performance is promised at the creditor's domicile or some specified place other than the debtor's domicile, and at the time when the debtor should perform he is not at the agreed place prepared to do so.34 Again, if the debtor by his words or conduct has given the creditor cause to believe performance would not be made, this will serve instead of a formal putting in default. The debtor cannot take the objection that his adversary has not done what his own conduct had authorized him not to do.35 § 901. Discretion of the court in granting dissolution. Finally, it may be expressly stipulated in the contract that in case of non-performance there shall be dissolution de plein droit.36 The effect of this provision is more than to make it ance du terme, le débiteur sera en demeure. In commercial matters a letter or telegram has been held to serve to put a party in default. Rouen, 23 Dec. 1880, Jl. du Pal. 1882, 1095; Paris, 6 Nov. 1874, Jl. du Pal. 1877, 1026, and note; but the contrary was held in Paris, 1 Dec. 1874, Jl. du Pal. 1877, 1026. See also Cæn, 13 March, 1876, Jl. du Pal. 1877, 1027. It must be subsequent to the expiration of the time fixed by the contract for performance, and must be a demand for performance and not look primarily to a dissolution of the contract. Rouen, 23 Dec. 1880, Jl. du Pal. 1882, 1095. 33 Larombière, III. 149. Similarly where the performance of a contract necessarily requires time, as to cut standing timber, failure to begin the work until it has become impossible to complete it in a reasonable time makes formal putting in default unnecessary. Cass. 17 Feb. 1869, Jl. du Pal. 1863, 386. See also Rennes, 10 Dec. 1875, 34 Larombière, III. 150. 36 This clause is legal, but it must be expressly stated. If the contract provides merely that there shall be dissolution for non-performance this is taken to be but an expression of what the law implies. Larombière, III. 152. regard to immovable property, further, by Art. 1656 of the Code Civil, even though it is stipulated in the contract that there shall be dissolution de plein droit it is still necessary to put the delinquent formally in default, unless it is also stipulated that dissolution shall be " sans sommation ou mise en demeure." In contracts relating to |