Page images
PDF
EPUB

CASE VI.

Whether, and how far, doth a fraudulent bargain bind me to performance?

How far, in matter of law, you must advise with other counsel; but, for matter of conscience, take this :

:

Is the fraud actively yours, done by you to another? or else passively put by another upon you?

If the former, you are bound to repent and satisfy; either by rescinding the match, or by making amends for the injury. If the latter, wherein did the fraud lie?

If in the main substance of the thing sold, the bargain is, both by the very law of nature, and in conscience, void; yea, indeed, not at all as if a man have sold you copper lace, for gold; or alchymy-plate, for silver. The reason is well given by Casuists: There is no bargain, without a consent; and here is no consent at all, while both parties pitch not upon the same subject: the buyer propounds to himself gold and silver; the seller obtrudes copper and alchymy: the one, therefore, not buying what the other pretended to sell, here is no bargain made, but a mere act of cozenage, justly liable to punishment by all laws of God and man.

But, if the fraud were only in some circumstances, as in some faulty condition of the thing sold not before discerned, or in the over-prizing of the commodity bought; the old rule is Caveat emptor. You must, for ought I know, hold you to your bargain. But, if that faulty condition be of so high a nature, that it mars the commodity, and makes it useless to the buyer, the seller, being conscious of the fault, is injurious in the transaction; and is bound, în¦ conscience, to make satisfaction: and, if he have willingly overreached you in the price, in a considerable proportion is guilty of oppression.

It is very memorable, in this kind, that Cicero † relates to us, of a fraudulent bargain, betwixt Canius, a Roman knight and orator, and one Pythius, a banker of Syracuse. Canius, coming upon occasion of pleading to the city of Syracuse, took a great liking to the place; and, settling there, gave out that he had a great desire to buy some one of those pleasant gardens, wherewith, it seems, that city abounded; that he might there recreate himself, when he pleased, with his friends. Pythius, a crafty merchant, hearing of it, sends word to Canius, that he had a fair garden, which he had no mind to sell; but, if he pleased to make use of it for his solace, he might command it as his own; and, withal, courteously invites Canius to sup with him there, the day following. In the mean time, being a man by reason of his trade of exchange very gracious in the city, he calls the fishermen together, and desires them, that the next evening they would fish in the stream before his garden, + Cicer, de Offic. 1. iii. Sect. 58. C C

*Lessius 1. ii. c. 17. dub. 5.

and bring him what they shall have caught. Canius, in due time, comes, according to the invitation, to supper: where there was delicate provision made for him by Pythius; and store of boats bringing in their plentiful draughts of fish, and casting them down at the feet of Pythius. Canius asks the reason of this concourse of fishermen, and store of proffered provision. Pythius tells him, "This is the commodity and privilege of the place: if Syracuse yield any fish, here it is caught, and here tendered." Canius, believing the report, importunes his host to sell him the ground: the owner, after some seeming lothness and squeamish reluctation, at last yields to gratify him with the bargain. The dear price is paid down, with much eagerness. The new master of the place, in much pride of his puschase, the next day repairs early to his garden, invites his friends to a Friday feast; and, finding no boat there, asks the neighbour whether it were holiday with the fishermen, that he saw none of them there. "No," said the good man, 66 none that I know:

but none of the trade use to fish here; and I much marvelled at the strange confluence of their boats here, yesterday." The Roman Orator was down in the mouth; finding himself thus cheated by the money-changer: but, for ought I see, had his amends in his hands. He meant and desired to buy the place, though without any such accommodation; but over-bought it, upon the false pretence of an appendant commodity. The injury was the seller's: the loss must be the buyer's.

But, if such be the case, that you are merely drawn in by the fraud, and would not have bought the commodity at all, if you had not been induced by the deceit, and false oaths, and warrants of the seller; you have just reason, either, if you may, to fall off from the bargain; or, if the matter be valuable, to require a just satisfaction from the seller; who is bound in conscience, either by annulling the bargain, or abatement of price, to make good your indemnity.

In these matters of contract, there is great reason to distinguish, betwixt a willing deceit and an involuntary wrong. If a man shall fraudently sell a horse, which he knows secretly and incurably diseased, to another for sound; and that other, believing the seller's deep protestation, shall, upon the same price, bona fide, put him off to me; I feel myself injured: but whither shall I go for an amends? I cannot challenge the immediate seller; for he deceived me not: I cannot challenge the deceiver; for he dealt not with me. In human laws, I am left remediless; but, in the law of conscience, the first seller, who ought to have borne his own burthen of an inevitable loss, is bound to transfer, by the hands that sold me that injurious bargain, a due satisfaction.

Neither is it other in the fraudulent conveyances of houses or land. However the matter may be intricated, by passing through many, perhaps unknowing hands; yet the sin, and obligation to satisfaction, will necessarily lie at the first door: whence if just restitution do not follow, the seller may purchase Hell to boot.

Think not now, on this discourse, that the only fraud is in sell

ing. There may be no less, though not so frequent fraud, in buying also whether, in unjust payment, by false coin; or, by injustice of quantities, as in buying by weights or measures, above allowance; or, by wrong valuation of the substance and quality of the commodity, misknown by the seller. As for instance, a simple man, as I have known it done in the western parts, finds a parcel of ambergris cast upon the sands: he, perceiving it to be some unctious matter, puts it to the base use of his shoes, or his cartwheel: a merchant, that smells the worth of the stuff, buys it of him for a small sum; giving him a shilling or two for that, which himself knows to be worth twenty pounds: the bargain is fraudulent, and requires a proportionable compensation to the ignorant seller, into whose hands Providence hath cast so rich a booty.

Shortly, in all these intercourses of trade, that old and just rule, which had wont to sway the traffic of Heathens, must much more take place amongst Christians; Cum bonis benè agier: "That honest men must be honestly dealt with:" and, therefore, that all fraud must be banished out of their markets; or, if it dares to intrude, soundly punished, and mulcted with a due satisfaction.

CASE VII.

How far, and when, am I bound to make restitution of another man's goods remaining in my hand?

RESTITUTION is a duty, no less necessary, than rarely practised amongst Christians. The arch-publican, Zaccheus, knew that with this he must begin his conversion: and that known rule of St. Austin is in every man's mouth; "No remission without restitution*." For this act is no small piece of commutative justice, which requires that every man should have his own: most just, therefore, it is, that what you have taken or detained from the true owner should be restored; neither can it be sufficient, that you have conceived a dry and bootless sorrow for your wrongful detention, unless you also make amends to him by a real compensation.

But you are disabled to make restitution, by reason of want: your will is good; but the necessity, into which you are fallen, makes you uncapable of performance :-See, first, that it be a true, and not feigned necessity. Many a one, like to lewd cripples that pretend false sores, counterfeit a need that is not; and shelter themselves in a willing jail, there living merrily upon their defrauded creditor, whom they might honestly satisfy by a well improved liberty this case is damnably unjust. But, if it be a true necessity of God's making, it must excuse you for the time; till the same hand, that did cast you down, shall be pleased to raise you up again: then, you are bound to satisfy; and, in the mean time, lay the case truly before your creditor, who, if he be not merciless,

* Aug. Epis. 54. ad Macedon.

where he sees a real desire and endeavour of satisfaction, will imitate his God in accepting the will for the deed, and wait patiently for the recovery of your estate.

You ask now, to whom you should tender restitution :—

To whom, but the owner? "But he," you say, " is dead.” That will not excuse you: he lives still in his heirs. It is memorable, though in a small matter, which Seneca reports of a Pythagorean Philosopher at Athens, who, having run upon the score for his shoes at a shop there, hearing that the shoemaker was dead, at first was glad to think the debt was now paid; but, straight recollecting himself, he says within himself, "Yet, howsoever, the shoemaker lives still to thee, though dead to others;" and, thereupon, puts his money into the shop, as supposing that both of them would find an owner. It is a rare case, that a man dies, and leaves no body in whom his right survives. But, if there be neither heir, nor executor, nor administrator, nor assign, The poor, saith our Saviour, ye shall have always with you: make thou them his heir: turn your

debt into alms.

Object. "But, alas!" you say, "I am poor myself: what need I then look forth for any other? Why may not I employ my restitution to the relief of my own necessity?"

Sol. It is dangerous, and cannot be just, for a man to be his own carver altogether, in a business of this nature. You must look upon this money, as no more yours than a stranger's: and, howsoever it be most true, that every man is nearest to himself, and hath reason to wish to be a sharer, where the need is equal; yet it is fit this should be done, with the knowledge and approbation of others. Your pastor, and those other that are by authority interested in these public cares, are fit to be acquainted with the case. If it be in a matter meet to be notified, as a business of debt or pecuniary engagement, let their wisdom proportion the distribution: but, if it be in the case of some secret crime, as of theft or cozenage, which you would keep as close as your own heart, the restitution must be charged upon your conscience; to be made with so much more impartiality, as you desire it more to be concealed: herein have a care of your soul, whatever becomes of your estate.

As for the time of restitution, it is easily determined, that it cannot well be too soon, for the discharge of your conscience: it may be too late, for the occasions of him to whom it is due. Although it may fall out, that it may prove more fit to defer, for the good of both wherein charity and justice must be called in as arbitrators. The owner calls for his money, in a riotous humour; to mis-spend it upon his unlawful pleasure: if your delay may prevent the mischief, the forbearance is an act of mercy. The owner calls for a sword deposited with you, which you have cause to suspect he means to make use of for some ill purpose: your forbearing to restore it is so both charitable and just, that your act of delivery of it may make you accessary to a murder. Whereto I may add, that, in the choice of the time, you may lawfully have some respect to yourself: for, if the present restitution should be to your utter un

DECADE I. OF PROFIT AND TRAFFIC. 389 doing, which may be avoided by some reasonable delay, you have no reason to shun another's inconvenience by your own inevitable ruin in such case, let the creditor be acquainted with the necessity, his offence deprecated; and rather put yourself upon the mercy of a chancery, than be guilty of your own overthrow.

But, when the power is in your hand, and the coast every way clear, let not another man's goods or money stick to your fingers; and think not that your head can long lie easily, upon another man's pillow.

"Yea, but," you say, "the money or goods miscarried, either by robbery or false trust, ere you could employ them to any profit at all:"This will not excuse you: after they came into your power, you are responsible for them. What compassion this may work in the good nature of the owner for the favour of an abatement, must be left to his own breast: your tie to restitution is not the less; for, it is supposed, had they remained in the owner's hands they had been safe. If it were not your fault, yet it was your cross, that they miscarried; and who should bear your cross, but yourself?

Shortly, then, after all pretences of excuse; the charge of wise Solomon must be obeyed: Withhold not good from the owners thereof, when it is in the power of thy hand to do it; Prov. iii. 27.

CASE VIII.

Whether, and how far, doth a promise, extorted by fear, though seconded by an oath, bind my conscience to performance?

A MERE promise, is an honest man's strong obligation; but, if it be withal backed with an oath, the bond is sacred and inviolable. But, let me ask you what promise it is, that you thus made and bound.

If it be of a thing unlawful to be done, your promise, and oath, is so far from binding you to performance, that it binds you only to repentance that ever you made it. In this case, your performance would double and heighten your sin : it was ill, to promise; but it would be worse, to perform. Herod is, by oath, engaged, for an indefinite favour to Salome: she pitches upon John Baptist's head: he was sorry for such a choice; yet, for his oath's sake, he thinks he must make it good: surely, Herod was ill-principled, that he could think a rash oath must bind him to murder an innocent: he might have truly said, this was more than he could do: for that we can do, which we can lawfully do.

But, if it be a lawful thing that you have thus promised and sworn, though the promise were unlawfully drawn from you by fear, I dare not persuade you to violate it.

It is true, that divers learned Casuists hold, that a promise drawn from a man by fear is void, or at least revokable at pleasure;

« EelmineJätka »