operation of statutes, such rights can now be assigned. Special provision has been made for assigning rights under certain contracts, e.g. in the case of policies of insurance and shares in companies. In all these cases the provisions of the statute must be observed.

The right to receive money under a bill of exchange or a promissory note may be transferred by delivery of the bill or note if it is payable to bearer, and by endorsement and delivery if it is payable to order (§ 246). No notice is required to be given to the party liable to pay; it is not necessary for the assignee to show that he gave any consideration; and he is not affected by any defect in the title of prior holders. These characteristics are summed up in the word "negotiable." A bank-note is an example of a negotiable instrument. It can be transferred by delivery, the transferee has not to give notice to the bank that it has come into his hands, and he is entitled to receive gold in exchange for it from the bank named, though some previous holder may have stolen it.

All debts, i.e. rights to receive money, may be assigned in writing signed by the assignor, provided the assignment be absolute. The assignee must give notice of the assignment to the person liable to pay, whose consent, however, is not necessary. The assignee takes subject to any "equities," i.e. claims to which the debt was subject previous to assignment.

§ 101. Assignment of Rights and Liabilities by Operation of Law. - We have seen that a liability under a contract cannot be assigned to another by the party upon whom the liability is cast by the contract. What an individual cannot do, the law may do, and in some cases does it. For instance, the purchaser of a lease is by law bound to pay the rent and to discharge other liabilities imposed by the lease on the original lessee. If a husband receives property through his wife, he is liable to the debts contracted by her before marriage to the extent of such property. Death often operates as a transfer of both rights and liabilities. For instance, the legal representatives of a deceased man take all his personal property; all liabilities

attached to such property pass to them as well as the benefit of all rights of action. On bankruptcy all rights of action belonging to the bankrupt pass to the trustee, though as far as liabilities are concerned the trustee can in some cases disclaim them.

E

CHAPTER VIII

PERFORMANCE, BREACH, AND DISCHARGE OF CONTRACTS

§ 102. Duty of Performance.—The parties to a contract are bound to carry out their respective promises. If the contract be silent as to the mode of performance, it must be performed in accordance with the usage of the place where it was made. In all cases the performance must be a bona-fide performance, and not a compliance with the mere letter of the agreement. Where no time is fixed, performance must be within a reasonable time. In some cases the performance by one party is made to depend on something to be done previously by the other; where this happens, performance is not due until the act agreed upon has been performed.

§ 103. Payment.—When a sum of money has to be paid, the payment, unless the parties otherwise agree, should be made in legal-tender money (§ 154). A bill or note is often taken in payment of a debt, but as a rule this is to be regarded as merely extending the time for payment, so that if the money be not paid when the bill or note is due, the creditor may still sue on the original contract. But if the creditor has taken the bill or note in discharge of the debt, then he has to rely on the rights of action given by the bill, and the original contract is at end.

§ 104. Tender.-In the case of a sale of goods, a tender of the price or of the goods amounts to performance on the part of the person tendering. In the case of a tender of goods, the tender should be unconditional, and

be made at the proper time and place, and the person to whom the tender is made should have a reasonable opportunity of examining the goods.

In the case of money, such a sum should be offered as will enable the creditor to take exactly what is due without giving change (§ 154).

BREACH OF CONTRACT

§ 105. Effect of Breach.—A breach of contract by one party gives the other party a right of action for damages, and, in the following cases, discharges such other party from the necessity of performing his share of the agreement: (1) when the party renounces his liabilities; (2) when he makes it impossible that he can fulfil the contract; and (3) when he totally fails to perform what he has promised.

§ 106. (1) Renunciation.—Where one party gives the other notice that he will not carry out a contract, the latter may treat the contract as at an end, and bring an action for damages. For instance, if A. engage B. as a servant from the 1st June, and before the 1st of June A. writes to B. that he will not require his services, B. may bring an action for damages at once against A. In order that a renunciation should amount to a discharge of a contract, it is necessary (1) that the renunciation should be of the whole contract, and (2) that the renunciation should be treated as a discharge. If subsequent to renunciation performance is insisted on, the contract remains.

§ 107. (2) Impossibility.—If one of the parties. to a contract by his own act renders it impossible for him to perform it, the other party is excused performance, and may at once bring an action for damages. For example, if A. gives B. an option (which B. accepts) to purchase an article within a certain time, but before the option is exercised sells it to some one else, the contract is at an end (§ 87).

§ 108. (3) Failure to Perform.-Where the performance of a promise forms the consideration for the perform

ance of another promise, failure to perform the one excuses the performance of the other. As for example, where A. buys goods and promises to pay for them on delivery, here delivery must be made before payment can be demanded. But if the promise and not the performance of it was the real consideration on either side, the contract must be performed on one side though it be broken on the other, the injured party having his remedy in an action for damages. As for example, where A. bought land from B. and covenanted to pay for it on the 1st April, and B. covenanted to convey the land to A., no time being fixed for the conveyance: as soon as the 1st April arrived, B. was entitled to sue for the purchase money though he had not conveyed nor offered to convey the land to A.

$109. Remedies for Breach.-We have seen that in many cases of breach of contract the party injured is discharged from performance of his promise. Apart from this, he is entitled to bring an action for damages. The amount of damages recovered is supposed to represent the loss sustained so far as it was in contemplation of the parties. Where the parties cannot agree on the amount, it has to be fixed by a judge or a jury.

Instead of awarding damages, the courts might order the defaulting party to perform the contract. This course is usually adopted in regard to sales of land, but in the case of the sale of goods the courts consider that damages are a more appropriate remedy: and specific performance is only decreed when the articles sold cannot on account of their intrinsic qualities be represented adequately by damages.

DISCHARGE

§ 110. Discharge of Contracts.-A contract may be discharged or rescinded in the following ways:

1. By consent. The parties may agree before performance that the contract shall be no longer binding. If the contract has been under seal, the discharge must also be under seal.

The discharge may take