consideration for the other. But if two concurrent acts are stipulated, as delivery by the one party, and payment by the other, no action can be maintained by either without showing a performance of his part of the agreement. If the consideration be wholly past and executed before the promise be made, it is not sufficient, unless the consideration arose at the instance or request of the party promising, and that request must have been expressly made, or be necessarily implied, from the moral obligation under which the party was placed; and the consideration must have been beneficial to the one party, or onerous to the other. A subsisting legal obligation to do a thing is a sufficient consideration for a promise to do it; but it is a disputed and unsettled point, whether a moral obligation be, of itself, a sufficient consideration for a promise, except in those cases in which a prior legal obligation had once existed. Though the consideration of natural love and affection be sufficient in a deed, yet such a consideration is not sufficient to support an executory contract, and give it validity, either at law or in equity. A promise to do a thing may be merely gratuitous and not binding, yet if the person promising enters upon the execution of the business, and does it negligently or amiss, so as to produce injury to the other The conside party, an action will lie for this misfeasance. The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law, or sound policy, or good morals. If the contract grows immediately out of or is connected with an illegal or immoral act, a court of justice will not enforce it. But if it be unconnected with the illegal act, and founded on a new consideration, it may be enforced, although the illegal act was known to the party to whom the promise was made, and he was the contriver of the illegal act. The courts of justice will allow the objection, that the consideration of the contract was immoral or illegal, to be made even by the guilty party to the contract, for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy. A particeps criminis has been held to be entitled in equity, on his own application, to relief against his own contract, when the contract was illegal, or against the policy of the law, and relief became necessary to prevent injury to others. It was no objection that the plaintiff himself was a party to the illegal transaction. But

ration must be lawful.

Illegality of contract is a good defence, even on the part of the wrong-doer.

if a party who may be entitled to resist a claim on account of its illegality waives that privilege and fulfils the contract, he cannot be permitted to recover the money back, and the rule that portior est conditio defendentis will apply. If, however, the money be not paid over, but remains in its transit in the hands of the intermediate stakeholders, the law will not permit a third person, who is thus incidentally connected with the transaction, to set up the claim of illegality in the contract between the principal parties. An agent cannot shelter himself from paying over the money by such a plea, and the money advanced may be reclaimed. If any part of the consideration be malum in se, or the good and the void consideration be so mixed, or the contract so entire, that there can be no apportionment, the good part shall stand, and the rest be held void; though if the part which is good depends upon that which is bad, the whole instrument is void. The rules of construction of contracts are the same in courts Construction of contracts. of law and of equity, and whether the contract be under seal or not under seal. The mutual intention of the parties to the instrument is the great and sometimes the difficult object of inquiry, when the terms of it are not free from ambiguity. Plain unambiguous words need no interpretation, and subtlety and refinement upon terms would defeat the sense. Words are to be taken in their usual and obvious meaning, unless some good reason be assigned to show that they should be understood in a different sense; but if the intention be doubtful, it is to be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction, and according to the subject matter and motive. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. And the meaning is to be sought also by a reference to the usages of the place or the lex loci, according to another of the maxims of interpretation in the civil law. If it be a mercantile case, and the instrument be not clear and unequivocal, the usage of trade will frequently assist in determining the precise import of particular terms, and the certain intention declared by the use of them. The law places more reliance upon written than oral testimony; and it is an inflexible rule Effect of pathat parole evidence is not admissible to supply or contradict,

role evidence.

Contracts be tween absent

persons.

enlarge or vary, the words of a contract. Parole evidence is received, when it goes, not to contradict the terms of the writing, but to defeat the whole contract as being fraudulent or illegal; for it then shows that the instrument never had any valid operation. So when a contract is reduced to writing, all matters of negotiation and discussion on the subject, antecedent to and dehors the writing, are excluded as being merged in the instrument. In the case, however, of a latent ambiguity, or one not appearing on the face of the instrument, but arising entirely in the application of it—as when the person or object in view is not designated with precision-the maxim fitly applies, that ambiguitas verborum latens verificatione suppletur: nam quod ex facto oretur ambiguum verificatione facto tolletur. The true principle is to give the contract the sense in which the person making the promise believes the other party to have accepted it (a). Germany. Except in cases specially provided for, neither writing or other formalities are required for the validity of commercial contracts. If an offer is made among persons present, the answer must be given at once, otherwise the party offering is not bound by the offer. If an offer is made between absent persons, the party offering continues bound till the time when an answer becomes due, provided the offer has been sent regularly, and the party offering has a right to presume, for the calculation of this period, that his offer has reached the other party in proper time. If the acceptance of the offer arrives after this period, the contract is not binding. If the withdrawal of an offer reaches the other party sooner or at the same time as the offer itself, the offer is considered as not made at all. In the same manner, no acceptance is held valid if the withdrawal of it reaches the party offering sooner or at the same time as the acceptance itself. If a contract has been concluded between absent parties, the date on which the acceptance has been forwarded is considered to be the date of the conclusion of the

contract. An acceptance under any restriction or condition is a refusal of the offer, combined with a new offer. If there be a course of business between two merchants, or if a promise has been made by one of them to execute the order, the latter would be bound to signify his refusal to execute it without delay, otherwise his silence will be regarded as an acceptance of

(a) Kent's Commentaries, Vol. ii. p. 569, and following.

the order.

Even if he refuses the order, he is bound to take care of the goods and other objects which might have been sent to him at the expense of the consignor, so far as he is covered for his expenses and he can do it without injury to himself. The tribunal may order on his demand that the goods shall be deposited in a public warehouse, or in that of a third person, until the owner has made other disposition for the same (a).

Netherlands.-The Dutch law is the same as that of France. The Code of Commerce expressly refers to the Civil Code for the laws applicable to commercial affairs. But independently of other means of evidence admitted by the civil law, oral evidence is admitted in commercial matters in all cases, whatever be the amount or the nature of the object, unless commercial law prescribes a special mode of evidence.

Oral evidence admitted in

contracts.

contracts

Portugal. The provisions of the Portuguese law as regards Commercial the mode of proving commercial operations and the principles to may be by parol. be followed in the interpretation of contracts are the same as in the Spanish code, with this exception, that contracts between merchants may be agreed to verbally, whatever be the amount; and that in such a case oral evidence is only admitted after a commencement of proof by a writing admitted by the tribunal (b).

Russia-Commercial obligations are proved by acknow- Means of ledgments, by written acts, either by authentic or private con- commercial proof of tract, by commercial books, by invoices and receipts, by oral contracts. evidence, and by oath in cases determined by law. An acknowledgment before the tribunal is complete evidence against the party making it. An acknowledgment made orally out of the tribunal is not admitted, where oral testimony is not accepted without a commencement of evidence by writing. Written documents are admitted as evidence when they are presented by the parties, and where they are referred to by them. Brokers' books are complete evidence in Court, if well kept. An act done through a broker is evidence as between the parties, even where such act has not been transcribed in the register. The extract given by the broker on the demand of the tribunal is also evidence. The books and notes of a broker, even after his death, are evidence, in the same manner as the attestation upon oath of the adverse party. Invoices may serve against the party who produces them, if they prove a payment, (a) German Code, §§ 317-336.

(b) Portuguese Code, SS 241-271.

Commercial

contracts may be by deed or by parol.

Contracts by letters.

but they cannot be used in his favour. Oral evidence is not admitted in cases where the law exacts written evidence, as, for example, in disputes relative to bottomry bonds, insurances, bills of exchange, or partnership deeds. But it is admitted in all other cases. An oath is a means of evidence, but it cannot be appealed to by one party against another as a means for the decision of a dispute. The tribunal may order a supplementary oath, to complete the evidence supplied by one of the parties, and should the party called upon refuse to take it, he may be condemned (a).

Spain.-Ordinary commercial contracts are subjected to the rules of common law in all matters relating to the capacity of the contracting parties, the formalities necessary, the exceptions which may hinder the execution, and the causes of nullity, subject to the modifications and restrictions established by the special laws of commerce. Commercial obligations may be contracted by an authentic act, by the intervention of a broker, by private contract, and by correspondence. Merchants may contract verbally, and such contracts are valid, although they have not been drawn up in writing, when their value does not exceed 1,000 reals; but that such contracts may be admitted in Court, their existence and terms must be proved by the testimony of the parties or any other means of evidence. In fairs and markets the power to contract verbally is extended to contracts of the value of 3,000 reals. Contracts made within the Spanish territory can only be admitted in Court where they are written in the language of the country. The contract is perfect when the parties are agreed upon the thing which forms the object of their respective stipulations.

In negotiations entered into by correspondence, the contracts are considered concluded as soon as the party to whom an offer is made accepts it pure and simple. So long as the acceptance has not been given, the offer may be withdrawn. When the contract provides for a fine against the party who does not fulfil the conditions, the injured party may exact by legal means either the fulfilment of the contract, or the payment of the agreed indemnity. Commercial obligations may be proved, first, by authentic deeds, by the broker's note, by private contract, by an accepted invoice, by correspondence, by commercial books regularly kept, by oral evidence, and by legal presumptions (b).

(a) Russian Code of Com. §§ 11301220.

(b) Spanish Code of Com. $$ 234

263.