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). Oral evidence admitted in Netherlands.-The Dutch law is the same as that of France. The Code of Commerce expressly refers to the Civil Code for contracts. 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. contracts may be by parol. proof of Portugal. The provisions of the Portuguese law as regards Commercial the mode of proving commercial operations and the principles to 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 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. CHAPTER X. CONTRACT OF SALE. SECTION I. NATURE AND REQUISITES OF THE CONTRACT. BRITISH LAW. SALE is a contract by which one transfers or undertakes to transfer, and another receives or undertakes to receive and to pay for, certain articles at a certain price. The distinction between sale and barter is this: in sale the consideration consists of some price or recompence in value, in barter there is only a commutation or an exchange of goods, and no lapse of time will turn a contract of barter into a contract of sale (a). Three things are requisite to a contract of sale, viz., the consent of the contracting parties, a lawful and existing subject matter, and the price; whilst in this, as in all other contracts, the transaction must be founded on good faith, the established principle being that fraud gives to either parties a right to avoid the contract (b). Sale as dis tinct from barter. There is no sale till the terms of the contract are mutually The consent. and finally agreed upon (c). And till that is attained, either party may retract a contract of sale. There may be an offer on the one side, and an acceptance on the other, but it is only where both meet together and a mutual and simultaneous consent is obtained that a contract is complete (d). The consent is not valid if given under error, by violence, or by fraud. That an error be sufficient to annul a contract, it must be upon the subject matter itself, and not upon any of its incidents. An error committed as to the quality of the article is not sufficient to annul the contract. So a consent extracted by violence is (a) Harrison v. Luke, 14 M. & W. 139. (b) Stevenson v. Newham, 13 C. B. 285. (c) Jackson v. Galloway, 6 Scott, 192. (d) Routledge v. Grant, 1 M. & P. 717. Sale by letters. Subject matter must be lawful. invalid and void. No person can be forced to do any business. A consent given upon a fraudulent misrepresentation is invalid, but fraud only gives a right to avoid a purchase (a). In sales by auction, the blow of the hammer is held to be a sufficient sign of mutual consent (b). Where goods are offered by letters, circulars, or catalogues, and time elapses before the acceptance can be obtained, the -party offering undertakes no continuous obligation to deliver the goods, and on the receipt of the acceptance he is at liberty to change his mind and refuse to sell. When, however, an offer is made to sell certain goods, receiving an answer by return of post, the party offering is considered in law as making, every instant the letter is travelling, the same identical offer; and the moment the offer is accepted, it entitles the buyer to recover in an action for not completing the contract (c). In order to constitute an agreement by letter, the answer to the written proposal must be a simple acceptance of the terms proposed, without the introduction of new and different terms. If either party, previous to the acceptance being given, introduces new terms, there would be no contract (d). The consent may be given verbally, or in writing, and may also be implied by the act of the party. Every species of property, whether real or incorporeal, present or future, may be sold and purchased, provided it be not the subject of statutory restriction. Thus, sales of public offices, and matters touching the administration of justice, or the collection of the revenue, or of any office in the gift of the Crown, are void, though sales of commissions in the army at regulated prices are allowed (e). Sales of spirituous liquors are prohibited, unless delivered in quantities amounting to more than twenty shillings at one time (f). Sales of objects contrary to public policy and morality are also void (g). And sales of goods made abroad for the express purpose of being smuggled into this country, the (a) White . Garden, 10 C. B. 919; (d) Holland v. Eyre, 2 Sim. & Stu. (e) 5 & 6 Edw. 6, c. 16, s. 23, extended to Scotland by 49 Geo. 3, c. 126; Barwick v. Reade, 1 H. B. 627; Lidderdale v. The Duke of Montrose, 4 T. R. 248. (f) 24 Geo. 2, c. 40, s. 12. (g) Bowry v. Bennet, 1 Camp. 348; Fores v. Johnes, 4 Esp. 97. |