Harvard Law Review/Volume 1/Issue 1/Reviews
The Law of Contracts. By J. I. Clark Hare, LL D. Boston: Little, Brown & Co. One volume. 8 vo. Law Sheep. 714 pages.
This book will not satisfy the wants of the case hunter, but to those interested in the study of law as a science it cannot be too highly recommended. Nowhere do we remember to have seen the development of the law of assumpsit so satisfactorily explained as here. That it was originally regarded as an action of tort is well known, but that for acts of omission the promisor was originally held liable as for a deceit practised on the party furnishing the consideration has not been generally known, and for a very clear demonstration of the latter theory we are indebted to Mr. Hare.
Quære, however, if, viewing the law of assumpsit as one of contract, the author is not influenced too much by the notion of injury or detriment suffered in fact by the party performing the consideration. For example, in discussing the law of gratuitous bailment, he states, and we think correctly, that the liability of the gratuitous bailee is not a liability for breach of contract, but he gives as reasons: 1. That the bailment is of no benetit to the bailee. 2. That the bailment is not a detriment, but a benefit, to the bailor. But is he not here using the word “detriment” in its popular, rather than in its legal, sense? Regarding detriment as the surrender of a legal right, the difficulty establishing a contract on the part of the gratuitous bailee is to find as a fact that he requested the bailor to exchange the possession of the property for his promise.
We are glad that the author takes occasion to distinctly repudiate the notion that a contract under seal implies a consideration, and states the law as it is, that none is needed. We regret that he has not dealt with the law of negotiable paper in the same way, for the notion that a bill or note delivered as a gift to the payee cannot be enforced by him is modern (see 2 Bl. Com., 446), and at the present day a consideration, as that word is used with reference to a simple promise, is not required in order that the payee of negotiable paper may recover thereon.
Those who have struggled with the phrases “executed and executory considerations” will rejoice that the author has classified contracts as unilateral and bilateral; but we cannot agree with him when he says that, because our law requires a consideration for a promise, the terms are less applicable to the common than to the civil law, for in neither system is the promisee in a unilateral contract ever bound, and in any system of law in a bilateral contract each party is bound. In fact, here, as elsewhere, the author, in distinguishing between the common and the civil law, is inclined, we think, to lay too great stress on the fact that a consideration is required in the one and not in the other. For example, in support of the prevailing view, that a bilateral contract is complete on the mailing of the letter of acceptance, the suggestion is made that this view is correct, for the reason that the question ts to be treated as one of performance, and is not to be tested by the rules applicable to promises. At the same time he recognizes that in a bilateral contract each party is bound by a promise, and that the contract is binding because the one promise is the consideration for the other (see page 336), and he admits (see page 360) that the acceptance cannot be effectual as a promise until it reaches the offerer.
As the phrase “implied promise” is used to designate, 1. A class of cases where there is in fact a contract, the promise being established by conduct rather than the language of promise. 2. A class of cases where there is no contract, but where, on principles of enrichment, i. e., to prevent one from unjustly profiting at the expense of another, the law imposes an obligation, and gives the remedy of general assumpsit,—it is to be regretted that one so well acquainted with the distinction did not separate the cases in his treatment of them, and use the phrase quasi ex contractu as to the latter.
The want of space prevents our referring at length to the remaining chapters of the book. The author has, however, treated the topics included in those chapters, as he has those to which we have more especially referred, with great care and thoughtfulness, and it is to be hoped that he will increase the obligation which the profession is under to him for his present publication by writing a treatise on those topics of the law of contracts not embraced in the present volume.
W. A. K.
The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. By Frederick Pollock. London: Stevens & Sons; Boston: Charles C. Soule. Octavo, ix. and 515 pages.
Mr. Pollock is well known in this country as the editor of the Law Quarterly Review, and the author of a treatise on the Principles of Contract. One great merit of the book he has just given us is its brevity and clearness. The principles of the law of torts are here stated in a form easy to read and to understand, and for that reason this work will probably become a favorite with students. The book contains several novel features. Leading American cases are frequently cited in the notes and referred to in the text, and have evidently had weight in the statement of several important principles. The references to the lex aquilia are interesting, and justify the author’s assertion that this title of the Digest deserves more attention at the hands of English lawyers than it has ever received.
The general scope and object of the work are thus stated in the preface: “The purpose of this book is to show that there really is a Law of Torts, not merely a number of rules of law about various kinds of torts—that this is a true living branch of the Common Law, not a collection of heterogeneous instances.” In carrying out this purpose the author has divided his work into two parts, the first being a discussion and review of the general principles common to the whole subject, viz., the grounds of liability, exceptions from liability, and remedies. The second part is devoted to the several distinct kinds of actionable wrongs. In this branch of the subject there is less scope for theory and general discussion than in the first. It is tied down by the old common-law forms of action, and to be complete should include a large amount of historical matter, explaining the origin and use of those forms of action, as well as a statement of the principles now established and acted upon as law. If, for example, some author should show clearly the origin of the action of trover, and trace minutely the successive steps by which it practically swallowed up the action of detinue, and became a concurrent remedy with trespass de bonis asportatis, he could hardly fail to throw light on the difficulties of the existing law of conversion. Mr. Pollock has given no pace to historical details, but he has stated the law as it is with accuracy and clearness. The subject of Negligence, for example, usually so confused and voluminous, is well covered in a single chapter of about forty pages.
To a student seeking a general theory of the law of torts, the principle of classification adopted by Mr. Pollock will probably be the most interesting part of the book. One form of its statement, found on page 17, is in these words: “Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus), or of a failure to observe due care and caution, which has similar though not intended or expected consequences (culpa). We have, moreover, apart from the law of trespass, an exceptionally stringent rule in certain cases, where liability is attached to the befalling of harm without proof of either intention or negligence.” In other words, all torts may be divided into these three classes: 1. Cases where an actual intention to do harm is necessary. This includes but a very small part of the law of torts at present, though malicious prosecution may be cited as an example. 2. Cases where the actor is liable only for failing to act in the circumstances up to the standard set by the law, that is, the conduct of a prudent man. This covers the great bulk of the law of torts, including the subject of Negligence. 3. Cases where the actor is liable, regardless of intention or negligence, that is, he acts at his peril. The type of this class of cases is Fletcher v. Rylands. This division embraces the whole subject, and all torts might be arranged and discussed under these heads, regardless of the forms of action. For example, trespass by entering upon real estate, and conversion by an innocent purchaser from a wrongful possessor, both being cases where a man is liable regardless of intention or negligence, belong, in a strictly scientific arrangement, under the same title with Fletcher v. Rylands. Such an arrangement might be a bold step at present, but Mr. Pollock’s book will certainly do good service in preparing the way for the final statement and classification of the law of torts in the future.
Constitutional Prohibitions. By Henry Campbell Black, of the Williamsport (Pa.) bar. Little, Brown & Co., Boston. 316 pp. 8vo. This “essay,” as the author styles it, is divided into three parts. The first and third treat respectively of the application of that clause of the Constitution of the United States (Art. I., Sect. 10) which prohibits a State from impairing the obligation of contracts, and of the clauses (Art. I., Sects. 9 and 10) which forbid both Congress and the States to pass ex post facto laws and bills of attainder. Part II. treats of the way in which the States have dealt with retroactive laws not forbidden by the clauses above mentioned.
The author favors the historical method of treating his subject, and has applied it wherever practicable, e. g., in showing that a State may constitutionally pass insolvent laws. The book is not full of original discussions, or of attempts to show what the law ought to be. To give a clear statement of the law as it exists seems to be the dominating idea. And this has been very successfully done. If the decisions on any point are in harmony, the principle is given clearly and concisely. If, however, there is a seeming conflict among the cases, every endeavor is made to bring them into line along some general principle, and usually with good results; as, for instance, in formulating the rule that remedies may be changed by State legislatures provided that a substantial remedy is left.
Exceptions may perhaps be taken to certain things in the book, as, for example, to the use of the phrase “executory contracts” in Sect. 22, where it is said that “executory contracts may be cancelled.” What is meant is that offers to make a contract or preliminaries to a contract do not bind the State; a statement which is undoubtedly true. But when the contract, even though executory, is once complete, it cannot be impaired by the State. Again, in Sect. 63 it is said that a grant by the State of the privilege of pursuing any business which is against public health and public morals is not a contract, and that a statute revoking the grant is not unconstitutional. What seems the correct explanation of the constitutionality of such a statute is given by the author himself in Sect. 72, where he makes the grant liable to the condition subsequent that the grantor may rescind if the public need requires.
The value of the book lies in its being the first work of any size upon the subject, in its general accuracy of statement, and in its reliable citation of cases. The value is enhanced by a full table of cases cited, and by a good index.
Talks about Law. [A Popular Statement of What Our Law Is and How it is Administered, by Edmund P. Dole. Crown 8vo. 516 pp. Boston and New York, Houghton, Mifflin, & Co. Riverside Press, 1887.]
This is not a law book. Its object is, rather, to take the place of many law books with the general reader, by combining in one work a brief and general statement of the origin and development of the law and of the mode in which it is administered by our courts. Treating of so broad a subject in so narrow a limit, the book must necessarily be unsatisfactory to the lawyer. To the non-professional reader, however, it affords an easy means of acquiring a general and cursory knowledge of the principles of the various branches of the law. It is a question if this object would not have been accomplished in a more satisfactory manner by omitting some of the more unimportant chapters, such as that on Pulpit and Pew, and by utilizing the space thus saved in a more careful explanation of the remaining subjects. The chapters on these side issues, however, such as that on the “Benefit of Clergy,” are among the more interesting which the book contains. The repetition of New Hampshire cases and New Hampshire courts gives the work a somewhat local interest, which might well have been avoided in a book for the general reader.
M. C. H.
The National Reporter System (published by the West Publishing Company, St. Paul, Minn.) has begun the publication of the American Digest, which gives a full and complete digest of the points decided in all the current cases reported in the various publications of its system. To those who use this system (and the number is large) the digest will be of great value, as it will give references to the respective reporters in which the cases are reported in full. Of little less value will it be to those who, though making no use of the various reporters, nevertheless desire a concise statement of the various points decided by the State Courts of last resort and by the U. S. courts, long before they are incorporated in any regular digest.
The Student’s Kent. [By Edward F. Thompson. Boston and N. Y., Houghton, Mifflin, & Co., Riverside Press, 1886. Sm. 8vo. 1 338 pp.] This little book of 330 pages gives, in a condensed form, the principles as laid down by Kent, with the modifications made since his time. It is as comprehensive as the original, and at the same time is so handy and well indexed that it can be of service to the active lawyer making a hasty search for elementary principles as well as to the young student just entering upon the study of the law.
H. M. W.
The Principles of the Law relating to the Discharge of Contracts, by Robert Ralston, of the Philadelphia bar. 8vo. 60 pp. Philadelphia, T. & J. W. Johnson & Co., 1886.