PHI LOS 0 P H Y . - Classic Works of Apologetics Online

112 COlltracts oj Sake
· that anyone comes within his sh"t> doors, or onen
to treat with him. This is expected by the buyer ;
is known to be so expected by the seller; which is
enough, according tv the rule delivered above, to
make it a part of the contract between them, though
not a syllable be said about it. The breach of this
implied contract constitutes the fr~ud ~nquired after.
Hence, if you disclaim any such engagement, you
may ~et what value you please upon your property.
H, upon being asked to sell a house, }·ou answer that
the house suits your fancy or conveniency, and that
you will not turn yourself out of it under such a
price; the price fixed may be double of what the
house cost, or would fetc.h at pnbiic sale, without
any imputation of injustice or extortion UpOIl you.
If the thing siJld be damaged, or perish, between
the sale and the delivery, ought the buyer to bear
the loss, or the seller? This will. depend upon the
particular r.O!lstruction of the contract. . If the seller,
either expressly, or by implication, or by custom,
engage to deliver the goods; as if I buy a set of china,
and the china-man ask me whether he shall bring or
send them to me, and they be bioken in the conveyance;
the seller must abide by the loss. "If the thing
sold· remair! \vith the seller, at the instance, or for the
conveniency of the bl1yer, then the buyer· undertakes
the risk; as if I buy a hcrse, and mention, that I
will send for it on such a day, which is in effect de-
.I
siring that it may continue with the seller tin I do
send for it; tllen \vhatever misfortune befals the
horse in the [;: ':ec:-.n time, must be at nly cost.
And her(~~; fJllce for all, I wculd ob~erve, that innumerable
q ue~tions of this sort are determined ~olely
by custom j not tr at custom possesses any proper authority
to aher or' ascertain the nature of right and
wrong; but because the contracting parties are presumed
to IlltC!ude in their stipulation, all the condi.
tions 'vt:~ic11 C'tlS{Oll'l has annexed to ccntracts of the
same sort; and when the usage is notorious, and no