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

Contracts of Hazard.
11 g
exception made to it, this presumption is generally -
agreeable to the fact.·
If I order a pipe of port from a wine merchant
abroad; at what period the property passes from-the
merchant to me; whether upon the delivery of the
wine at the merchan~ s warehouse; upon its being
put on shipboard at Oporto: upon the arrival of ~e
ship in England; at its destined port; or not tIll
the wine be committed to my servants, or deposited
in my cellar, are ~JI questions, whict admit of no decision,
but what· custom points out. Whence, in
justice, as well as law, what is called the custom of
merchants, regulates the construction of mercantile
concers.
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CHAPTER VIII.
CONTRACTS OF -IIAZARD.
By Contracts of Hazard, I mean gaming and
•
Insurance.
What some say of this kind of contracts, that " one
side ought not to have any advantage over the oth.
er ," is neither practicable nor true. It is not practicable;
for that perfect equality of skill and judgment,
\vhich this rule requi~es, is seldom to be met with. I
might not have it in my power to Flay with fairness
a game at cards, billiards, or tennis; lay a wager at
a horse race; or underwrite a policy of insurance,
once in a twelvemonth, if I must wait 'till I meet with
a person, whose art, skill, and judgment in these
matters, is neither greater nor less thi'n DIy own.
Nor is this equality requisite to the justice of the
contract. One party may give to the other the whole
• It happens here, as in many cases, that what the parties ought to do, and
wh1t a judge or arbitrator would award to be dODe, maybe very different.
Wftat the parties ought to do, by virtue of their coctract, depends upon their
consciousness at the time of making it; whereas a third person find. it necessary
to found his judgment upon presumptions, which preaumptienl mly
be f,l!se. although the most probalile that he could proceed by.