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CONVEY A N C I N G

authority for selfish ends. They are not forbidden to take benefits from those who depend on them or put their trust in them; but if they do, and the givers repent of their bounty, the whole burden of proof is on the takers to show that the gift was in the first instance made freely and with understanding. Large voluntary gifts or beneficial contracts, outside the limits within which natural affection and common practice justify them, are indeed not encouraged in any system of civilized law. Professional money-lenders were formerly checked by the usury laws : now that no rate of interest is in itself unlawful, courts and juries have shown a certain astuteness in applying the rules of law as to fraud and undue influence—the latter with certain special features— to transactions with needy 2‘expectant heirs” and other improvident persons which seem on the whole unconscionable. In the case of both fraud and undue influence, the person entitled to avoid a contract may, if so advised, ratify it afterwards ; and ratification, if made writh full knowledge and free judgment, is irrevocable. A contract made with a person deprived by unsound mind or intoxication of the capacity to form a rational judgment is on the same footing as a contract obtained by fraud, if the want of capacity is apparent to the other party. There are many cases in which a statement made by one party to the other about a material fact wall enable the other to avoid the contract if he has relied on it, and it was in fact untrue, though it may have been made at the time with honest belief in its truth. This is so wherever, according to the common course of business, it is one party’s business to know the facts, and the other practically must, or reasonably may, take the facts from him. In some classes of cases even inadvertent omission to disclose any material fact is treated as a misrepresentation. Contracts of insurance are the most important; here the insurer very seldom has the means of making any effective inquiry of his own. Misdescription of real property on a sale, without fraud, may according to its importance be a matter for compensation or for setting aside the contract. Promoters of companies are under special duties as to good faith and disclosure which have been worked out at great length in the modern decisions. But company law has become so complex within the present generation that, so far from throwing much light on larger principles, it is hardly intelligible without some previous grasp of them. Sometimes it is said that misrepresentation (apart from fraud) of any material fact will serve to avoid any and every kind of contract. It is submitted that this is certainly not the law as to the sale of goods or as to the contract to marry, and therefore the alleged universal rule does not exist. But it must be remembered that parties can, if they please, and not necessarily by the express terms of the contract itself, make the validity of their contract conditional on the existence of any matter of fact whatever, including the correctness of any particular statement. If they have done this, and the fact is not so, the contract has no force ; not because there has been a misrepresentation, but because the parties agreed to be bound if the fact was so and not otherwise. It is a question of interpretation whether in a given case there was any such condition. Mistake is said to be a ground for avoiding contracts, and there are cases which it is practically convenient to group under this head. On principle they seem to be mostly reducible to failure of the acceptance to correspond with the offer, or absence of any real consideration for the promise. In such cases, whether there be fraud or not, no contract is ever formed, and therefore there is nothing which can be ratified—a distinction which may have important effects. Belief against mistake is given where

parties who have really agreed, or rather their advisers, fail to express their intention correctly. Here, if the original true intention is fully proved—as to which the court is rightly cautious—the faulty document can be judicially rectified. By the common law an infant (t.e., a person less than twenty-one years old) was bound by contracts made for “necessaries,” i.e., such commodities as a jury holds, and the court thinks they may reason- ,sa y% ably hold, suitable and required for the person’s condition ; also by contracts otherwise clearly for his benefit; all other contracts he might confirm or avoid after coming of age. An extremely ill-drawn Act of 1874 absolutely deprived infants of the power of contracting loans, contracting for the supply of goods other than necessaries, and stating an account so as to bind themselves ; it also disabled them from binding themselves by ratification. The liability for necessaries is now declared by legislative authority in the Sale of Goods Act, 1893. Practically, people who give credit to an infant do so at their peril, except in cases of obvious urgency. Married women were incapable by the common law of contracting in their own names. At this day they can hold separate property and bind themselves to the extent of that property—not personally—by contract. The law before the Married Women’s Property Acts (1882 and 1893, and earlier Acts now superseded and repealed) was a very peculiar creature of the Court of Chancery; the number of cases in which it is necessary to go back to it is of course decreasing year by year. But a married woman can still be restrained from anticipating the income of her separate property, and the restriction is still commonly inserted in marriage settlements. There is a great deal of philosophical interest about the nature and capacities of corporations, but for modern practical purposes it may be said that the legal powers of British corporations are directly or indirectly determined by Acts of Parliament. For companies under the Companies Acts the controlling instrument or written constitution is the memorandum of association. Company draftsmen, taught by experience, nowadays frame this in the most comprehensive terms. Questions of either personal or corporate disability are less frequent than they were. In any case, they stand apart from the general principles which characterize our law of contract. Authorities.—History : Ames. “The History of Assumpsit,” Harvard Law Rev. ii. 1, 53. Cambridge, Mass., 1889.—Pollock and Maitland. History of English Law, 2d ed., ii. 184-239. Cambridge, 1898. Modern: Pollock, article “Contract” in Encyclopaedia of the Laws of England, vol. iii., London, 1897, a technical summary of the modern law. Of the text-books, Anson, English Law of Contract, is now in a ninth edition, 1899 ; Harriman, Law of Contracts, in a second, 1901 ; Pollock, Principles of Contract, in a seventh, 1902.—0. W. Holmes (afterwards Chief Justice of Massachusetts), The Common Law, Boston, Mass., 1881, is illuminating on contract as on other legal topics, though the present writer cannot accept all the learned judge’s historical conjectures. (f. Po.) Conveyancing: is the art or science of effecting the transfer of property, or modifying interests in relation to property, by means of written documents. In early legal systems the main element in the transfer of property was the change, generally accompanied by some public ceremony, in the actual physical possession: H!story, the function of documents, where used, being merely the preservation of evidence. Thus, in Great Britain in the feudal period, the common mode of conveying an immediate freehold was by feoffment with livery of seisin —a proceeding in which the transferee was publicly invested with the feudal possession or seisin, usually through the medium of some symbolic act performed in