Page:The Green Bag (1889–1914), Volume 17.pdf/15

 THE GREEN BAG courts were permitted to administer the pur poses of the testator with a comparatively free hand. The testator accordingly could devise his lands absolutely without the use of the troublesome language required in a conveyance by deed. The deed is in origin a feudal instrument, and is still clogged with some of the requirements of the time of the first King Edward; but these requirements have long since become in great part only a familiar formula of words, with which everyone is acquainted and indeed satisfied. It is, in fact, doubtful whether our deeds of conveyance of the present day could be improved. The historic words, "to the use" of the grantee, so potent originally and still of such legal significance, have a suggestion of meaning, which if not the true one, is sufficient to satisfy the layman. The lay man would not strike them out. To pass on to another case, our neighbor balks much at certain phases of the law re lating to the sale of chattels. The seller is made to warrant his wares, when in point of fact, as he declares, he has done nothing of the sort; here, he insists, is a plain depar ture from sound theory — the law which makes him warrant when he did hot, either in intention or in the natural meaning of his words, that certainly is a priori law. And so it seems at first perhaps even to the lawyer. But the second thought is better, and our friend will be helped when informed that, artificial as the rule of warranty in sales of personalty is, it is after all no more than an adjustment of the balance made necessary by one of the layman's own rules, the rule that the buyer must take care how he buys — caveat emptor. The last named rule is only a legal expression of the rather low morality of sales by salesmen, who have in England and America generally insisted that if they have committed no fraud in word or act the sale is good, though the seller knew, and knew that the buyer did not know, of facts affecting the value of the goods. The law has followed their lead, in most States, and made good the bargain

notwithstanding the non-disclosure: that is to say, the law in such cases gives no re dress to the deceived buyer. But that is hard: and to make things even, the law says that the buyer may regard any statement of fact made in the negotiation by the seller, touching the nature or quality of the goods, as a warranty unless he plainly refuses to warrant. The seller had too great an advan tage under his rule of caveat emptor; the balance must be redressed. The situation might have been saved by having the rule of the sale run caveat venditor, as in the Roman law, ancient and modern; then there would have been no need of the judge-made war ranty. But in that case the seller might equally say that the law does not follow experience; it is judge-made, a priori law. Here then again, the case only needs proper explanation to reconcile it practically to the theory under consideration. The rule of joint contract next objected to, as being artificial, contrived in the back of the head, is perhaps more troublesome to explain. That does certainly appear to be a priori dogma; lawyers themselves gen erally so regard it. But surely, objection able as it is, it is not so bad as men would make it, so bad I mean in relation to sound theory. If joint contract law appears to be o priori dogma, it was at the outset, it seems, only a deduction by the ordinary process of reasoning from the prevailing feudal rule of joint tenure. If joint tenure was not to be severed (before statute) with out consent of all the joint tenants, why should joint contract, especially when the parties were joint tenants, be treated dif ferently? But in that case logic no doubt was tending to part company with theory, though probably not of purpose or even consciously; it was only a case of applying reasoning to the subject, wrongly, it seems to me, for it overlooked the effect of feudal custom, but certainly applying a familiar process to the solution of a question. Merchants, we are next reminded, have a grievance with the doctrine of considera