Page:The Green Bag (1889–1914), Volume 17.pdf/334

 EDITORIAL DEPARTMENT should steadily and persistently endeavor to increase its power and importance. The result is that a power given the Senate to prevent the President from overturning the government and destroying the liberties of the people threatens now to seriously hamper the Presi dent in the exercise of his executive powers to the detriment of the people's interests at home and to the imminent peril of the rights of American citizens abroad." CONSTITUTIONAL LAW Control)

(Corporations, Federal

THE discussion aroused by Mr. Garfield's proposal of "Federal Control of Corporations" is continued by Thomas Thatcher in the April Yale Law Journal (V. xiv p. 301). He insists that the proposal to regulate incorporation under the guise of regulating commerce is a stretch of the real limitations of the Constitu tion, and he calls attention to the important fact that while the courts may be unable to question the motives of Congress and for that reason the legislation may be held constitu tional, the duty of Congressmen themselves to act within the Constitution must not be for gotten. Assuming, however, the propriety of legislation by Congress under the cloak of a constitutional power for a purpose outside of its jurisdiction for an end which is desirable, he contends that the evils of over-capitaliza tion and dishonesty in management are com pletely remediable by state legislation and afford no reason for federal control. He sub mits that the only reason by which it can be justified is the desire to curb the great corpo rations because of evils relating to competi tion, but he contends that this evil is not limited to the corporate form and that no practicable scheme of regulation has yet been proposed. CONTRACTS

(Reasonable Time)

IN the Canada Law Journal for April (V. xli, p. 305), Frank E. Hodgkins discusses "The Basis of Reasonable Time," as con cerned in the performance of contracts. "Many elements will enter into the settling of the exact limits of such a time. But they are all worked out, not to demonstrate the

manufacturer's good faith per se, but to show that he is in the position of having so per formed his obligation, according to the con tract, as to enable him to compel performance of the latter by the purchaser. The proof is idle except for that purpose. Hence it is really reasonable time principally from the standpoint of the obligee, but modified by the situation of the obligor and always having regard to the requirements of the contract. For, while it may be reasonable under all the circumstances of the one, it may not be so viewed from the situation of the other. Both sides must be considered, but it is obvious that the ultimate test is that which, subject to the expressed terms of the contract, satisfies the requirements of the person to be obligated, otherwise it must fail of proof." . . . "It was at one time thought that the actual or supposed circumstances present to the minds of the contracting parties were those which must alone be considered in determin ing whether the time occupied was reasonable, i.e., reasonable under those particular circum stances. That meant the exclusion of those actually arising, but not contemplated. This led to strange results, enabling one party to hold the other by reason of fictitious and not actual occurrences, and reasonable time be came therefore easily calculable. The modern view is that the actual conditions of the mo ment, and the real difficulties to be then encountered, are the real factors for consider ation." . . . "Whether time is fixed or left to be deter mined by the court, it is only one element in the contract. It may or may not be essential. If it is not vital, then the limit of reasonable time, when fixed by the court, is as if it had been mentioned in set terms in the contract. When, however, from the nature of the subject matter, or the surrounding circumstances, or the commercial object of the undertaking, the court determines that the time of per formance must necessarily be of supreme im portance, it either holds the parties explicitly to the time as named in the contract, or in defining unspecified time adopts the strict standard which requires a high regard for the prompt and business-like performance of the obligation. This is what is meant by time being of the essence of the agreement."