I suppose it will be allowed, that to advance a direct falsehood in recommendation of our wares, by ascribing to them some quality which we know that they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know that they have. The motives and the effects of actions are the only points of comparison, in which their moral quality can differ; but the motive in these two cases is the same, viz. to procure a higher price than we expect otherwise to obtain: the effect, that is, the prejudice to the buyer, is also the same; for he finds himself equally out of pocket by his bargain, whether the commodity, when he gets home with it, turn out worse than he had supposed, by the want of some quality which he expected, or the discovery of some fault which he did not expect. If therefore actions be the same as to all moral purposes, which proceed from the same motives and produce the same effects; it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but none to conceal its faults.

It adds to the value of this kind of honesty, that the faults of many things are of a nature not to be known by any, but by the persons who have used them; so that the buyer has no security from imposition, but in the ingenuousness and integrity of the seller.

There is one exception, however, to this rule; namely, where the silence of the seller implies some fault in the thing to be sold, and where the buyer has a compensation in the price for the risk which he runs; as where a horse, in a London repository, is sold by public auction, without warranty; the want of warranty is notice of some unsoundness, and produces a proportionable abatement in the price.

To this of concealing the faults of what we want to put off, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one who had been robbed upon the highway should allege, that he had a

right to reimburse himself out of the pocket of the first traveller he met: the justice of which reasoning the traveller possibly may not comprehend.

Where there exists no monopoly or combination, the market price is always a fair price; because it will always be proportionable to the use and scarcity of the article. Hence, there need be no scruple about demanding or taking the market price; and all those expressions, "provisions are extravagantly dear," corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller.

If your tailor or your draper charge, or even ask of you, more for a suit of clothes than the market price, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge, dishonest; although, as the man's goods were his own, and he had a right to prescribe the terms upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deal with his customers at a market price; because it is upon the faith and opinion of such an engagement, that any one comes within his shop doors, or offers to treat with him. This is expected by the buyer; is known to be so expected by the seller; which is enough, according to 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 fraud inquired after.

Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you 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 fetch at a public sale, without any imputation of injustice or extortion upon you.

If the thing sold 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 particu

with. I might not hav
finess a game
card

ager at a horse race; rance, once in a twelve eet with a person whose these matters is neither gre For is this equality requis f the stake, if he please, an One party may gi atly accept it, if it be given e may one give to the other hat is exactly the same thing hance of winning the whole. The proper restriction is, that vantage by means of which the this is an advantage taken w Although the event be still an un atage in the chance has a Buch of the stake as that value an herefore without his consent. your adversary me at whist, and have an advant without his Tersary, by means of a better mem don, or a of the game, the advantage is fair superior knowledge of the If tained by means of which the adv for he is aware when he sits dow hall exert the skill that I possess to I gain an advantage by packing By eye into the adversary's

cert

th

CHAPTER VIII.

CONTRACTS OF HAZARD.

By Contracts of Hazard, I mean gaming and insu

rance.

What say some of this kind of contracts, "that one side ought not to have any advantage over the other," is neither practicable nor true. It is not practicable; for that perfect equality of skill and judgment which this rule requires is seldom to be met with. I might not have it in my power to play 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 than my own. Nor is this equality requisite to the justice of the contract. One party may give to the other the whole of the stake, if he please, and the other party may justly accept it, if it be given him; much more therefore may one give to the other a part of the stake; or, what is exactly the same thing, an advantage in the chance of winning the whole.

The proper restriction is, that neither side have an advantage by means of which the other is not aware; for this is an advantage taken without being given. Although the event be still an uncertainty, your advantage in the chance has a certain value; and so much of the stake as that value amounts to is taken from your adversary without his knowledge, and therefore without his consent. If I sit down to a game at whist, and have an advantage over the adversary, by means of a better memory, closer attention, or a superior knowledge of the rules and chances of the game, the advantage is fair because it is obtained by means of which the adversary is aware; for he is aware when he sits down with me that I shall exert the skill that I possess to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adversary's hands, or by concerted

signals with my partner, it is a dishonest advantage; because it depends upon means which the adversary never suspects that I make use of.

The same distinction holds of all contracts into which chance enters. If I lay a wager at a horse race, founded upon the conjecture I form from the appearance and character and breed of the horses, I am justly entitled to any advantage which my judgment gives me: but, if I carry on a clandestine correspondence with the jockeys, and find out from them, that a trial has been actually made, or that it is settled beforehand which horse shall win the race, all such information is so much fraud, because derived from sources which the other did not suspect, when he proposed or accepted the wager.

In speculations in trade or in the stocks, if I exercise my judgment upon the general aspect and prospect of public affairs, and deal with a person who conducts himself by the same sort of judgment, the contract has all the equality in it which is necessary; but if I have access to secrets of state at home, or private advice of some decisive measure or event abroad, I cannot avail myself of these advantages with justice, because they are excluded by the contract, which proceeded upon the supposition that I had no such advantage.

In insurances, in which the underwriter computes his risk entirely from the account given by the person insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete.

CHAPTER IX.

CONTRACTS OF LENDING OF INCONSUMABLE
PROPERTY.

WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconsumable; in