date

30 Oct 1811 Evidence VI. Preappointed
30 Oct 1811

Evidence

VI. Preappointed

Ch.2.1. Contracts [...?]

if Preappointed

' 4 [...?]

'.4. Modes of noxiousness in the case of Contracts.

When, as above, reprobated, the account in which a contract is, or at least is declared and supposed to be reprobated is that of presumed noxiousness. Pursuing that division /analysis/ which forms the foremost a clearest basis of whatever operations are carried on by the legislator against the mischief apprehended from [..?] or other pernicious acts, By itself[?] a mischievous noxious act of this description as of any /in all/ other descriptions this party or parties affected will be seen to be other assignable individuals, a subordinate class of the community or the aggregate of the whole community or the whole public.

The case where it is to the whole community the case where it is so the case where it is so to determinate are or to a subordinate class or even to assignable individuals not being parties to the contract that it may happen to its tendency to be noxious in a case /all these are cases/ of too great a latitude to come under consideration on this present occassion /be included within the compass of the present head/. To whatever contracts this pernicious quality actually belongs, it belongs to the duty of the legislator to look out for and collect them together - marking them as reprobated, and in eah designating by such a description as shall suffice to prevent their being engaged in by any person, for want of being apprized of the [...?] /fate/ thus prepared for them and the consequences that will ensue.

Such in relation to contracts so circumstanced as above will be the duty of the legislator: but in the performance of that duty in those instances, generally speaking he will not find any particular capacity of yeilding him assistance in the principle of pre-appointed evidence.
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    Description: 30 Oct 1811

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    '.1. The legislators duties in regard to Contracts

    Here then, in relation to Contracts in general /taken in the mass/ we see the two /three/great tasks and duties of the legislator:

    1. The first positive. viz to give their full effect to cause such contracts as are neither noxious nor spurious noxious in themselves, nor spurious in respect of the instrument employed or for the expression of those to mean the full benefit of that [...?] and assistance which he professes to give to contracts.

    2 The second, negative - viz to present noxious and presumably noxious contracts from receiving at the hands of the Judge that [...?] and assistance which it is his endeavour /wish/ to confess to such as are beneficial or at least innoxious.

    3. The third, negative also - viz. to prevent spurious contracts spurious instruments of contract from receiving, as above, that [..?] and assistance which it is his wish to confine to genuine ones.

    In the pursuit of these several important ends whatsoever instruments he is capable of calling in and working with belong, all of them, to the head of pre-appointed evidence.

    Here then as problems in themselves we see two objects 1. How to choose the set of instruments most suitable to these several purposes: 2 How in pursuit of these several purposes to make application /employ/ of each such instrument to the best possible advantage.
  • Title: [23 June 1805 Evidence Introd]
    Description: 23 June 1805

    Evidence

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    ''.3 Contracts

    ''. Non-Notoriety in regard to the law of Contracts

    A particular mischief resulting from non-notoriety attaches upon the law of Contracts: under which, for the present purpose at least, may be understood /comprized/, testaments, and consequences, as well as obligatory arguments and promise.

    A contract is a particular law, to which in so far as the validity of it is admitted, the legislator lends his sanction. a law in regard to which the initiative power resides in the individual, and which the legislator, so far as he allows the validity of it, and thereby lends the force of the judicial power to provide for the execution of it, confirms and makes his own /adopts as if it were his own/.

    Two authors at the least may accordingly be seem contributing to the formulation of each such law: the contracting party or parties, the instant or [...?] author or authors; the legislator the [...?]. (a)

    Contracts taken in the aggregate being necessary [...?] to the well-being (such as buying and selling) [...?] (such as marriage) to the very being of society, are generally perceived and understood to be so: and moreover in every civilized community the enforcement of them, by the hand of law, is matter of universal observation to every body.

    Being the difference between jurisprudential and statutory law (of which in its place) The state of things is therefore in this respect exactly as it would be if in every community a law in these precise words existed and was universally known to exist. Saving particular exceptions whatever contracts are really made, shall be faithfully observed.

    As every thing that is dear to them comes occasionally to depend upon the faithful fulfilment of those obligations which it is the object of these instruments respectively to impose, men are in the habit of trusting in this way any thing that is dear to them to the good faith of the legislator and his subordinate the Judge.

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    (a) This nomenclature has been already applied to the subject; but confined to the single and comparatively narrow case, of this species of contracts, viz: conveyances which are called foundations.
  • Title: [30 Oct 1811 Evidence VI Preappointed]
    Description: 30 Oct 1811

    Evidence

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    '.2. Preappointed evidence - its advantages

    [...?] 1. Be the contract what it may, there are two qualities by either of which it may be prevented from having its full effect. These are - 1. uncertainty, and 2. non-notoriety: uncertainty, in regard to its import: non-notoriety in regard either to its import or to its existence.

    Non-notor In speaking of a contract a insufficient point of notoriety, an implied reference is made to persons: viz. to all such persons so situated /circumstanced/ as that in relation to them unless it be known to them it will fail to be productive of its proper and full effect.

    These persons are 1. in all cases the person or persons by whom in order for the contract to obtain its full effect it is necessary that the sort of act in question be performed /exercised/: an act of the positive or of the negative cast, according to the nature of the case.

    If to the act's being exercised it be necessary that by any other person or persons than he or they by whom it is to be performed /exercised/ be called upon so to exercise it, thence to the first mentioned person or persons will be to be added the persons or persons by whom it is necessary that such call be made.