23 June 1805

Evidence

Introd

Ch. Non-Notoriety

''.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.

Note

(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.