praesenti' could compel the other, by a suit in the ecclesias- CHAP. XII. tical court, to solemnise it in due form. It has been judicially stated that the English common law never recognised a contract 'per verba de praesenti' as a valid marriage till it had been duly solemnised 1, although it recognised it, under the name of a 'pre-contract of marriage,' a term which covered also promises 'per verba de futuro,' down to the middle of the last century, as giving either of the parties a right to sue for celebration, and as impeding his or her marriage with a stranger to the contract 2. for breach It has been much discussed whether an engagement to The action marry ‘per verba de futuro,' as distinguished from an actual of promise. marriage, whether clandestine' or 'regular,' ought to be enforced by law. It seems to have been the old practice in Latium for the father of a girl to enter into a stipulation with her lover on which he could bring an action 3. According to Roman law the 'sponsalia' entered into by an affianced couple, without any formalities, could be repudiated at will by either party, though if 'arrhae' had been given, the party which broke off the match would lose twice the amount *. It must however be remembered that marriage itself could be dissolved with equal ease. Actions for breach of promise of marriage seem to have first gained a footing in England in the reign of Charles I, when it was held that the promise is a 'good' and not merely a 'spiritual' consideration, and that whether it be made to a man or to a woman 5. Modern continental law admits very sparingly of such an action. It is recognised by the Prussian Landrecht, but expressly denied by the code of Italy". In the silence of the French code, the 1 R. v. Millis, 10 Cl. & Fin., 655. 2 These consequences were removed by 26 Geo. II. c. 33. 3 Gell. iv. 4. 'Alii desponsatae renuntiare conditioni et nubere alii non prohibentur.' Cod. v. I. I. Cf. Dig. xxiii. 1, xxiv. 2, xlv. 1. 134; Cod. Theod. iii. 5; Frag. Vat. 262. Rolle Abr. 22; 2 Bulstr. 48. * Th. ii. tit. I. 88. 75, 82. 7 Art. 53. Ꭱ CHAP. XII. courts have expressed contradictory views upon the subject, but, according to the better opinion, interference with the freedom of matrimonial choice being contrary to public policy, no action will lie unless the plaintiff has sustained a 'préjudice réel,' and the Austrian code contains an express provision to this effect 2. For services. Deposit. iv. The more important contracts for services are: 1. for care-taking; 2. for doing work on materials; 3. for carriage; 4. for professional or domestic services; 5. for agency; 6. for partnership. Service of any kind may be to be rendered either gratuitously or for reward, the responsibility of undertaking to render it being considerably greater in the latter case than in the former. Thus the gratuitous contractor is, in English law, not liable for an omission to perform, and liable only for gross negligence in performing. 1. Gratuitous care-taking of an object, commonly called 'deposit,' is well defined as 'a naked bailment of goods to be kept by the bailee without reward.' Of this contract, 'sequestratio' and the depositum miserabile,' or 'necessarium,' are recognised as species by the civilians 3. The former occurs when an object, the right to which is disputed, is placed in the custody of a third party, pending the decision of the dispute; the latter, when the deposit is made under circumstances, such as fire or shipwreck, which leave the depositor no choice. Care-taking for reward is exercised, for instance, by warehousemen, wharfingers, the 'cloak rooms' of railway companies, livery-stable keepers, and inn-keepers. The very extensive liabilities attaching to the last-mentioned class of depositaries by the English common law have recently been much reduced by Act of Parliament 4. 2. A gratuitous contractor to do work upon materials belonging to the other contractor is usually liable only for 1 i. e. it is held that the remedy, if any, is under art. 1382 of the Code, and 3 Dig. xvi. 3. 1; xxiv. 3. 22; Code Civil, arts. 1947-1963. materials. gross negligence in the doing of it. If the contract be for CHAP. XII. reward, each of the parties is responsible to the other for the Work on exercise of a high degree of care1. English law gives to the person who does the work a 'lien' upon the article upon which he has done it till he has been paid for his trouble 2. A gratuitous agreement to do work upon materials belonging to the contractor, for the benefit of another, would amount to a promise to give an article as yet unfinished. If the work is to be done for reward, as when a builder undertakes to construct a house or a tailor to make a coat, it may be questioned whether the contract is one of sale, or for the performance of services 3. 3. A contract of carriage may relate to conveyance by land Carriage. or by sea, and to goods or to passengers. Carriers of goods, besides their duty to carry, share many of the responsibilities of depositaries, and especially of inn-keepers, in respect of the property confided to them. According to English law, a 'common carrier' is bound to take all goods of the kind which he usually carries, unless his conveyance is full, or the goods be specially dangerous; but may charge different rates to different customers. He is supposed to warrant 'safely and securely to carry,' and so is said to be 'an insurer' against all loss not immediately caused by 'the act of God' or the king's enemies.' He is thus responsible, even though he is robbed, or the goods are accidentally burnt. By recent legislation his right of limiting his liability by public notice 1 This contract is narrower than locatio conductio operis,' which covers not only agreements for working upon materials, but also for doing any definite piece of work, such as navigating a ship from one port to another. 2 Supra, p. 190. 3 Inst. iii. 24. 4; Dig. xix. 2. 22. 2. Cf. Lee v. Griffin, 1 B. & S. 272. See the remarks of Professor Pollock, Contract, p. 381, on Act of God,' which he is unable to define more precisely than as 'an event which, as between the parties, and for the purpose of the matter in hand, cannot be definitely foreseen or controlled;' citing Bailey v. De Crespigny, L. R. 4 Q. B. 185. Vis maior,' says Gaius, 'quam Graeci coû Bíav appellant, non debet conductori damnosa esse, si plus quam tolerabile est laesi fuerint fructus.' Dig. xix. 2. 25. 6. CHAP. XII. has been much curtailed, while, on the other hand, he is no longer to be liable for the loss of very valuable articles, unless the sender has declared their value and paid a higher rate for their carriage accordingly. An ordinary common carrier may still limit his liability by a special contract, but such a contract, if made by a railway or canal company, must not only be signed by the sender, but must also be such as the Courts will hold to be just and reasonable. And a railway is not allowed to charge different rates to different customers 1. Professional ser vice. The carriage of goods by sea is usually regulated by a special contract between the ship-owner and the freighter called a 'charter party,' by which the owner is generally relieved from liability for the act of God and the king's enemies. His liability has also been limited by a recent English statute to the value of £8 per ton2, nor is he responsible for loss by fire, nor for very valuable articles unless declared and paid for specially 3. The payment to be made by the sender of the goods to the owner of the ship is called freight.' Carriers of passengers do not insure their safety, but are usually liable for injuries caused to them by neglect or unskilfulness. The liability of a gratuitous carrier would be similar to that of a gratuitous depositary. 4. Each of the heads of service hitherto considered implies a 'bailment,' or handing over of an object with reference to which some work is to be done. In professional and domestic services no bailment is presupposed, the undertaking being merely for the performance by one party of certain acts for the benefit of the other. Such an undertaking for reward is described in the language of Roman law as 'locatio conductio operarum.' The exercise of certain professions was thought by the Romans to be of too liberal a nature to be capable of leading to a compensation in money recoverable by judicial 1 See 17 and 18 Vict. c. 31, and later Acts. 2 25 and 26 Vict. c. 63. 3 17 and 18 Vict. c. 104. process. Advocates, teachers of law or grammar, philosophers, CHAP. XII. surveyors, and others were accordingly incapable of suing for their fees1. A similar disability attaches to barristers under English law to this day, and attached till a few years since also to physicians. Those who thus give their aid gratuitously are, as a rule, free from liability for the negligent performance of their self-imposed task; but a professional person, employed for reward, is held to guarantee that he is reasonably skilful and competent, and can recover nothing for unskilful work 2. service. The position of a domestic servant still exhibits traces of Domestic the status of slavery out of which it undoubtedly has everywhere been developed 3. A servant is usually entitled to his wages although prevented by sickness from doing his work. The rule of English law that a master is not in general liable for injuries which his servant may sustain in the course of his employment or which arise from the negligence of a fellowservant has led, especially when applied to the working of large undertakings, such as railways, to a good deal of hardship, and has recently been modified 4. 5. We have already had occasion to consider how far the Agency. rights and liabilities of contracting parties may be affected by their contract being made through the intervention of an agent. The rights and liabilities in question were those of the principal contractors, as against one another, or of the agent in those exceptional cases in which, by the force of circumstances, he himself acquires the rights or incurs the liabilities of a principal. The questions which thus arise out of contracting by agency are of a wholly different character 1 'Non crediderunt veteres inter talem personam locationem et conductionem esse, sed magis operam beneficii loco praeberi: et id quod datur ei ad remunerandum dari, et inde honorarium appellari.' Dig. xi. 6. 1 pr. 2 Cf. Swan v. N. Brit. Austral. Co. 31 L. J. Rep. N. S. 437; Grill v. Genl. Iron Screw Colliery Co. L. R. 1 C. P. 612. 3 A contract to serve during one's whole life a particular master is allowed by English law. Wallis v. Day, 2 M. and W. 273, 1 Sm. L. C. 361. 4 Supra, p. 133. 5 Supra, p. 224. |