100 CONTRACTS OF HAZARD. the merchant to me; whether upon delivery of the wine at the merchant's warehoufe; upon its being put on fhipboard at Oporto; upon the arrival of the fhip in England, at its deftined port; or not till the wine be committed to my fervants, or depofited in my cellar; are all queftions, which admit of no decifion, but what cuffom points out. Whence, in juftice, as well as law, what is called the custom of merchants, regulates the conftruction of mercanțile concerns. СНАР. VIII. B CONTRACTS OF HAZARD. Y Contracts of Hazard, I mean gaming and infurance. What fome fay of this kind of contracts," that one fide 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 feldom to be met with. I might not have it in my power to play with fairnefs a game at cards, billiards, or tennis; lay a wager at a horfe race; or underwrite a policy of infurance, once in a twelvemonth; if I must wait till I meet with a perfon, whose art, fkill, and judgment, in these matters, is neither greater nor less than my own. Nor is this equality requifite to the juftice of the contract. One party may give to the other the whole of the ftake, if he pleafe, and the other party may juftly accept it, if it be given him; much much more therefore may one give to the other a part of the ftake; or, what is exactly the fame thing, an advantage in the chance of winning the whole. KI The proper reftriction is, that neither fide 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 ftill an uncertainty, your advantage in the chance has a certain value; and fo much of the ftake, as that value amounts to is taken from your adverfary without his knowledge, and therefore without his confent. fit down to a game at whift, and have an advantage over the adverfary, by means of a better memory, clofer attention, or a fuperior knowledge of the rules and chances of the game, the advantage is fair; because it is obtained by means of which the adverfary is aware; for he is aware, when he fits down with me, that I fhall exert the fkill that I poffefs to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adverfaries hands, or by concerted fignals with my partner, it is a difhoneft advantage; because it depends upon means, which the adverfary never fufpects that I make use of. The fame diftinction holds of all contracts, into which chance enters. If I lay a wager at a horfe race, founded upon the conjecture I form from the appearance, and character, and breed of the horse. I am juftly entitled to any advantage which my judgment gives me; but, if I carry on a clandeftine correfpondence with the jockies, and find out from them, that a trial has been actually made, or that it is fettled before-hand which horfe fhall win the race; all fuch information is fo much fraud, becaufe derived from fources, which the other did not fufpect, when he propofed or accepted the wager. In In fpeculations in trade, or in the ftocks, if I exercise my judgment upon the general aspect and pofture of public affairs, and deal with a perfon who conducts himself by the fame fort of judgment; the contract has all the equality in it which is neceffary: but, if I have access to fecrets of state at home, or private advice of fome decifive measure or event abroad, I cannot avail myself of these advantages with juftice, because they are excluded by the contract, which proceeds upon the fuppofition, that I had no fuch advantage. In infurances, in which the underwriter computes his rifk entirely from the account given by the perfon infured, it is abfolutely neceffary to the juftice and validity of the contract, that this account be exact and complete. С НА Р. CHA P. IX. CONTRACTS OF LENDING OF INCONSUMA B LE PROPERTY. WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconfumable, in oppofition to corn, wine, money, and those things which perifh, or are parted with in the ufe, and can therefore only be reftored in kind. The queftions under this head are few and fimple. The firft is, if the thing lent be loft or damaged, who ought to bear the lofs or damage? If it be damaged by the ufe, or by accident in the ufe for which it was lent, the lender ought to bear it; as if I hire a job-coach, the wear, tear, and foiling of the coach, muft belong to the lender; or a horfe to go a particular journey, and in going the propofed journey, the horse die, or be lamed, the lofs muft be the lender's: on the contrary, if the damage be occafioned by the fault of the borrower, or by accident in fome ufe for which it was not lent, then the borrower muft make it good; as if the coach be overturned or broken to pieces by the careleffnefs of your coachman ; or the horse be hired to take a morning's ride upon, and you go a hunting with him, or leap him over hedges, or put him into your cart, or carriage, and he be ftrained, or ftaked, or galled, or accidentally hurt, or drop down dead, whilft you are thus ufing him; you must make fatisfaction to the owner. The two cafes are diftinguished by this circumftanee, that in one cafe, the owner forefees the da mage mage or rifk, and therefore confents to undertake it; in the other cafe, he does not. It is poffible that an eftate or a house may, during the term of a leafe, be fo increased or diminished in its value, as to become worth much more, or much lefs, than the rent agreed to be paid for it. In fome of which cases, it may be doubted, to whom, of natural right, the advantage or difadvantage belongs. The rule of juftice feems to be this: if the alteration might be expected by the parties, the hirer muft take the confequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yield nothing, or next to nothing, yet the tenant fhall pay his rent; and if the next year produce ten-fold the ufual profit, no more fhall be demanded; because the produce is in its nature precarious, and this variation might be expected. If an estate in the Fens of Lincolnshire, or the ifle of Ely, be overflowed with water, fo as to be incapable of occupa tion, the tenant, notwithstanding, is bound by his leafe; because he entered into it with a knowledge and forefight of this danger. On the other hand, if by the irruption of the fea into a country where it was never known to have come before, by the change of the courfe of a river, the fall of a rock, the breaking out of a volcano, the bursting of a mound, the incurfions of an enemy, or by a mortal contagion amongst the cattle; if by means like these, an eftate change, or lofe its value, the lofs fhall fall upon the owner; that is, the tenant fhall either be discharged from his agreement, or be entitled to an abatement of rent, A houfe in London, by the building of a bridge, the opening of a new road or ftreet, may become of ten times its former value; and by contrary caufes, may be as much reduced in value: here alfo, as before, the owner, not the hirer, fhall be affected by the alteration. The reafon upon which our determination proceeds is this, that changes fuch as thefe, being neither forefeen, nor provided for by the contracting parties, |