Front Page Titles (by Subject) CHAPTER II.: OF INSTRUMENTS OF CONTRACT IN GENERAL. - The Works of Jeremy Bentham, vol. 6
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CHAPTER II.: OF INSTRUMENTS OF CONTRACT IN GENERAL. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF INSTRUMENTS OF CONTRACT IN GENERAL.
Uses of preappointed evidence as applied to contracts.
Of the advantages or uses derivable from a due application of the principle of preappointed evidence to the case of contracts, a sort of anticipated and general view has been given already.‡ It remains now to bring them to view one by one.
These uses seem comprehendible under the following heads—the description of the use being in each instance taken, as above, from the description of the mischief, in the prevention of which it consists:—
1. Prevention of non-notoriety and oblivion; viz. with respect to the existence of the contract. A contract can no otherwise be of use, than in as far as the existence of it is known. Were it not for the art of writing, the existence of a contract might, after having been known one day, cease to be known the next.
2. Prevention of uncertainty in respect of the import of it. Writing is little less necessary to this purpose than to the former. Without a determinate set of words allotted to the expression of it, the import can never be other than indeterminate: and it is only by writing that the words can be rendered determinate, and secured as well against total oblivion as against changes.
3. Prevention of spurious contracts, and of spuriousness in contracts. When the whole contract is spurious, it is the product of forgery in the way of fabrication; when spurious in this or that part, through any other cause than unintentional error on the part of the scribe, it is the product of forgery in the way of alteration: and by obliteration, the import may be rendered spurious, even where there are no spurious words.
4. Prevention of unfairly obtained, or in other respects unfair, or say vitious, contracts. Of the different cases in which the epithets unfair or unfairly obtained, may be applied to a contract, mention will be made presently.
5. Prevention of injury to third persons; viz. such injury as might be the result of non-notoriety of the contract with reference to such third persons: for instance, a contract whereby the property of a debtor is disposed of in favour of a non-creditor, to the prejudice of creditors; or of one creditor, to the prejudice of co-creditors. This use may perhaps be considered as belonging to the class of direct uses: a contract of this description being referable to the head of unfair contracts,—unfair, viz. with reference to third persons thus exposed by it to injury.
6. Production of revenue to government.
In this, the last upon the list of purposes, we see an advantage altogether void of all natural connexion with the five preceding ones, and with the general object and use of evidence. But, when the connexion is once formed, it contributes a material assistance to those other original and direct purposes; inasmuch as the advantage derived from the institution in this point of view is carried to account, and serves to be set in the scale against whatever articles are chargeable upon it on the side of disadvantage.*
As to unfairness: various are the ways in which it may happen to a contract to have been unfairly obtained, or to be in other respects unfair or vitious: the mode of the vitiousness being determined or indicated, either by the efficient cause of the contract, or by its effects or tendency.
The following are the cases in which its unfairness or vitiousness results from the nature of its efficient cause:—
1. Undue coercion—whether physical, by bodily force applied, or psychological, by fear of undue suffering (present or future) impressed.
2. Erroneous supposition of obligation; viz. legal, or perhaps, in some cases, even though purely moral. This is in fact a case of undue coercion, though no person, other than the party himself, be instrumental in the application of it.
3. Fraud—positive fraud—on the part of another party to the contract (or of some other person acting, with or without his commission or privity, in his behalf,) operating by false representations, assertive of the eventual existence of some benefit, by which, supposing it to accrue, the contract would in so far have been rendered a fair one.
4. Fraud—negative or passive fraud—operating by silence, or say reticence, a negative act,—by non-disclosure of this or that circumstance of disadvantage, in respect of which disclosure was due.†
5. Erroneous supposition in regard to value; viz. an over-value being, in the mind of the party in question, ascribed to the thing acquired to him by the contract, or an under value to the thing parted with. Though there are many cases in which the rescission of a contract in this respect unfair might not be eligible, there are none in which the prevention of it would not be useful; viz. on the supposition that, supposing the real value known, the contract would not have been entered into.
6. Insanity: including non-age, caducity, and intoxication, in so far as productive of the same effects. It is only in so far as these circumstances are respectively productive of unfairness in one or other of the modes above mentioned, that the contract ought to be considered as rendered unfair by them.
7. Injuriousness to third persons, the public at large included; injuriousness, certain, or more or less probable; provided the amount of such injury, all circumstances considered, be preponderant over the amount of the aggregate benefit to the parties.
8. Subornation: the prospect of a benefit considered as derivable from the contract being employed by one party as an instrument of subornation, for the purpose of engaging another in the commission of some injurious act. In this case, the injurious tendency is considered as being in contemplation: in the last preceding case, it may be in contemplation or not.
It is natural to all contracts to be beneficial to all parties to them. A contract neither ought to be, nor commonly is, intended by the legislator to be legalized, but on one or other of two suppositions,—viz. that, at the time of its being entered into, it is (at least in its apparent tendency and promise) beneficial to all parties, and not injurious to any; or in a greater degree beneficial to one party, at least, than it is injurious to all others put together.
In the cases above brought to view, as cases of unfairness or vitiousness, the supposition is, that, if beneficial to one or more individuals, it is not to him or them beneficial in a degree equal to that in which it is hurtful to some other individual, or other individuals, or the public at large, put together.
In cases 1, 3, 4, and 8, blame on the part of some individual or other, naturally but not necessarily a party to the contract, is ascribed: and it is in the wrongful conduct of such individual that the unfairness of the contract has its source. In the other four cases, no such blame forms any necessary part of the case.
Formalities in use in the case of contracts.
We have seen the evil qualities, which, in the instance of contracts taken in the aggregate, are liable to have place—non-notoriety, uncertainty, spuriousness, unfairness: we have seen the different shapes in which it may happen to unfairness to present itself.
We have seen the expedients which, under the name of formalities, are in use, for the apparent purpose of affording to the parties a protection to a certain extent against these evils; viz. scription, authentication ab intrà, authentication ab extrà, multiplicate scription or transcription, registration, and notification.
Against non-notoriety and uncertainty, scription, of itself, and without any expense of thought bestowed upon the adaptation of it to those ends, affords, in a considerable (though far from a complete) degree, a remedy. Spuriousness, in the character of an evil,—authentication ab intrà, and ab extrà, in the character of remedies,—in these may be seen the objects on which the greatest expense of thought appears to have been bestowed.
Of authentication ab intrà, practice presents five distinguishable modes: 1. Autography or holography;* 2. Onomastic signature; 3. Symbolic signature; 4. Sigillation; 5. Recognition,—viz. oral, or by deportment.
1. In comparison with the three next mentioned to it, autography or holography (whichever be the word employed) presents, as against spuriousness, by far the best security. Men (say the English law books) are distinguished by their handwriting, as by their faces. Whosoever be the penman, his handwriting presents (as long as the paper or other substance, and the colour or other marks imprinted on it, last) a sort of real evidence, a species of circumstantial evidence, of his identity; and, so far, of the genuineness of the script. Spuriousness in toto is the only modification of spuriousness to which the security afforded by any of the three other modes of authenticity applies: against spuriousness pro parte, this alone presents a remedy; except that, in case of falsification by simple erasure, holography taken by itself has but little application, inasmuch as, in case of cancellation or abrasion, hands are not distinguishable.
But in some cases this most effectual mode of authentication is physically, in others deemed prudentially, impracticable: physically, as where, in case of a single contracting party (as in case of a last will,) the party is by want of skill, or by debility, rendered unable to write; and moreover, wherever there are contracting parties more than one—unless the task were divided, each for example writing those clauses and those alone, in and by which himself were bound: prudentially, viz. the vexation (the trouble of writing) being more than the party in question chose to submit to.
2. In the onomastic mode of signature may be seen the succedaneum so naturally resorted to, where—ability, sufficient at least to the writing of the words that enter into the composition of the man’s name, not being wanting—holography has, in any of the ways just mentioned, been rendered impracticable.
3. In the symbolic mode of signature may be seen the succedaneum resorted to, where even the degree of ability necessary to the use of the onomastic mode is deficient.
But in this mode, whatever security is afforded by the two other modes (viz. against spuriousness pro parte as well as in toto by the holographic, against spuriousness in toto by the onomastic) is manifestly wanting: a cross (the usual mark) a cross made by one man not being distinguishable from a cross made by another, the real part of evidence has no place. Recognition, viz. by deportment, is the only way in which this mode of authentication can be said to operate.
4. Sigillation, a succedaneum to (or rather mode of) onomastic signature, was the mode in use in those times of barbarism, when, even among persons of rank, skill adequate to so much as onomastic signature was rare: and so much less attainable for any forbidden purpose was the art of the engraver than the art of the ordinary scribe, that the mode thus substituted was, in the character of a security against spuriousness in toto, but little inferior to the mode to which it was substituted.
At present, and since the art of writing has become comparatively common, sigillation, in the character of a source of real evidence, has gone completely out of use. The coat of arms—that substitute for a name, invented for the use of those who could neither read nor write—might in this way be not altogether without its use. But even this is not employed, except by accident.
Sigillation, at one time an efficient and almost the sole security against fraud, has for this long time past degenerated into an idle and mischievous ceremony;* answering no other purpose than that of recognition, for which the oral mode might and does serve equally well without it.
5. Recognition,—viz. oral, or by deportment.
When the modes (or any of the modes) of authentication already enumerated have been employed, little good, it should seem, could be done by superadding this operation. They all of them suppose and include in themselves an act of recognition.
That, in the instance of an instrument purporting to contain an expression of my will, it should be put out of doubt that my will has been completely and determinately formed, is a result unquestionably to be desired: but when an operation performed by permanent signs has been already performed, and applied to that use, how an operation not performed by other than evanescent signs is capable of affording any additional security, does not seem easily perceptible. In the case of onomastic signature, the act of writing the name serves not only the purpose of recognition by deportment, but that of real evidence—permanent circumstantial evidence; and as to symbolic signature, though, as above, it is scarcely capable of serving the purpose of real evidence, yet either it answers, and of itself, the purpose of recognition (viz. recognition by deportment,) or it means nothing, and answers not any purpose.†
Recognition, if performed by oral discourse, or by two out of the four modes of authentication which have been enumerated (symbolic signature and sigillation,) requires the presence of at least one other person in the character of a percipient witness, to see or hear it, so that eventually, on a judicial inquiry, in the character of a deposing witness, he may narrate it.
Authentication ab extrà,—viz. by attesting witnesses, is therefore the only mode in which the authenticity of an instrument of contract can be proved by direct evidence. Without such additional proof, the fact of the authenticity will have no other basis to rest on than what, as above, is constituted by the circumstantial, the real evidence.
But, since significant onomastic seals have ceased to be in use, it is only in the case of those who are able to write that this real proof of authenticity can have place: and even while significant seals were in use, forgery by fabrication of that species of evidence, though but few were capable of so much as attempting it, might with less danger of detection be executed by any of those few, than any imitation by one person of the handwriting of another.
A person in whose presence a party, while performing in relation to any such instrument an act of recognition (oral or by deportment, as above), is seen or heard to do so, acts thereby, whether so required or not, in relation to such act of recognition, in the character of a percipient witness: and, so long as he is in existence, in a state of sanity, and forthcoming, so long there exists a person by means of whose testimony the intrinsic authentication of the instrument in question is capable of being proved by direct evidence.
By the simple perception thus obtained, an additional security is unquestionably afforded: but, if the process of authentication be moreover performed by such percipient witness, the security receives thereby a manifest increase.
1. Although the signature be but symbolic,—yet, if sufficient measures be employed (as they always might be and ought to be) for securing a mode of intercourse with such attesting witness, for the purpose of his eventual forthcomingness in the character of a deposing witness, it will thereby secure to the parties and their representatives the benefit of his direct evidence (the accidents of expatriation and exprovinciation and insanity apart) during his lifetime.
2. If the signature be onomastic,—in that case, to the benefit of his direct testimony is added that of the circumstantial real evidence afforded by his handwriting; and that neither defeasible by death, nor by any of the accidents just mentioned.*
[‡ ]Chap. I. § 3.
[* ]This last might perhaps without impropriety be struck out of the list of uses; since a tax on contracts, in whatever manner laid on, is either a law-tax—that is, a tax upon justice, which is perhaps the worst of all taxes,—or a tax upon the transfer of property, which is one of the worst, or both together.—Editor.
[† ]As when, for a horse known to be unsound, and no questions asked, the price of a sound one is received.
[* ]In the language of French law, a will written from beginning to end by the testator’s own hand is distinguished by the appellation of testament holographe.—[A similar phraseology is employed in Scotland, where a deed written and signed by the granter is termed “holograph.” Deeds of this kind are “privileged,” and as such are valid without attestation; but if not attested, they do not prove their own dates, against the claim of any one whose interest it is to hold them as executed of a different date from that which they bear.—Ed.]
[* ]In English practice, seriously mischievous. Under the fee-gathering system, judges, ever upon the watch for occasions of committing safe injustice, have extracted out of the absence of this useless ceremony, a pretence for applying the principle of nullification. Some instruments must have a seal—others will serve without it: more complication, more uncertainty: more disappointment and distress on the one part, more arbitary power and predatory opulence on the other.
[† ]It would be in the instance of a last will, if in the instance of any species of contract (and that only in one particular case, viz. that of holography,) that the requisition of an act of recognition, as distinct from scription, whether in the way of holography, or in the way of onomastic signature, would be of use. For, of a last will, as contradistinguished from a contract of every other description, it is a distinctive character, that the dispositions made by it are designed by law to remain to the last moment subject to the power of him by whom they were made. But of an instrument written in form of a will, and written by the testator himself, it may be said, that it appears not as yet whether what has been so written had received his ultimate determination; since, having written it to serve as a subject of consideration, it may have happened to him to have kept it by him in that view for any length of time. Some other act (it may be said)—some other act distinct from the mere act of writing it, is necessary to demonstrate that his mind is fixed.
[* ]What one should scarce have imagined à priori—what would scarcely have been worth mentioning had it not been for the experienced blindness of judges and legislators,—in the case of attestation and registration, a task altogether necessary to perform is that of subjecting to a close scrutiny, and distinguishing from every other fact, the face which is the true and proper subject of the testimony thus green—the fact which, upon the strength of such testimony, may with reason be taken for proved.