But the law does not inquire, as a general thing, how far the accomplishment of an assurance touching the future is within the power of the promisor.In the moral world it may be that the obligation of a promise is confined to what lies within reach of the will of the promisor (except so far as the limit is unknown on one side, and misrepresented on the other).But unless some consideration of public policy intervenes, I take it that a man may bind himself at law that any future event shall happen.He can therefore promise it in a legal sense.It may be said that when a man covenants that it shall rain to-morrow, or that Ashall paint a picture, he only says, in a short form, I will pay if it does not rain, or if A does not paint a picture.But that is not necessarily so.A promise could easily be framed which would be broken by the happening of fair weather, or by A not painting.A promise, then, is simply an accepted assurance that a certain event or state of things shall come to pass.
But if this be true, it has more important bearings than simply to enlarge the definition of the word promise.It concerns the theory of contract.The consequences of a binding promise at common law are not affected by the degree of power which the promisor possesses over the promised event.If the promised event does not come to pass, the plaintiff's property is sold to satisfy the damages, within certain limits, which the promisee has suffered by the failure.The consequences are the same in kind whether the promise is that it shall rain, or that another man shall paint a picture, or that the promisor will deliver a bale of cotton.
If the legal consequence is the same in all cases, it seems proper that all contracts should be considered from the same legal point of view.In the case of a binding promise that it shall rain to-morrow, the immediate legal effect of what the promisor does is, that he takes the risk of the event, within certain defined limits, as between himself and the promisee.He does no more when he promises to deliver a bale of cotton.
If it be proper to state the common-law meaning of promise and contract in this way, it has the advantage of freeing the subject from the superfluous theory that contract is a qualified subjection of one will to another, a kind of limited slavery.It might be so regarded if the law compelled men to perform their contracts, or if it allowed promisees to exercise such compulsion.If, when a man promised to labor for another, the law made him do it, his relation to his promisee might be called a servitude ad hoc with some truth.But that is what the law never does.It never interferes until a promise has been broken, and therefore cannot possibly be performed according to its tenor.It is true that in some instances equity does what is called compelling specific performance.But, in the first place, I am speaking of the common law, and, in the next, this only means that equity compels the performance of certain elements of the total promise which are still capable of performance.For instance, take a promise to convey land within a certain time, a court of equity is not in the habit of interfering until the time has gone by, so that the promise cannot be performed as made.But if the conveyance is more important than the time, and the promisee prefers to have it late rather than never, the law may compel the performance of that.Not literally compel even in that case, however, but put the promisor in prison unless he will convey.This remedy is an exceptional one.The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses.
A more practical advantage in looking at a contract as the taking of a risk is to be found in the light which it throws upon the measure of damages.If a breach of contract were regarded in the same light as a tort, it would seem that if, in the course of performance of the contract the promisor should be notified of any particular consequence which would result from its not being performed, he should be held liable for that consequence in the event of non-performance.Such a suggestion has been made. But it has not been accepted as the law.On the contrary, according to the opinion of a very able judge, which seems to be generally followed, notice, even at the time of making the contract, of special circumstances out of which special damages would arise in case of breach, is not sufficient unless the assumption of that risk is to be taken as having fairly entered into the contract. If a carrier should undertake to carry the machinery of a saw-mill from Liverpool to Vancouver's Island, and should fail to do so, he probably would not be held liable for the rate of hire of such machinery during the necessary delay, although he might know that it could not be replaced without sending to England, unless he was fairly understood to accept "the contract with the special condition attached to it."
