Another very clear one is found in contracts for the sale or lease of a thing, and the like.Here the qualities or characteristics which the owner promises that the thing furnished shall possess, go to describe the thing which the buyer promises to accept.If any of the promised traits are wanting in the thing tendered, the buyer may refuse to accept, not merely on the ground that he has not been offered the equivalent for keeping his promise, but also on the ground that he never promised to accept what is offered him. It has been seen that, where the contract contains a statement touching the condition of the thing at an earlier time than the moment for its acceptance, the past condition may not always be held to enter into the description of the thing to be accepted.But no such escape is possible here.Nevertheless there are limits to the right of refusal even in the present class of cases.If the thing promised is specific, the preponderance of that part of the description which identifies the object by reference to the senses is sometimes strikingly illustrated.One case has gone so far as to hold that performance of an executory contract to purchase a specific thing cannot be refused because it fails to come up to the warranted quality. Another principle of dependency to be drawn from the form of the contract itself is, that performance of the promise on one side may be manifestly intended to furnish the means for performing the promise on the other.If a tenant should promise to make repairs, and the landlord should promise to furnish him wood for the purpose, it is believed that at the present day, whatever may have been the old decisions, the tenant's duty to repair would be dependent upon the landlord's furnishing the material when required. Another case of a somewhat exceptional kind is where a party to a bilateral contract agrees to do certain things and to give security for his performance.Here it is manifest good-sense to hold giving the security a condition of performance on the other side, if it be possible.For the requirement of security shows that the party requiring it was not content to rely on the simple promise of the other side, which he would be compelled to do if he had to perform before the security was given, and thus the very object of requiring it would be defeated. This last case suggests what is very forcibly impressed on any one who studies the cases,--that, after all, the most of decision is not any technical, or even any general principle of contracts, but a consideration of the nature of the particular transaction as a practical matter.A promises B to do a day's work for two dollars, and B promises A to pay two dollars for a day's work.
There the two promises cannot be performed at the same time.The work will take all day, the payment half a minute.How are you to decide which is to be done first, that is to say, which promise is dependent upon performance on the other side? It is only by reference to the habits of the community and to convenience.It is not enough to say that on the principle of equivalency a man is not presumed to intend to pay for a thing until he has it.The work is payment for the money, as much as the money for the work, and one must be paid in advance.The question is, why, if one man is not presumed to intend to pay money until he has money's worth, the other is presumed to intend to give money's worth before he has money.An answer cannot be obtained from any general theory.The fact that employers, as a class, can be trusted for wages more safely than the employed for their labor, that the employers have had the power and have been the law-makers, or other considerations, it matters not what, have determined that the work is to be done first.But the grounds of decision are purely practical, and can never be elicited from grammar or from logic.
A reference to practical considerations will be found to run all through the subject.Take another instance.The plaintiff declared on a mutual agreement between himself and the defendant that he would sell, and the defendant would buy, certain Donskoy wool, to be shipped by the plaintiff at Odessa, and delivered in England.Among the stipulations of the contract was one, that the names of the vessels should be declared as soon as the wools were shipped.The defence was, that the wool was bought, with the knowledge of both parties, for the purpose of reselling it in the course of the defendant's business; that it was an article of fluctuating value, and not salable until the names of the vessels in which it was shipped should have been declared according to the contract, but that the plaintiff did not declare the names of the vessels as agreed.The decision of the court was given by one of the greatest technical lawyers that ever lived, Baron Parke;yet he did not dream of giving any technical or merely logical reason for the decision, but, after stating in the above words the facts which were deemed material to the question
whether declaring the names of the vessels was a condition to the duty to accept, stated the ground of decision thus: "Looking at the nature of the contract, and the great importance of it to the object with which the contract was entered into with the knowledge of both parties, we think it was a condition precedent."
