The \u27Right\u27 to Break a Contract

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is given by Justice Holmes in his admirable address, THE PATH OF THE LAW (10 HARV. L. REV. at p. 462). The passage is sufficiently picturesque to deserve quotation: Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him

Full Faith and Credit and Jurisdiction

The judgment of a sister state, when assailed by collateral attack, is often said to occupy a position intermediate between foreign and domestic judgments. Though the older American cases were inclined to examine into the merits of any foreign judgment, the present tendency is toward the adoption of the English view according to which a foreign judgment may be attacked collaterally only for want of jurisdiction or fraud. Dicey, Conflict of Laws (ed. 2) Ch. XVII; see note to Tremblay v. Aetna Life Insurance Co., 97 Me. 547, in 94 Am. St. Rep. 521, 538. But whereas any statement of jurisdictional facts in a foreign judgment is presumptive only, a domestic judgment is free from collateral attack on the ground of jurisdiction, except where lack of jurisdiction appears upon the face of the record. I BLACK, JUDGMENTS (ed. 2), § 274. The courts of New York have declined to accord this favoured position to domestic judgments and apparently make no distinction between domestic judgments and those of a sister state in this matter. Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589. In view of the so-called \u27full faith and credit clause\u27 of the constitution (Art. IV, §1), it is difficult to see why the judgment of a sister state should be open to any form of collateral attack to which it is not open in the state where the judgment is rendered. This would seem to follow from the familiar statement of Chief Justice Marshall in Hampton v. McConnel, 3 Wheat. 234 (affirming the doctrine of Mills v. Duryee, 7 Cranch 481), which in the opinion of Justice Holmes is still a correct exposition of the law. Fauntleroy v. Lum, 210 U. S. 230, 236-7

Extraterritorial Effect of the Equitable Decree

ANYONE whom the study of equity has led into the by-paths of V Canon Law will recall that the Sext ends with a splendid array of imposing maxims, not improbably the source of the Latin maxims with which every lawyer is familiar. The inveterate habit formed by the ecclesiastics of expressing a legal principle in a short and crisp formula persisted when they came into the courts of law and is peculiarly in evidence among the chancellors of the fifteenth century. What may at first have been merely casual became through repetition a habit and the result has been to fasten upon equity a group of maxims which, though they have long outlived the usefulness of their short day, persist vigorously in textbooks and decisions. The difficulty with the maxim is not only that it expresses a result rather than a reason; almost without exception the maxims took shape in an environment utterly different from that of today. While equity has advanced the maxim tends to remain stationary; hence any exposition of equity through maxims involves the danger of obscuring its true development through envisaging modern equity under the limitations of its medimval beginnings. Of all the maxims, none has a more interesting history, none speaks more eloquently of the vortex of jealousy, antagonism and rivalry in which chancery first formulated its doctrines, than \u27Equity acts in personom.\u2

The \u27Right\u27 to Break a Contract

It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is given by Justice Holmes in his admirable address, THE PATH OF THE LAW (10 HARV. L. REV. at p. 462). The passage is sufficiently picturesque to deserve quotation: Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him

Re-writing the Statute of Frauds: Part Performance in Equity

One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as part performance became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will explain all the intricacies of part performance. Mr. Pomeroy sought to support the doctrine upon the all-embracing principle of fraud (Pomeroy, CONTRACTS (ed. 2) §§ 103, 104), but unless it be fraud to fail to carry out a promise deliberately made when another has acted upon it, this explanation fails

Some Aspects of Fifteenth Century Chancery

IT is now more than thirty years since Justice Holmes in a brilliant and daring essay set on foot an inquiry which has revealed the remote beginnings of English equity. Equity and common law originated in one and the same procedure and existed for a long time, not only side by side, but quite undifferentiated from each other. Their origin is to be found in the system of royal justice which the genius of Henry II converted into the common law; but this royal justice was in the beginning as much outside of, or even antagonistic to, the ordinary judicial system of the Anglo-Norman state as was ever the later equity of the Chancellor. There was no equity as a separate body of law; for the king\u27s justices felt themselves able to dispense such equity as justice require. In fact to speak of law and equity is to import into the twelfth and thirteenth centuries a modem distinction which is absent. Just as Bracton was inclined to see in the King\u27s Bench and Council but one court, so he regarded equity as an active, mitigating principle working in and through the administration of royal justice. The manner in which equity in this sense disappeared from the common law is become common knowledge. The jealousy of parliament, which may be but the reflection of the attitude of the community at large, the realization that the power to make new writs is a power to make new law, forced the writs into a closed cycle, and put an end to the free development of the common law. Without doubt the judges, who seem to become more conservative as ecclesiastics sit more rarely on the bench, furthered this restrictive movement. At all events the law became so rigid and inflexible, its practitioners were so absorbed in nice questions of form and pleading, that there was no longer room for equity. This has become the situation early in the fourteenth century; as a result a new field for the royal prerogative is found and equity is administered in the council from which in the next century the Court of Chancery breaks off

Book Reviews

This volume was prepared under the supervision of Colonel J. H. Wigmore. It was designed especially for the use of the Students\u27 Army Training Corps, and was available for that purpose just about the time those Corps were disbanded. The volume, however, is a very valuable source-collection for the use of anyone interested in Military and War-time Law,-the two parts into which the volume is divided. The first part includes legislative enactments, with extracts from the English Mutiny Act of 1688, from the United States Constitution, all of the Articles of War, and numerous extracts from the Revised Statutes of 1878, from the Criminal Code of xg0* and many others. Also most of the leading American cases on the State and Federal military powers, martial law, executive powers, special civil rights \u27and liabilities of military persons, effect of war on civil rights and liabilities, and on the army orianfzation. Part II, War-time sources, includes the important legislative enactments of 1916-1918; regulations and general orders, some seventeen cases, including the conscription case- (Arver v. U. S., 245 U. S. 366) and many arising under the Selective Service and Espionage acts; some sixty opinions of the Judge Advocate General in 1917-198 on miscellaneous topics, andotwenty-four more on court martial and disciplinary treatment

Book Reviews

Judge Story\u27s work appeared at a critical period in Aterican legal history. The bitterness toward England which lingered after the Revolution, intensified by the unhappy war of 182, was no doubt responsible for the hostility toward and suspicion of that peculiarly English institution, the common law.\u27 Evidence is not wanting that our courts were drifting away from the common law doctrines and becoming more -responsive to the appeals of civil law. There was thus furnished a condition favorable to the reception of Roman law through some French form such as the Code Napolion. English equity, in particular, stood in a precarious position. Not alone did it suffer like the common law (in a narrow sense) from suspicion of Britain, but it encountered the prejudices of the Puritan and the Quaker. That compulsion of the person which has been its most striking characteristic, suited ill those who asserted the unfettered freedom of the individual will, while William Penn\u27s collision with the court of chancery (Penn v. Lord Baltimore, z Ves. Sr. 444) accentuated the opposition of his followers. In view of these antagonistic influences it is not a little surprising that American courts should have adopted the fundamental principles of English equity. That they did so is due in large measure to the influence of Story\u27s Commentaries on Equity Jurisprudence* which first appeared in x836. Story catered to the popular enthusiasm for Roman law by copious references to the civilians; yet in fundamentals, equity as he pictured it, is English equity as it took shape in the court of chancery under Lord Eldon. Today one may think that Story overemphasized the influence of Roman law; one may feel that his treatment is too scholastic and therefore unsuited to present conditions. But whatever view one may take of the intrinsic value of Story\u27s work, one cannot forget the tremendous influence which it exercised m America. This influence is now become largely indirect; it is exerted through the older cases, which relied upon Story, rather than through the treatise itself. But as equity has not remained static, his exposition, however valuable for the lawyers and courts of the early nineteenth century, requires complete recasting if it is truly to represent the equity of today

Note and Comment

The Right to Break a Contract - It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MIcr. L. Rv. 48o appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is given by Justice Holmes in his admirable address, TH4 PATH O* THE LAW (O HARV. L. Rzv. at p. 462). The passage is sufficiently picturesque to deserve quotation: Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him

Book Reviews

Science and Learning in France. With a Survey of Opportunities for American Students in French Universities. An Appreciation by American Scholars. The Society for American Fellowships in France, 1917; PP. xxxviii, 454