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civil one, and could be used in defense of actions ope exceptionis, but not in support of them. Azo and Bracton both make much use of the conceit of "clothed" and "naked" pacts, to show in what cases a pact became a contract, though consideration was not among the forms of "clothing," and indeed was entirely unknown in their time. The only sense in which the maxim can properly be used of a mere promise in our law is that the lack of consideration prevents it from being a contract in any legal sense of the word, Roman or English. Unfortunately, the promise taken by itself is hardly more of a pact than it is of a contract.

Of the few substantial additions made to Glanvil in the text of the Scotch-English treatise known as Regiam majestatem, none deserves notice more than the four chapters de Pacto added to the first book. (Ch. 28-31.) Pact is here defined as consensus duorum vel plurium in eandem rem, sc. dandam vel recipiendam, and distinguished from a promise, pollicitatio, “ane hecht of anc person alanerlie," in Scotch. The classic distinction of pacta in rem, in personam is fully treated, but nuda pacta are not even mentioned.

There can be little doubt that this book was prepared for Scotch use at a time when the law of that country was much the same with the South-English, and when the ruling powers desired to make it even more so. Hence its doctrine deserves more attention in the study of English law than it has received.

Bracton refers more than once to the maxim as applicable to gifts as well as pacts, thus showing how little it had to do with consideration in our present sense. Nuda enim donatio et nuda pactio non obligant aliquem nec faciunt aliquem debitorem (ii. c. 4,2 12, fol. 15 b), where he illustrates it by a gift without delivery, and without a real intent to give. At the end of the section, fol. 16 b, he quotes a metrical couplet, enumerating the modes in which vestes sumere pacta

solent, pacts become clothed and thus actionable. Cf. Azo, Summa in Cod. de pactis, ii. tit. 3, par. 15, ed. 1596, p. 84, who gives a curious verbal picture of the naked new-born pact anxiously looking about for some contract with the plumage or raiment of which it may clothe itself, ut boream, rabiemque procellæ expellat, et suum suo domino in agendo præbeat.

The maxim is quoted by Plowden, both in the form given here by Blackstone, and also in a fuller form expressing more accurately the true meaning: Nudum pactum est ubi nulla causa subest præter conventionem. Sed ubi subest causa fit obligatio et parit actionem. But this is only in a note of a reporter expressly giving it as a definition from the civil law. (Fol. 309.) But in folios 305 and 308 the notion of consideration is joined with it in a manner to show the true meaning of the latter term. It is the "deliberation," "determination of the mind," shown in the making of a deed, that proves the consideration of the making (p. 308); the advancement of promissor's daughter that makes a consideration proceeding from nature for what otherwise would be a nude pact. (p. 305.) (Note, however, that the court [p. 309] expressly repudiate this last-mentioned argument.) Viner, Contract K. 1, cites the maxim from Brooke, Contract, 5, and 3 Hen. VI. 36. See, also, xii. 117, xvi. 177, and especially vol. 16 Nudum Pactum, where all the passages are collected.

(85) In fairs or in market overt, page 449.

Both these institutions are unknown in this country, and the rule which at common law makes sales in market-overt "binding on all who have any right or property therein," has never been recognized as part of our law. The student, therefore, must be careful not to regard the exceptions and qualifications of this rule in this and the next paragraph, as applicable to the law of sales in general.

(86) If money or goods be delivered to a common carrier, page 451.

Blackstone does not distinguish here between the liability of a common carrier, which by an ancient rule of the common law is much greater than that of an ordinary bailee for carriage, and the latter; nor does he between that of an inn-keeper, and that of one who takes boarders and their chattels into his house. So, also, on the next page his only example of a pledge is in the case of a public pawnbroker; which is always strictly regulated by statute to a much greater degree than that of an ordinary pledgee.

One who, not being a common carrier, undertakes to carry the goods of another from place to place for a reward, is a bailee, and liable for negligence only to the same extent as other paid bailees. (Gordon v. Hutchinson, 1 Wils. & S. 285; Sheldon v. Robinson, 7 N. H. 157; Pennewill v. Cullen, 5 Har. [N. J.] 238; Roberts v. Turner, 12 Johns. 232; Hutchings v. Ladd, 16 Mich. 493; Allen v. Sackrider, 37 N. Y. 341; Hooper v. Wells, 27 Cal. 11.) But the liability of a common carrier is very different. There are not a few dicta to the con'trary, especially in the older states, nearly all of which will be found collected in O'Hear v. De Goesbriand, 33 Vt. 593; 80 Am. Dec. 653; or in the editor's note in the last-named volume. But these are usually based on the repetition of the common-law phraseology without reference to principles, except where the case depends on some statute peculiar to a state, or is consistent with either view of the property in question.

(87) By gross neglect, which is an evidence of fraud, page 452.

Blackstone has here stated, with his usual precision, the relation of two terms which have been at one time carelessly confounded, and at others denied all connection. The effect of both errors alike has been to

throw doubt on the law of bailments, and especially of deposit.

By the Roman law, the depositary was liable only for fraud, dolus, and not for negligence, culpa. But culpa might be so gross as to have the effect of dolus. Lata culpa plano dolo comparabitur. (Dig. ii. 6, 1.) Magna negligentia culpa est, magna culpa dolus est. (Paulus, in Dig. xvi. 2, 26.) Hence Lord Holt and Sir William Jones (Law of Bailments, p. 21) copied a doctrine by which both fraud and negligence were long confused. (Foster v. Essex Bank, 17 Mass. 479; 9 Am. Dec. 368. See 2 Kent, 560, n. d; 2 Parsons on Contracts, 88, n. c; Fay v. New World, 1 Cal. 349.) Between wilful mischief and gross negligence the boundary line is hard to trace: I should rather say impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice. (Per Ld. Denman in Lynch v. Nurdin, 1 Ad. & E. N. S. 29, 38, 1841.)

Yet the same learned judge had said: Gross negligence may be evidence of mala fides; but it is not the same thing. We have shaken off the last remnant of the contrary doctrine. (Goodman v. Harvey, 4 Ad. & E. 876.) So, also, it is said by Swayne, J., in Nat. Bank v. Graham, 100 U. S. 699, 702, that "gross negligence on the part of a gratuitous bailee, though not a fraud, is in legal effect the same thing," citing, Foster v. Essex Bank, 17 Mass. 479. But the only use made of the dictum is to show that "it is a tort, and an action in the case is the appropriate remedy for such a wrong," which is true independent of the dictum. The error lies in overlooking the distinction between evidential and ultimate facts pointed out by Blackstone in the text. Gross negligence may be evidence of fraud, malice, etc., but not the same thing. The essential distinction between them is well pointed out in Gardner v. Heartt, 3 Denio, 232, 236.

(88) The hirer, or borrower, gains a temporary property, page 453.

In this passage, as in others relating to bailment, Blackstone does not notice a distinction now clearly established between bailees who have a right of detention against the bailors, and those who have not. Bailments purely gratuitous, as it is now agreed, the bailor may terminate at his pleasure, and reclaim the goods. The lender for a month can retake the property next day if he chooses, for his gratuitous lending involves no contract binding on him, although it is a consideration for the inferred promise of the borrower to return the chattel at the time fixed. Hiring, on the other hand, is a contract which binds both parties to observe its terms.

The source of Blackstone's error (for such we must call it), is not far to seek. After the fashion of his time he was stating the law of the Roman commodatum as equivalent to our English loan. The commodatum was equally binding on lender and on borrower in all its terms, for it was made so by the delivery of the thing (Inst. iii. 14, § 2) without reference to the operation of that delivery as consideration of an inferred promise.

Students of the civil law will see that the precarium of that law answers to our loan for use much more truly than the commodatum, though the latter word has become so identified with it by two centuries of use, that it might be more difficult to substitute the correct term for it than to get rid entirely of this misleading nomenclature.

The other bailments which do not give the bailee a vested right of detention, or a right to insist on the terms of the bailment as a contract binding the bailor, are the equally gratuitous ones of deposit and mandate.

These (with loan) are sometimes called simple bailments, to distinguish them from such as necessarily imply a contract binding on both parties and a right of detention by bailee against bailor: such as pignus or

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