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Where the Common Law, pretending to
give a Right, gives no other remedy
than one which is not adequate.
This is the case in Contracts for specific
things to be delivered convey’d <add>rendered</add> or services to be done.
For the not doing rendering or doing as the case is
the default of Common Law provides this remedy in guise of compensation: viz:
so much money as 12 indifferent persons
shall judge proper to be given in lieu.
It is plain, that this remedy cannot be
adequate but upon the supposition that
money is a match for any thing; that is,
that money will be to any man a means of presenting to him
either any assignable thing to give render him or
for the rendering of which
service to be rendered him <del>that can
he can have contracted with another, or which comes to the same thing a quantity
of satisfaction equal to the quantity which
that thing or service would have given him.
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Now neither of these facts is always true; the first manifestly
never can be, where two or more than one men
have such a desire for the same thing want of the same thing as between
those two or more is equal, tho’ greater than
that ordinary desire of the rest of mankind for it which makes
its price what is called it’s value.
The 2d often is not, when it is understood of such
a sum of as one man can be supposed to possess
and from one man to an and as it would be deemed proper to take from him
to put into the hands for the benefit of another.
I use this restriction; because if it be true, what
has been the saying of a celebrated Minister, that ‘every
man has his price’, wherein under the notion of
man we included all the services he is capable of
rendering were at the expence of his honour & his
conscience, much more is it, that every thing has
it’s price, supposing upon the supposition of an unlimited
power to augment that price at pleasure assuming for this price an unlimited power of augmentation.
However this be that it is often not true of such a sum as has been we have just
mentioned; as may be made accurately manifest by this an example.
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You have a House, worth a thousand Pound;
which I have agreed with you that I shall have you have agreed to sell me at that price: but
my desire of it is such that I would sooner
than not have it I would give 2000 from particular circumstances from some cause or other
after this meeting with a person who offers you £1500 you agree to let him have it at that
price.
Here then we have a subject viz: the house in
question, able to punish no more than 1000 grains as we may
say of satisfaction to you or to any other person
at large, but 1500 such grains to that third person, or
2000 to me.
The time being come, I demand the performance of
this agreement, which you refuse you refuse to perform—I bring
my Action at Common Law: let us observe the case for a satisfaction for this
injury; the measure of it is of course referred
to a Jury; who cannot give me the house but may give me
itself; but may give me what sum
of money they think proper: let us see how they
will proceed. I can produce no evidence
of any particular
reasons which
should make the house
of more value than
to another: they rest
in my own fancy only.
In the 1st place, something, it is plain, I am
entitled to: you have still your House, I have still
my £1000; yet notwithstanding the supposition yet something it is I am entitled
which we set out with, it is plain that the House
was constitutive to you me of something less than 1000
grains of satisfaction, & to me of something
more: otherwise I would not have rather had the
House than the money, nor you rather the
money than the House. This consideration therefore
abstracted from all others might induce
the jury to give me a small matter, 10£
suppose, since something must be mention’d.
What then would the Jury do, in the 1st place supposing
your transaction with the stranger not to
would they give me the 10£ or the £1000
certainly the 10£ only and thus for 2 reasons for if they would no otherwise give me
the £1000 my real loss then upon my own account of it
which if they were to make it a rule to take, I might fo
r any thing they know, & in all probability should
make to exceed the truth nobody knows to what
amount.
Thus then stands the account when all is over
I lost originally 1000 grains; but having received
the ten from you in consequence of the verdict, that
reduces it to 990.
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Identifier: | JB/070/057/001 "JB/" can not be assigned to a declared number type with value 70.
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of laws in general |
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057 |
equity & common law specific performance |
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jeremy bentham |
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