B.   The Law of Contracts

The Biblical commands concerning man's vows or oaths to God are not limited o man's relationship to God. Rather, those commands constitute the foundation for a far more extensive legal principle governing man's relationships with his fellow man. In Deuteronomy chapter 23 immediately following the verses that are addressed to the Law governing man's vows to God is the law governing man's vows to his fellow man:

"You shall be careful to perform what goes out from your lips, just as you have voluntarily vowed to the Lord Your God, what you have promised." Deut. 23:23 (NAS).

This law of promise has undergirded the several examples of mutual agreements that were entered into by men in the Book of Genesis. Abraham and Abimilech exchanged promises to resolve a dispute over the use of a water well. At the heart of this agreement is Abimilech's request that Abraham "swear by God. . . not to deal falsely" with him and Abraham's so swearing. Both then sealed their agreement with an oath. Gen. 21:22-32. This pattern was repeated by Isaac and Abimilech over the very same wells after the death of Abraham. Gen. 26:26-31.

Abraham extracted an oath from his servant before sending him off to fetch a bride for Isaac from the household of his relatives. Genesis 24:1-9. At the foundation of Esau's sale of his birthright to Jacob was his oath to do so before Jacob fed Esau. Genesis 25:29-34. Rahab and the spies exchanged promises before she acted to hide them from the Jericho King's men. Joshua 2:8-17. Believers and unbelievers, alike, relied upon the law of God that obligated a man to perform his promises to his fellow man.

At the heart of God's law governing promises is God's faithfulness to perform his promises. Because man is created in the image of God, God expects man to be no less faithful. Yet because of sin man is unable to meet that high standard as Numbers 23:19 records:

"God is not a man. that he should lie; Neither the son of man, that he should repent: Hath he said, and shall he not do it? Or hath he spoken, and shall he not make it good?"

The common law of contracts reflects these Biblical principles. In his Commentaries Blackstone wrote that man was held responsible for any damages resulting from violating his promises if they constituted a legally-recognized contract:

"A contract. . .is thus defined: 'An agreement, upon sufficient consideration to do or not to do a Particular thing . . .

This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are only uttered and avowed at the time of the making, as to an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labor deserves. . . .In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts of one kind or other. . .." II W. Blackstone, Commentaries, 442-443 (1769).

The Biblical principles of contract are few but they are essential: The sanctity of promise, the right to contract, the necessity of an agreement and of consideration. While Blackstone did not make explicit the origin of the common law of contract, his American admirer and disciple John Marshall did. As Chief Justice of the United States from 1801 to 1835, Marshall exercised great influence in the development of a common law jurisprudence for the new nation. His view on origin of contract law was explicitly stated in dissenting opinion in the following case:

OGDEN v. SAUNDERS
25 U.S. (12 Wheat.) 213, 344-47 (1827)

Contract, it is said, being the creature of society, derives its obligation from the law; and, although the law may not enter into the agreement so as to form a constituent part of it, still it acts externally upon the contract, and determines how far the principle of coercion shall be applied to it; and this being universally understood, no individual can complain justly of its application to himself, in a case where it was known when the contract was formed.

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The defendants maintain that an error lies at the very foundation of this argument. It assumes that contract is the mere creature of society, and derives all its obligation from human legislation. That it is not the stipulation an individual makes which binds him, but some declaration of the supreme power of a State to which he belongs, that he shall perform what he has undertaken to perform. That though this original declaration may be lost in remote antiquity, it must be presumed as the origin of the obligation of contracts. This postulate the defendants deny, and, we think, with great reason.

It is an argument of no inconsiderable weight against it, that we find no trace of such an enactment. So far back as human research carries us, we find the judicial power as a part of the executive, administering justice by the application of remedies to violated rights, or broken contracts. We find that power applying these remedies on the idea of a pre-existing obligation on every man to do what he has promised on consideration to do; that the breach of this obligation is an injury for which the injured party has a just claim to compensation, and that society ought to afford him a remedy for that injury. We find allusions to the mode of acquiring property, but we find no allusion, from the earliest time, to any supposed act of the governing power giving obligation to contracts. On the contrary, the proceedings respecting them of which we know any thing, evince the idea of a pre-existing intrinsic obligation which human law enforces. If, on tracing the right to contract, and the obligations created by contract, to their source, we find them to exist anterior to, and independent of society, we may reasonably conclude that those original and pre-existing principles are, like many other natural rights, brought with man into society; and, although they may be controlled, are not given by human legislation.

In the rudest state of nature a man governs himself, and labours for his own purposes. That which he acquires is his own, at least while in his possession, and he may transfer it to another. This transfer passes his right to that other. Hence the right to barter. One man may have acquired more skins than are necessary for his protection from the cold; another more food than is necessary for his immediate use. They agree each to supply the wants of the other from his surplus. Is this contract without obligation? If one of them, having received and eaten the food he needed, refuses to deliver the skin, may not the other rightfully compel him to deliver it? Or two persons agree to unite their strength and skill to hunt together for their mutual advantage, engaging to divide the animal they shall master. Can one of them rightfully take the whole? or, should he attempt it, may not the other force him to a division? If the answer to these questions must affirm the duty of keeping faith between these parties, and the right to enforce it if violated, the answer admits the obligation of contracts, because, upon that obligation depends the right to enforce them. Superior strength may give the power, but cannot give the right. The rightfulness of coercion must depend on the pre-existing obligation to do that for which compulsion is used. It is no objection to the principle, that the injured party may be the weakest. In society, the wrong-doer may be too powerful for the law. He may deride its coercive power, yet his contracts are obligatory; and, if society acquire the power of coercion, that power will be applied without previously enacting that his contract is obligatory.

Independent nations are individuals in a state of nature. Whence is derived the obligation of their contracts? They admit the existence of no superior legislative power which is to give them validity, yet their validity is acknowledged by all. If one of these contracts be broken, all admit the right of the injured party to demand reparation for the injury, and to enforce that reparation if it be withheld. He may not have the power to enforce it, but the whole civilized world concurs in saying that the power, if possessed, is rightfully used.

In a state of nature, these individuals may contract, their contracts are obligatory, and force may rightfully be employed to coerce the party who has broken his engagement.

What is the effect of society upon these rights? When men unite together and form a government, do they surrender their right to contract, as well as their right to enforce the observance of contracts? For what purpose should they make this surrender? Government cannot exercise this power for individuals. It is better that they should exercise it for themselves. For what purpose, then, should the surrender be made? It can only be, that government may give it back again. As we have no evidence of the surrender, or of the restoration of the right; as this operation of surrender and restoration would be an idle and useless ceremony, the rational inference seems to be, that neither has ever been made; that individuals do not derive from government their right to contract, but bring that right with them into society; that obligation is not conferred on contracts by positive law, but is intrinsic, and is conferred by the act of the parties. This results from the right which every man retains to acquire property, to dispose of that property according to his own judgment, and to pledge himself for a future act. These rights are not given by society, but are brought into it. The right of coercion is necessarily surrendered to government, and this surrender imposes on government the correlative duty of furnishing a remedy. The right to regulate contracts, to prescribe rules by which they shall be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised. So far as this power has restrained the original right of individuals to bind themselves by contract, it is restrained; but beyond these actual restraints the original power remains unimpaired.

This reasoning is, undoubtedly, much strengthened by the authority of those writers on natural and national law, whose opinions have been viewed with profound respect by, the wisest men of the present, and of past ages.

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QUESTIONS

1)   What is Marshall's central thesis? What language links Marshall's views with those of Blackstone? What are the key phrases?

2)   How are Marshall's views reflected in the following excerpt:

Article I, Section 10 reads:

No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.

Section 10 as a whole is plainly concerned with the administration of justice. The guarantee of its last clause is directed against the denial of a legal remedy to one who has a claim, arising from "injury done him in his person, property, or reputation," that has its legal source outside this section itself. For such a recognized legal injury, "every man shall have remedy by due course of law."

"...(T)he meaning of this choice of text is not a matter of mere speculation. Article I, .section 10 entered Oregon's constitution from the Indiana constitution of 1851. It may be traced back through the history of westward expansion, including Ohio's constitutions of 1802 and 1851 to progenitors in the earliest state constitutions. And here we find that the difference between a "remedies" clause and a due process clause antedates the United States Constitution and its Bill of Rights. The predecessors of the state "due process" clauses were guarantees against official deprivations except "by the law of the land" and were independent of the guarantee of legal remedies for private wrongs. The 1776 Delaware Declaration of Rights referred to the "law of the land" only in its provision for civil remedies:

That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land.