Commentaries On The Laws Of Scotland And On The Principles Of Mercatile Jurisprudence

Author : George Joseph Bell
Publisher : Rarebooksclub.com
ISBN 13 : 9781230065014
Total Pages : 620 pages
Book Rating : 4.0/5 (65 download)

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Download or read book Commentaries on the Law of Scotland, and on the Principles of Mercantile Jurisprudence written by George Joseph Bell and published by Rarebooksclub.com. This book was released on 2013-09 with total page 620 pages. Available in PDF, EPUB and Kindle. Book excerpt: This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1870 edition. Excerpt: ...if we add that the promise is given by way of accession to the principal debtor's obligation--that is to say, that it has as its cnusa that which is the causa of the principal debtor's obligation, and not any separate and independent cause of obligation peculiar to the cautioner himself. The cautioner might have become bound by other contracts for the identical sum or identical factum which the principal debtor is bound to pay or perform; but his obligation is not one of cautionry if it has a cause difierent from that of the obligation of the principal debtor. This essential characteristic of proper cautionry is clearly explained by Pothier, Tr. des Oblig. sec. 446, who employs it to discriminate between cautionry and the obligation of a mandator pecunia: crezlendz. The English lawyers mark the same characteristic by the term 'collateral.' (Theobald, pp. 1-3; Reid v Nash, 1 Wils. 305; Fell, p. 14, sec. 7, and p. 21, note; Pitman, pp. 3-26; Burge's Commentaries on Surstyship, pp. 20-29, and the cases pasaim.) The Statute of Frauds does not define the obligations to which it applies by any legal denomination: thence considerablc uncertainty, --some taking it for granted that the words were meant as a description, not perfectly accumbe, of collateral obligations, or what we should call cautionary obligations or guarantees;--others, that they include all promises, whether collateral or not, coming within the range of their literal significance; and in reviewing the English decisions, the courts seem to oscillate somewhat between the two canons of construction. In using these decisions as precedents applicable to our Act, this must always be kept in view. A promise to answer for the debt or default of another, is...