A Christian Directory, Part 4: Christian Politics

by Richard Baxter

1. We must distinguish between culpable and inculpable error. 2. Between an error about the principal matter, and about some smaller accidents or circumstances. 3. Between a case where the law of the land or the common good interposeth, and where it doth not.

1. If it be your own fault that you are mistaken you are not wholly freed from the obligation; but if it was your gross fault, by negligence or vice, you are not at all freed; but if it were but such a frailty as almost all men are liable to, so that none but a person of extraordinary virtue or diligence could have avoided the mistake, then equity will proportionably make you an abatement or free you from the obligation. So far as you were obliged to understand the matter, so far you are obliged by the contract; especially when another is a loser by your error.

2. An inculpable error about the circumstances, or smaller parts, will not free you from an obligation in the principal matter; but an inculpable error in the essentials will.

3. Except when the law of the land or the common good, doth otherwise overrule the case; for then you may be obliged by that accident. In divers cases the rulers may judge it necessary, that the effect of the contract shall depend upon the bare words, or writings, or actions; lest false pretences of misunderstanding should exempt deceitful persons from their obligations, and nothing should be a security to contractors. And then men's private commodity must give place to the law and to the public good.

4. Natural infirmities must be numbered with faults, though they be not moral vices, as to the contracting of an obligation, if they be in a person capable of contracting. As if you have some special defect of memory or ignorance of the matter which you are about. Another who is no way faulty by over-reaching you, must not be a loser by your weakness. For he that cometh to the market, or contracteth with another that knoweth not his infirmity, is to be supposed to understand what he doth, unless the contrary be manifest: you should not meddle with matters which you understand not; or if you do, you must he content to be a loser by your weakness.

5. Yet in such cases, another that hath gained by the bargain, may be obliged by the laws of equity and charity, to remit the gain, and not to take advantage of your weakness; but he may so far hold you to it, as to secure himself from loss; except in cases where you become the object of his charity, and not of commutative justice only.

Quest. V. Is a drunken man, or a man in a transporting passion, or a melancholy person, obliged by a contract made in such a case?

Answ. Remember still, that we are speaking only of contracts about matters of profits or worldly interest; and not of marriage or any of another nature. And the question as it concerneth a man in drunkenness or passion, is answered as the former about culpable error; and as it concerneth a melancholy man, it is to be answered as the former question, in the case of natural infirmity. But if the melancholy be so great as to make him uncapable of bargaining, he is to be esteemed in the same condition as an idiot, or one in deliration or distraction.

Quest. VI. But may another hold a man to it, who in drunkenness or passion maketh an ill bargain, or giveth or playeth away his money; and repenteth when he is sober?

Answ. He may (ordinarily) take the money from the loser, or him that casteth it thus away; but he may not keep it for himself: but if the loser be poor, he should give it to his wife or children whom he robbeth by his sin: if not, he should either give it to the magistrate or overseer for the poor, or give it to the poor himself. The reason of this determination is, because the loser hath parted with his propriety, and can lay no further claim to the thing; but yet the gainer can have no right from another's crime: if it were from an injury, he might, so far as is necessary to reparations; but from a crime he cannot; for his loss is to be estimated as a mulct or penalty, and to be disposed of as such mulcts as are laid on swearers and drunkards are. Only the person by his voluntary bargain, hath made the other party instead of the magistrate, and authorized him (in ordinary cases) to dispose of the gain, for the poor or public good.