Chap. VI.]

OBSERVANCE OF CONTRACTS.

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and circumstances open to the observation of both parties, orequally within the reach of their ordinary diligence ; becauseneither party reposes in any such confidence, unless it be special-ly tendered or required. Each one, in ordinary cases, judgesfor himself, and relies upon the sufficiency of his own knowledge,skill, and diligence.

The common law affords to every one reasonable protectionagainst fraud in dealing, but it does not go to the romantic lengthof giving indemnity against the consequences of indolence andfolly, or of careless indifference to the ordinary and accessiblemeans of information. It reconciles the claims of conveniencewith the duties of good faith, to every extent compatible with theinterests of commerce ; meaning by the term commerce, everykind of ordinary intercourse in the way of business transactions.

This it does, by requiring the purchaser to apply his attentionto those particulars which may be supposed within the reach ofhis observation and judgment; and the vendor to communicatethose particulars and defects which cannot be supposed to be im-mediately within the reach of such attention.* Chancellor Kentis of the opinion, that the common law has carried the doctrineof disclosures by each party in the formation of the contract ofsale, to every reasonable and practicable extent, that is consistentwith the interests of society.f “ The only difference ” (inregard to disclosures) “between writers on the highest branchesof the moral law, and the doctrines of our own judicial tribunalsis, that, while both hold it to be the duty of the seller to discloseall the defects or impairing circumstances within his knowledge ,the common law, on account of the difficulty of enforcing the rulein all cases, and the disorders it might sometimes occasion insociety, draws a line of distinction between circumstances whichare open equally to the observation of both parties, and thosewhich are within the knowledge and reach of one alone. Theconcealment of the latter it punishes.” J

On this subject, the civil law, as stated by the learned and

* Kent’s Commentaries on American Law, Vol. II. pp. 377 - 380.t Idem. Vol. II. p. 384.

} Manuscript Lecture of Professor Greenleaf, of Harvard University.28