Another very clear one is found in contracts for the sale or
lease of a thing, and the like. Here the qualities or
characteristics which the owner promises that the thing furnished
shall possess, go to describe the thing which the buyer promises
to accept. If any of the promised traits are wanting in the thing
tendered, the buyer may refuse to accept, not merely on the
ground that he has not [336] been offered the equivalent for
keeping his promise, but also on the ground that he never
promised to accept what is offered him. /1/ It has been seen
that, where the contract contains a statement touching the
condition of the thing at an earlier time than the moment for its
acceptance, the past condition may not always be held to enter
into the description of the thing to be accepted. But no such
escape is possible here. Nevertheless there are limits to the
right of refusal even in the present class of cases. If the thing
promised is specific, the preponderance of that part of the
description which identifies the object by reference to the
senses is sometimes strikingly illustrated. One case has gone so
far as to hold that performance of an executory contract to
purchase a specific thing cannot be refused because it fails to
come up to the warranted quality. /2/
Another principle of dependency to be drawn from the form of the
contract itself is, that performance of the promise on one side
may be manifestly intended to furnish the means for performing
the promise on the other. If a tenant should promise to make
repairs, and the landlord should promise to furnish him wood for
the purpose, it is believed that at the present day, whatever may
have been the old decisions, the tenant's duty to repair would be
dependent upon the landlord's furnishing the material when
required. /3/
[337] Another case of a somewhat exceptional kind is where a
party to a bilateral contract agrees to do certain things and to
give security for his performance. Here it is manifest good-sense
to hold giving the security a condition of performance on the
other side, if it be possible. For the requirement of security
shows that the party requiring it was not content to rely on the
simple promise of the other side, which he would be compelled to
do if he had to perform before the security was given, and thus
the very object of requiring it would be defeated. /1/
Public-domain text, read in full here on John Shaqi.
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