He
does no more when he promises to deliver a bale of cotton.
If it be proper to state the common-law meaning of promise and
contract in this way, it has the advantage of freeing the subject
from the superfluous theory that contract is a qualified
subjection of one will to another, a kind of limited slavery. It
might be so regarded if the law compelled men to perform their
contracts, or if it allowed promisees to exercise such
compulsion. If, when a man promised to labor for another, the law
made him do it, his relation to his promisee might be called a
servitude ad hoc with some truth. But that is what the law never
does. It never interferes until a promise has been broken, and
therefore cannot possibly be performed according to its tenor. It
is true that in some instances equity does what is called
compelling specific performance. But, in the first place, I am
speaking of the common law, and, in the next, this only means
that equity compels the performance of certain elements of the
total promise which are still capable of performance. For
instance, take a promise to convey land within a certain time, a
court of equity is not in the habit of interfering until the time
has gone by, so that the promise cannot be performed as made.
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