" This view of the case appears to us
extremely doubtful, as it would render the contract binding on one of
the parties only--namely, the buyer; whereas Bracton and "Fleta" aver
that if the seller default he must pay double the earnest. Mr. Gordon
subsequently adduces a Preston decree, that "if a buyer should buy any
goods in large or small quantities and give earnest, and he who agreed
to sell should rue the bargain, he shall pay the double asked. But if
the buyer fingers the goods, he must either take them or pay the seller
5_s._" We infer, therefore, from his evidence alone, that the payment of
earnest was essentially symbolical and served all the purpose of a
written contract.
That the act was regarded as expressive of mutual understanding is shown
by a Northampton ordinance of about the year 1260: "That if anyone put a
penny or any merchandise before the seller be agreed to the bargain, he
shall forfeit the penny to the use of the bailiffs." The importance of
the due-fulfilment of the contract was recognized by the imposition of a
penalty on anyone who delivered the earnest and afterwards declined to
make good the bargain. At Waterford about 1300 it was enacted that
"whoever gives God's silver and repents, be he who he may, shall pay
10s."; and at Cork in 1614 an ordinance was passed, disfranchising the
defaulter of his councillorship and freedom and compelling him to pay a
fine of L20.
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