ion of duty shrinks and at the
same time grows more precise when we wash it with cynical acid and expel
everything except the object of our study, the operations of the law.

Nowhere is the confusion between legal and moral ideas more manifest
than in the law of contract. Among other things, here again the
so-called primary rights and duties are invested with a mystic
significance beyond what can be assigned and explained. The duty to keep
a contract at common law means a prediction that you must pay damages
if you do not keep it--and nothing else. If you commit a tort, you are
liable to pay a compensatory sum. If you commit a contract, you are
liable to pay a compensatory sum unless the promised event comes to
pass, and that is all the difference. But such a mode of looking at the
matter stinks in the nostrils of those who think it advantageous to get
as much ethics into the law as they can. It was good enough for Lord
Coke, however, and here, as in many others cases, I am content to abide
with him. In Bromage v. Genning, a prohibition was sought in the
Kings' Bench against a suit in the marches of Wales for the specific
performance of a covenant to grant a lease, and Coke said that it would
subvert the intention of the covenantor, since he intends it to be at
his election either to lose the damages or to make the lease. Sergeant
Harra for the plaintiff confessed that he moved the matter against his
conscience, and a prohibition was granted. This goes further than we
should go now, but it shows what I venture to say has been the common
law point of view from the beginning, although Mr. Harriman, in his very
able little book upon Contracts has been misled, as I humbly think, to a
different conclusion.

I have spoken only of the common law, because there are some cases
in which a logical justification can be found for speaking of civil
liabilities as imposing duties in an intelligible sense. These are
the relatively few in which equity will grant an injunction, and will
enforce it by putting the defendant in prison or otherwise punishing him
unless he complies with the order of the court. But I hardly think it
advisable to shape general theory from the exception, and I think it
would be better to cease troubling ourselves about primary rights and
sanctions altogether, than to describe our prophecies concerning the
liabilities commonly imposed by the law in those inappropriate terms.

I mentioned, as other examples of t