for guaranteed transport is like mutual rescission of an advance purchase of goods. Its invalidity is assessed on two grounds. First, the rescission agreement may itself contain impermissible terms. Second, it may contain nothing objectionable in itself, but its objectionable nature becomes apparent when it is considered together with the original arrangement. The parties are then suspected of having intended and arranged matters to achieve that result, and are therefore prohibited from doing so as a safeguard against such means of circumvention. As for hire of a specified mount, there are two opinions concerning mutual rescission. According to the first, it is like an advance-purchase contract establishing a liability, and both grounds must be considered. According to the second, it is like mutual rescission of a sale of specified goods: only whether the rescission agreement itself contains impermissible terms is considered.
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To explain this outline: if a man enters into a hire contract for guaranteed transport and then agrees with the other party to rescind it in return for an additional payment, there are two possibilities: the additional payment comes either from the hirer or from the owner. The first possibility, where the hirer makes the additional payment, falls into two categories. The first is before payment of the hire charge; the second is after payment, whether before or after the parties separate and the owner goes away with the payment. For an additional payment by the hirer, once he has paid the hire charge, it makes no difference whether or not the owner has gone away with it. Each of these two categories comprises six cases: the additional payment may be gold, silver, or goods, payable immediately—making three cases—or it may be deferred, making another three and bringing the total to six. Thus, there are twelve cases involving an additional payment by the hirer.
An additional payment by the owner likewise falls into two categories. Here, however, the first is before payment of the hire charge, or after payment but before the owner has gone away with it. For an additional payment by the owner, it makes no difference whether he has not yet received the hire charge or has received it but has not gone away with it. The second category is after he has received the hire charge and gone away with it. Each of these two categories likewise comprises six cases, according to the classification already given for an additional payment by the hirer.
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If, before paying the hire charge, the hirer asks the owner to release him from a contract for guaranteed transport in return for an additional payment, and that additional payment is deferred, all agree that this is impermissible, because the hire transaction is converted from the hire charge due to the owner