hereafter. This measure will become the law of the Confederation in September, unless the right of appeal to a popular vote reserved by the Federal Constitution is exercised in the meantime. It is to take effect on the 1st of January, 1883, and will probably be the most complete code in existence on the subjects comprised in it. An authentic French text of the code (not a translation, but a simultaneous recension) is also published.

CORRIGENDA.

P. 42, line 1, for 6 read 7.

P. 45, line 12, for 7 read 8.

P. 98, note b, for D. R. read L. R.

P. 151, note a, line 8 from foot, for nothing read noting.

Pp. 567, note d, and 621, note a, for 5 B. & C. read 7 B. & C.

PRINCIPLES OF
OF CONTRACT.

CHAPTER I.

AGREEMENT, PROPOSAL, AND ACCEPTANCE.

ment.

1. AN agreement is an act in the law whereby two or Agreemore persons declare their consent as to any act or thing to be done or forborne by some or one of those persons for the use of the others or other of them.

2. Such declaration may consist of

Expression of

a) the concurrence of the parties in a spoken or consent. written form of words as expressing their

common intention, or

b) a proposal made by some or one of them, and
accepted by the others or other of them.

3. The declaration of any person of his intention to do Promise. or forbear from anything at the request or for the use of another is called a promise.

4. Every agreement and promise enforceable by law is Contract.

a contract.

agreement.

5. An agreement which has no legal effect is said to be Void void. An agreement which ceases to have legal effect is said to become void or to be discharged.

contract.

6. An agreement is said to be a voidable contract if it is voidable enforceable by law at the option of one or more of the parties thereto but not at the option of the other or others.

B

Explanattion.

Nature

of consent.

The foregoing statements are now to be explained, so far as appears needful at the outset of the work.

1. Definition of Agreement.-The first and most essenand scope tial element of an agreement is manifestly the consent of the parties. There must be the meeting of two minds in one and the same intention. But in order that their consent may make an agreement of which the law can take notice, other conditions must be fulfilled. The agreement must be, in our old English phrase, an act in the law that is, it must be on the face of the matter capable of having legal effects. It must be concerned with duties and rights which can be dealt with by a court of justice. And it must be the intention of the parties that the matter in hand shall, if necessary, be so dealt with, or at least they must not have the contrary intention. An appointment between two friends to go out for a walk or to read a book together is not an agreement in the legal sense: for it is not meant to produce, nor does it produce, any new legal duty or right, or any change in existing ones (a). Again, there must not only be an act in the law, but an act which determines duties and rights of the parties. A consent or declaration of several persons is not an agreement if it affects only other people's rights, or even if it affects rights or duties of the persons whose consent is expressed without creating any obligation between them. The verdict of a jury or the judgment of a full Court is a concurrent declaration of several persons affecting legal rights; but it is not an agreement, since

(a) Nothing but the absence of intention seems to prevent a contract from arising in many cases of this kind. A. asks B. to dinner and B. accepts. Here is proposal and acceptance of something to be done by B. at A.'s request, namely, coming to A.'s house at the appointed time, and the trouble and expense of doing this are ample consideration for A.'s promise to provide a dinner. Why is A. not legally bound to have meat and drink ready for B., so that if A. had forgotten his invitation

and gone elsewhere B. should have a right of action? Only because no legal bond was intended by the parties. It might possibly be said that these are really cases of contract, and that only social usage and the trifling amount of pecuniary interest involved keep them out of courts of justice. But I think Savigny's view, which is here adopted, is the better one. There is not a contract which it would be ridiculous to enforce, but the original proposal is not the proposal of a contract.

tion.

the rights affected are not those of the judges or jurymen. If a fund is held by the trustees of a will to be paid over to the testator's daughter on her marriage with their consent, and they give their consent to her marrying J. S., this declaration of consent affects the duties of the trustees themselves, for it is one of the elements determining their duty to pay over the fund. Still it is not an agreement, for it concerns no duty to be performed by any one of the trustees towards any other of them. There is a common duty to the beneficiary, but no mutual obligation. By Obligaobligation we mean the relation that exists between two persons of whom one has a private and peculiar right (that is, not a merely public or official right, or a right incident to ownership or a permanent family relation) to control the other's actions by calling upon him to do or forbear some particular thing (a). An agreement might be defined, indeed, as purporting to create an obligation. This, however, would require the use and definition of obligation as a technical term; and, partly to avoid multiplying definitions, partly because the term in this strict usage hardly belongs to the accustomed language of English law, we prefer to say (what is in effect the same) that an agreement contemplates something to be done or forborne by one or more of the parties for the use of the others or other. The word use is familiar in English lawbooks from early times in such a connexion as this; and I think it mostly if not always imports the creation of a personal claim, Forderung as the German writers call it, on the part of him for whose use a thing is said to be done.

consent.

It may be worth while to add that the common inten- Proof of tion of the parties to an agreement is a fact, or inference of fact, which, like any other fact, has to be proved according to the general rules of evidence. When it is said, therefore, that the true intent of the parties must govern the decision of all matters of contract, this means such an intent as a court of justice can take notice of. Under (a) Savigny, Syst. i. 338-9; Obl. i. 4, seq.

Proposal and acceptance.

Is the analysis

certain circumstances, for example, the law of evidence does not allow a party to show that his intention was not in truth such as he made or suffered it to appear.

2. Ways of declaring consent.-Two distinct modes of the formation of an agreement are here specified. It is possible, however, to analyse and define agreement as constituted in every case by the acceptance of a proposal. In fact this is done in the Indian Contract Act. And it is appropriate to most of the contracts which occur in daily life, buying and selling, letting and hiring, in short all transactions which involve striking a bargain. One party proposes his terms; the other accepts, rejects, or meets them with a counter-proposal; and thus they go on till there is a final refusal and breaking off, or till one of them names terms which the other can accept as they stand. The analysis is presented in a striking form by the solemn question and answer of the Roman Stipulation, where the one party asked (specifying fully the matter to be contracted for): That you will do so and so, do you covenant? and the other answered with the same operative word: I covenant (a). Yet the importance of proposal and acceptance as elements of contract has been much more distinctly brought out in English jurisprudence than by writers on the modern civil law (b); and, one may add, on the whole more rationally treated.

Does this analysis, however, properly apply to a case in universally which the consent of the parties is declared in a set form, applicable? as where they both execute a deed or sign a written agreement? It may be said that, although there is no proposal or acceptance in the final transaction, the terms of the document must have been settled by a process reducible to the acceptance of a proposal, and therefore this descrip

(a) No doubt the formula Spondes? spondeo, originally the only binding one, was in early times supposed to have a kind of magical effect. But it was necessary that the stipulator should hear the promisor's answer.

(b) Increased attention has how.

ever been paid to this topic in Germany. See Vangerow, Pand. § 603, or Windscheid, Lehrbuch des Pandektenrechts, § 306. The technical terms are Antrag for our offer or proposal, Annahme for acceptance.