particular place for acceptance, and if it does so, an acceptance elsewhere will not do (a). The real question in cases of this kind is whether the condition as to time, place, or manner of acceptance was in fact part of the terms of the proposal.

There is direct authority for the statement that the proposal must at all events be taken as limited to a reasonable time (b); nor has it ever been openly disputed. The rule is obviously required by convenience and justice. It may be that the proposer has no means of making a revocation known (e.g. if the other party changes his address without notice to him, or goes on a long journey), and he cannot be expected to wait for an unlimited time. There is also direct authority to show that an acceptance not communicated to the proposer or his agent does not make a contract (c); but this is subject to an important exception, as we shall presently see, where the parties are in correspondence through the post-office.

tion of

4. A proposal is revoked by communication to the other Revocaparty of the proposer's intention to revoke it, and the proposal revocation can take effect only when such communication must be is made before acceptance.

communi

cated

ceptance.

The communication may be either express or tacit, and before acnotice received in fact, whether from the proposer or from any one in his behalf or otherwise, is a sufficient communication.

tion after

The rule involves two or three points which, strange to Revocasay, were not expressly disposed of by any English authority acceptance until quite lately. The first is that an express revocation too late. communicated after acceptance, though determined upon before the date of the acceptance, is too late. In the earlier editions of this book the question was treated as

(a) Eliason v. Henshaw (Sup. Ct. U.S.), 4 Wheat. 225, Langdell, Sel. Ca. on Cont. 48.

(b) Baily's ca., 5 Eq. 428, 3 Ch. 529; Ramsgate Hotel Co. v. Montefiore, sume Co. v. Goldsmid, L. R. 1

Ex. 109.

(c) M'Iver v. Richardson, 1 M. & S. 557; Mozley v. Tinkler, 1 C. M. & R. 692; Russell v. Thornton, 4 H. & N. 788, 798, 804; Hebb's ca., 4 Eq. 9.

Byrne v practically settled, but only in 1880 was it actually decided,

Van Tien

hoven.

As to tacit revocation.

first by Lindley, J. in Byrne v. Van Tienhoven (a), and
again shortly afterwards by Lush, J. (now Lord Justice) in
Stevenson v. MacLean (b). It will suffice to give shortly
the facts of the former case. The defendants at Cardiff
wrote to the plaintiffs at New York on the 1st of October,
1879, offering for sale 1000 boxes of tinplates on certain
terms. Their letter was received on the 11th, and on the
same day the plaintiff accepted the offer by telegraph,
confirming this by a letter sent on the 15th. Meanwhile
the defendants on the 8th of October had posted a letter
withdrawing their offer of the 1st: this reached the plain-
tiffs on the 20th. The plaintiffs insisted on completion of
the contract; the defendants maintained that there was no
contract, the offer having been, in their view, withdrawn
before the acceptance was either received or despatched.
Lindley, J. stated as follows the questions to be considered:
"1. Whether a withdrawal of an offer has any effect until
it is communicated to the person to whom the offer has
been sent? 2. Whether posting a letter of withdrawal is a
communication to the person to whom the letter is sent?"
The first he answered in the negative, on the principle
"that a state of mind not notified cannot be regarded in
dealings between man and man, and that an uncommuni-
cated revocation is for all practical purposes and in point
of law no revocation at all." The second he likewise
answered in the negative, on grounds of both principle and
convenience, and notwithstanding an apparent, but only
apparent, inconsistency with the rule as to acceptances by
letter which will be presently considered.

It seems impossible to find any reason in principle why the necessity for communication should be less in the case of a revocation which is made not by words but by conduct, as by disposing to some one else of a thing offered for sale. Nor does it seem practicable in the face of the decisions

(a) 5 C. P. D. 344.

(b) 5 Q. B. D. 346.

just cited, though they do not actually cover such a case, to say that any such difference is recognized by the law of England. The authority most in point, Dickinson v. Dodds (a), is not of itself decisive. The facts were these. houses to B., adding a

A. offered in writing to sell certain statement that the offer was to be “left over" until a time named; which statement, as we have already seen, could have no legal effect unless to warn B. that an acceptance would not be received at any later time. B. made up his mind the next morning to accept, but delayed communicating his acceptance to A. In the course of the day he heard from a person who was acting as his agent in the matter that A. had meanwhile offered or agreed to sell the property to C. Early on the following day (and within the time limited by A.'s memorandum) B. sought out A. and handed a formal acceptance to him; but A. answered, "You are too late. I have sold the property." It was held in the first instance by Bacon, V.C., that A. had made to B. an offer which up to the time of acceptance he had not revoked, and that consequently there was a binding contract between A. and B. But in the Court of Appeal this decision was reversed. James and Mellish, L.JJ., pointed out that, although no "express and actual withdrawal of the offer" had reached B., yet by his own. showing B., when he tendered his acceptance to A., well knew that A. had done what was inconsistent with a continued intention of contracting with B. Knowing this, B. could not by a formal acceptance force a contract on A. (b). It does not appear that the knowledge which B. in fact had was conveyed to him or his agent by or through A., or any one intending to communicate it on A.'s behalf. Therefore the case decides that knowledge in point of fact of the

(a) 2 Ch. D. 463 (C.A.). One or two immaterial details are omitted in stating the facts.

(b) Baggallay, J.A. concurred. The head-note says: "Semble, that the sale of the property to a third person would of itself amount to a

withdrawal of the offer, even although the person to whom the offer was first made had no knowledge of the sale." This, I venture to think, is quite unwarranted by the judg ments. See especially the remarks of Mellish, L.J. ad fin.

accept

ance.

proposer's changed intention, however it reaches the other party, will make the proposer's conduct a sufficient revocation. But what if B. had communicated his acceptance to A. without knowing anything of A.'s dealings with C.? This question remains open, and must be considered on principle.

Possibility Suppose that A. offers to sell one hundred tons of iron of double to B., not designating any specific lot of iron, and that B. desires time to consider, and A. assents. Then A. meets with C., they talk of the price of iron, and C. offers A. a better price than he has asked from B., and they strike a bargain for a hundred tons. Then B. returns, and in ignorance of A.'s dealings with C. accepts A.'s offer formerly made to him. Here are manifestly two good contracts. A. is bound to deliver 100 tons of iron to B. at one price, and 100 tons to C. at another. And if A. has in fact only one hundred tons, and was thinking only of those hundred tons, it makes no difference. He would be equally bound to B. and C. if he had none. He must deliver them iron of the quantity and quality contracted for, or pay damages. How then will the case stand if, other circumstances being the same, the dealing is for specific goods, or for a house? Here it is impossible that A should perform his agreement with both B. and C., and therefore they cannot both make him perform it; but that is no reason why he should not be answerable to both of them. The one who does not get performance may have damages. It remains to ask which of them shall have the option of claiming performance, if the contract is otherwise such that its performance can be specifically enforced. The most convenient solution would seem to be that he whose acceptance is first in point of time should have the priority: for the preference must be given to some one, and the first acceptance makes the first complete contract. There is no reason for making the contract relate back for this purpose to the date of the proposal.

It is right to add that Cooke v. Oxley (a) may be so read as to support the opinion that a tacit revocation need not be communicated at all. But the apparent inference to this effect is expressly rejected in Stevenson v. MacLean (b), and therefore need not be discussed here.

of Con

Roman law supplies no direct answer to questions of Opinions this class, and not much that tends to suggest one. tinental Modern civilians have differed greatly in their opinions. writers. Pothier lays down a rule directly contrary to that now settled in our law. The passage (Contr. de Vente, § 32) is well known, and may also be seen, but slightly abridged, in Mr. Benjamin's work on Sale (pp. 57, 58). Pothier does not fail to see the manifestly unjust consequences of letting a revocation take effect, though the other party has received, accepted, and acted upon the proposal without knowing anything of the proposer's intention to revoke it; but he escapes them by imposing an obligation on the proposer, upon grounds of natural equity independent of contract, to indemnify the party so accepting against any damage resulting to him from the transaction. This treatment of the subject wholly overlooks the consideration that not intention in the abstract, but communicated intention, is what we have to look to in all questions of the formation of contracts (c). And the obligation to indemnify (which must be classed as quasi ex delicto if anything) is not only a cumbrous and inelegant device, but, as Mr. Benjamin points out, overshoots its mark by being in turn unfair to the proposer. The same or a closely similar view has been taken by some recent German writers of repute (d). Far more satisfactory is Vangerow

(a) 3 T. R. 653.

(b) 5 Q. B. D. at p. 351. Sir W. R. Anson, writing in 1879, and troubled by this construction of Cooke v. Oxley, and apparently accepting the head-note in Dickinson v. Dodds, makes a distinction between cases where the parties are in immediate communication and where they "communicate by correspondence." (Principles of the English Law of Contract, p. 17.)

In the light of the latest authorities
no such expedient seems necessary.

(c) Leake, Elementary Digest of
the Law of Contracts, 44 n.

(d) Windscheid, Pand. § 307, citing among others Ihering, who calls the right acquired on this theory by the acceptor without notice of revocation "das negative Vertragsinteresse." So too Bell, Principles of the Law of Scotland, § 73.