Accept ance or revocation must be (Pand. § 603), whose opinion is to this effect. The declaration of an animus contrahendi (whether by way of proposal or of acceptance), when once made, must be regarded as continuing so long as no revocation of it is communicated to the other party. A revocation not communicated is in point of law no revocation at all. In this respect the revocation of a proposal or acceptance must be governed by the same rules as the proposal or acceptance itself. 5. An acceptance must be communicated to the proposer to be effectual, and the communication of an acceptance or thereof of its revocation is subject to the same rules as the comcommuni- munication of a proposal or of its revocation: provided that any means of communication prescribed or authorized subject to by the proposer are as against him deemed sufficient. cated like proposal, proviso that means If the proposer prescribes or authorizes the despatch of authorized an acceptance by means wholly or partly beyond the by proposer, and sender's control, such as the public post or telegraph, then in particu- an acceptance so despatched lar de spatch of (a) is complete as against the proposer from the time of answer by its despatch out of the sender's control; post, are deemed sufficient. General rule of (b) is effectual notwithstanding any miscarriage or delay in its transmission happening after such despatch. It should seem obvious that, as a matter of general princommuni- ciple, an uncommunicated mental assent cannot make a cation. contract. Yet as lately as 1877 it was found needful to reassert this principle in the House of Lords (a). It is true that the proposer may dispense with actual communication to this extent, that by prescribing a particular manner of communication he may preclude himself from afterwards showing that it was not in fact sufficient. In Lord Blackburn's words, "when an offer is made to another party, and in that offer there is a request express or implied that he must signify his acceptance by doing some particular thing, then as soon as he does that thing there is a complete (a) Brogden v. Metropolitan Ry. Co., 2 App. Ca., at p. 688 (Lord Selborne), at p. 691 (Lord Blackburn), and at p. 697 (Lord Gordon). The judgments in the Court below which gave rise to these remarks are not reported. contract" (a). The most important application of this exception will come before us immediately. But it is not true "that a simple acceptance in your own mind, without any intimation to the other party, and expressed by a mere private act, such as putting a letter into a drawer," will, as a rule, serve to conclude a contract. ment to It was supposed at one time that the Companies Act, Agree1862, had introduced a different rule in the case of agree- take shares ments to take shares, and that an applicant for shares not excep. tionally became a shareholder by mere allotment and registration, treated. though nothing were done to give notice to him; but it is now settled that this is not so; the ordinary rules as to the formation of contracts must be applied (b). Bearing in mind what these rules are for simple cases, let us proceed to more complex ones. ties as to The proviso above given and the explanation following Difficul it are intended to express the rules which, after much contracts uncertainty, have at length been settled by our Courts by correspondence. as to contracts entered into by correspondence between persons at a distance. Before dealing with authorities it may be useful to show the general nature of the difficulties that arise. We start with the principle that the proposer is bound from the date of acceptance. Then we have to consider what is for this purpose the date of acceptance, a question of some perplexity, and much vexed in the books. It appears just and expedient, as concerning the accepting party's rights, that the acceptance should date from the time when he has done all he can to accept, by putting his affirmative answer in a determinate. course of transmission to the proposer. From that time he must be free to act on the contract as valid, and disregard any revocation that reaches him afterwards. Hence the conclusion is suggested that at this point the contract is irrevocable and absolute. But are we to hold it absolute (a) Yet would this hold if the prescribed art were not of a kind fitted to make the acceptor's inten tion known to the proposer? Theories cases: doctrine of common Post-office. for all purposes, so that on the one hand the acceptor shall remain bound, though he should afterwards despatch a revocation which arrives with or even before the acceptance; and on the other hand, the proposer shall be bound, though, without any default of his own, the acceptance never reach him? These consequences seem, in turn, against reason and convenience. The proposer cannot, at all events, act on the contract before the acceptance is communicated to him; as against him, therefore, a revocation should on principle be in time if it reaches him together with or before the original acceptance, whatever the relative times of their despatch. On the other hand, it seems not reasonable that he should be bound by an acceptance that he never receives. He has no means of making sure whether or when his proposal has arrived (a), or whether it is or not accepted, for the other party need not answer at all. The acceptor might at least as reasonably be left to take the risk of his acceptance miscarrying, for in practice he can easily take means, if he think fit, to provide against this. In the judicial treatment of these questions, however, implied in considerations of a different kind have prevailed. It has English been generally assumed that there must be some one moment at which the consent of the parties is to be deemed agency of complete, and the contract absolute as against both of them, and for all purposes (as if it were a question of some mysterious virtue inherent in the nature of the transaction, and not of positive rules of law); and further, a peculiar character has been attributed to the Post-office as a medium of communication. In some of the cases it is said that the acceptance of a proposal by post completes the contract as soon as the letter is despatched, because the Post-office is the common agent of both parties. Doubtless the Postmaster-General is the agent of every one who sends a letter, for the purpose of conveying that letter (though an agent (a) The German post-office, however, undertakes (if required at the time of posting) to furnish the sender of any letter with an official certificate of its delivery. of pro rived from answer by who cannot be sued); but how this supposed common agency for two parties in correspondence is constituted or proved I confess myself unable to understand. Perhaps Doctrine this language was really intended to convey, by means of poser's a fiction, what has been more plainly said in the latest and risk dedecisive case, and is given above as the ground of the English his autho rule; namely, that a man who requests or authorizes an rizing acceptance of his offer to be sent in a particular way must post. take the risks of the mode of transmission which he has authorized, and that in the common course of affairs the sending of a written offer by post amounts to an authority to send the answer in the same manner. But there is a fiction in this also. The reason would be good in the case of a man desiring an answer to be sent to him by some extraordinary means of communication, by photophone, for example. But the post (which may now be said to include the telegraph) is the common and natural, or, in terms familiar to the law, reasonable and usual means of communication between persons who are not face to face. There is no real authority or request, for none is needed. People use the post-office as a matter of course. Even when a man desires an answer by return of post, he is not thinking of the answer being sent by post rather than in any other way, but of having it within a given time. Could it be held that an answer by telegraph would not be a good acceptance of a proposal in this form, or that it would not have been so before the telegraphs had been acquired by the post-office? The proposer of a contract by letter does not really choose the post as a means of communication more than the acceptor. Everybody knows that there is practically no choice. Our received doctrine first assumes à fictitious request, and thence infers a fictitious agreement to take all risks of transit, not only the risk of delay, but that of the acceptance not being delivered at all. Much of the language that has been used Revocasuggests the extreme consequence that even a revocation despatched after the acceptance and arriving before it would accept D tion arriv ing before ance. Earlier cases on be inoperative. If the contract is absolutely bound by posting a letter of acceptance, a telegram revoking it would be too late; and this even if the letter never arrived at all, so that the revocation were the only notice received by the proposer that there ever had been an acceptance. It is hard to believe that any Court would decide this: in Scotland, indeed, it has been decided the other way (a). The case, meanwhile, may arise in England any day. No satisfactory solution of these problems can in truth be attained without frankly taking account of their practical character. The thing sought should be to lay down such rules as would produce the least amount of inconvenience to both parties. This the Indian Contract Act has done (see Note A in Appendix), and, as it appears to me, with good success. Legal ingenuity might afterwards exercise itself in expressing the rules in the form most consonant with real or supposed first principles. However, we now have a settled rule-at least it is open to be reconsidered only in the House of Lords-on all points except that of a revocation outstripping the acceptance; and any settled rule is better than none. The earlier cases, of which an account is given in the contracts Appendix (a), are now of comparatively little importance. by corre- They established that an acceptance by post, despatched spondence. in due time as far as the acceptor is concerned, concludes the contract notwithstanding delay in the despatch by the proposer's fault (as if the offer is misdirected), or accidental delay in the delivery; and that the contract, as against the proposer, dates from the posting, so that he cannot revoke his offer after the acceptance is despatched. Until 1879 it was uncertain whether a letter of acceptance that miscarried altogether was binding on the proposer. In that year the very point came before the Court of Appeal (b). An application for shares in the plaintiff company, whose office was in London, was handed by the v. Grant, 4 Ex. D. 216, (a) See Note B. (b) Household Fire Insurance Co. |