Austrian Observations and summary. The Austrian Code (§§ 934, 935), following the extended interpretation of the Roman rule sanctioned by the prevailing modern opinion in Germany, see Vangerow, Pand. § 611 (3.326), enacts that inadequacy of consideration to the extent of more than one-half in any bilateral contract gives the party injured a right to call upon the other to make up the deficiency or rescind the contract at that other's option. This right may be waived beforehand, and the rule does not apply to judicial sales by auction. Thus the French Code follows the rule of the Roman law, giving the remedy to the seller only, but adds a qualifying rule of evidence which limits the remedy to cases where there is some ground of suspicion besides the undervalue itself. The Prussian Code reverses the civil law by giving the remedy only to the buyer, and the Austrian Code extends it to both parties, and to every kind of contract for valuable consideration. These discrepancies seem to favour the conclusion that the course our own law has always taken with respect to property in possession, and now takes (since the Act 31 Vict. c. 4) with respect to property in reversion, is on the whole the wisest. It is worth while to observe that the recent Civil Code of Lower Canada has altered the law of that province in the same direction, and declares without exception that persons of full age "are not entitled to relief from their contracts for cause of lesion only" (§ 1012). On the other hand the question was considered in framing the Italian Code, and the rule of the civil law was deliberately adhered to. (Mazzoni, Diritto Civile Italiano, 3.357.) The different enactments we have mentioned may be thus recapitulated : INDEX. ACCEPTANCE: of proposal, general but not universal form of agreement, 5 by performing conditions of proposal, 12 double, of same proposal, 28 must be communicated, 30 when the contract is made by correspondence: difficulties of the theories in English authorities, 32 by post, effectual though never delivered, 35 will not relate back to date of proposal, 36 must be unqualified, 37 examples of insufficient acceptance, 38 of sufficient acceptance, 39 with immaterial or ambiguous addition, 39 by conduct as well as by words, must be certain, 45 ACCIDENT: destroying subject matter of contract, effect of, 378, 383 ACCOUNT: action of, 153 ACKNOWLEDGMENT : of debt barred by Statute of Limitation, 613 ACQUIESCENCE: cannot exist without knowledge, 414 "ACT OF GOD": meaning of no general definition possible, 381 ADVERTISEMENT: contract by, 12, 897. such contracts not exempt from Statute of Frauds, 22 AGENCY: general theory of, 49, 212 acquisition of rights and duties through, 107 positions of actual or professed agent as regards principal, 107 contracts made by agents, 107, sqq. contract by authorized agent known to be such, 108 effect of death of principal on subsequent contracts of agent before when agent is personally liable, 109 how agent's liability may be excluded or limited when he contracts in his own name, 110 contract by authorized agent, but not known to be such, 111 rights of undisclosed principal, 111 rights of other contracting party, 112 election to sue principal or agent, 113 position of professed agent who has no authority: where a responsible where no responsible principal is named, 118 when professed agent may disclose himself as real principal, 120 AGENT: authority of, its constitution and end, 107 knowledge of, is knowledge of principal, 109, 113 must not deal secretly on his own account in business of agency, 261 must not profit by his own negligence, 263 must account to principal notwithstanding collateral illegality in the statements of, how far binding on principal, 542 always liable for his own wrong, 545 AGREEMENT: defined, 1 void, what, 1, 7 consent how expressed, 1 analysis of, as accepted proposal, 4 (See ACCEPTANCE, PROPOSAL.) no contract unless the terms are certain, 42 no contract where the promise is illusory, 43 of LUNATIC not so found by inquisition (which see) not void but UNLAWFUL (which see), Ch. VI. where there may be an apparent, but no real consent and no con- election to adopt, where originally void, 465 operation of document as, may be conditional, 472 parol addition to or variation in terms of-effect as regards specific informal, how affected by Statute of Frauds, 167, 899. execution of, may be good consideration or accord and effect of part performance, 623 ante-nuptial, how far made binding by post-nuptial settle- Savigny's definition of, considered, 647 AGREEMENTS OF IMPERFECT OBLIGATION: conflict between lex fori and lex contractus, 615, 618, 637 ALIEN, wife of, when she can contract as feme sole, 81 enemies, disabled from suing here but not from contracting, 106 APOTHECARIES: cannot recover charges unless properly qualified at time of services, ARBITRATION: agreements for reference, now practically enforceable, 308 ARBITRATOR: can recover remuneration on express contract, 638 ARTIFICIAL PERSON: nature of, 122 ARTIFICIAL PERSON-continued. partnerships and other bodies treated as, by custom though not by separate estate of married woman, analogous to, 91 ASSIGNMENT: of CONTRACT (which see), 224, 877. ASSUMPSIT: action of, its introduction, 154 ATTORNEYS AND SOLICITORS. See SOLICITOR. AUCTION: sale by, formation of contract in, 13 employment of puffers at, 493 effect of misleading particulars at, 516 AWARD: whether stranger can be bound by, 210 mistake in, can be rectified only by the Court, 419 BANKRUPTCY : loan obtained by infant under pretence of full age, provable in, 77 secret agreements with particular creditors void, 256 laws, attempts to evade, 272 BARRISTER: fees of, for advocacy not recoverable from client, 638 for non-litigious business, qu., 639 fees paid by client to solicitor, whether recoverable by counsel, 640 BILL OF EXCHANGE : infant's, not void but voidable, 57 is not an equitable assignment, 95, n. BILL OF LADING: transfer of contract by indorsement of, 241 effect of misdescription of goods in, 506 BOND: of infant, voidable, not void, 52 with unlawful condition, void, 345 is absolute if the condition is impossible at the time, but discharged if it subsequently becomes impossible, 402 with alternative conditions, where one impossible, 403 |