tion of the formation of agreements may be maintained as a perfectly general one. This view was tacitly adopted in the first two editions of this book. But it seems, on further consideration, unsatisfactory. For the formal instrument has a force apart from and beyond that of the negotiation which fixed its terms. And it may well be, and sometimes is the case, that the parties intend not to be legally bound to anything until their consent is formally declared. In such a case it cannot be said that the proposal and acceptance constitute an agreement, at all events not the true and final agreement. Take the common case of a lease. There is generally an enforceable agreement, constituted by letters or memorandum, before the lease is executed. But the lease itself is (besides its effect as a transfer of property) a new contract or series of contracts. In this who is the proposer and who the acceptor? Are we to say that the lessor is the proposer because in the common course he executes the lease before the lessee executes the counterpart? Or are we to take the covenants severally, and say that in each one the party with whom it is made is the proposer, and the party bound is the acceptor? What, again, if two parties are discussing the terms of a contract and cannot agree, and a third indifferent person suggests terms which they both accept? Shall we say that he who accepts them first thereby proposes them to the other? It is possible to say this, but not without a certain strain of thought and language. And what if they accept at the same moment? The truth is, as I venture to think, that the exclusive pursuit of the analytical method in dealing with legal conceptions always leads into some strait of this kind, and if the pursuit be obstinate, lands us in sheer fictions. In this case it seems at least harmless to let the formal or declaratory process of establishing a contract stand on its own footing side by side with the discursive or bargain-striking process. Even apart from the difficulty, to which we shall immediately come, that there may be a Promise: may exist and bind as con tract before acceptance in English law. binding promise without any acceptance at all, I do not think the one is fairly reducible to the other. The terms proposal and acceptance are defined by the Indian Contract Act (a), but for natural-born speakers of English they seem hardly to need more definition than is implied in the rules which have to be subsequently given. In English authorities proposal and offer are used as synonymous terms, offer being, if anything, the more common. 3. Definition of Promise.- The definition of the Indian Contract Act is that "a proposal when accepted becomes a promise." This again is apt and sufficient for the everyday or bargaining type of contract. But there are cases which it seems not to cover. Not only a promise, in the ordinary sense of the word, may be made in writing before there is any acceptance of it by the person to whom it is made, but if made by deed it is at once binding and irrevocable. Certainly this doctrine is of an archaic and technical kind, resting as it does more on the formal character of a deed than on any principle of general application; and possibly, or more than possibly, its expediency is doubtful. But it is a settled part of the law of England (b). If the analytical view of the Indian Contract Act is to be applied to the existing state of English jurisprudence, it can be done only by treating this class of cases as anomalous. It will not do to say that the contract is complete when the other party knows of the promise and assents; for if that were so, it could in the meantime be revoked. And if we say that acceptance is presumed in the case of an offer which is unconditional and wholly for the benefit of the party to whom it is made, we are at once in the region of fictions. It might serve a little better to say that, by an exceptional effect of the form of the transaction, the proposal is in these cases irrevocable. But this is only another way of saying that the regular analysis does not hold good. (a) See Note A. (b) Xenos v. Wickham, L. R. 2 H. L. 296, 323, and authorities there cited: see at pp. 300, 309. For the reasons on the other side see the opinion of Willes, J. at pp. 315, 316. tion of able agree 4. Definition of Contract.-The term contract is here Restricconfined to agreements enforceable by law. This restric- contract tion, suggested perhaps by the Roman distinction between to enforcecontractus and pactum, is believed to have been first ments. introduced in English by the Indian Contract Act. It seems a manifest improvement, and free from the usual drawbacks of innovations in terminology, as it makes the legal meaning of the words more precise without any violent interference with their accustomed use. agreement; voidable. 5. Void Agreements.-The distinction between void and Void voidable transactions is a fundamental one, though it is distinction" often obscured by carelessness of language even in modern of void and books. An agreement or other act which is void has from the beginning no legal effect at all, save in so far as any party to it incurs penal consequences, as may happen where a special prohibitive law both makes the act void and imposes a penalty. Otherwise no person's rights, whether he be a party or a stranger, are affected. A voidable act, on the contrary, takes its full and proper legal effect unless and until it is disputed and set aside by some person entitled so to do. The definitions of the Indian Contract Act on this head are simpler in form than those given above: but certain peculiarities of English law prevent us from adopting the whole of them as they stand. It is not correct as an universal proposition in England that “an agreement not enforceable by law is said to be void," for we have agreements that cannot be sued upon, and yet are recognized by law for other purposes and have legal effect in other ways (a). contract. 6. Voidable Contracts.-The definition here given is Voidable from the Indian Contract Act. The idea is not an easy one to express in terms free from objection. Perhaps it would be better to say that a voidable contract is an agreement such that one of the parties is entitled at his option. to treat it as never having been binding on him. The Anglo-Indian definition certainly covers rather more than (a) See Ch. XII. below. Consideration. Special rules and ac the ordinary use of the terms. Cases occur in English law where, by the effect of peculiar enactments, there is a contract enforceable by one party alone, and yet we should not naturally call it a voidable contract. An example is an agreement required by the Statute of Frauds to be in writing, which has been signed by one party and not by the other. Here the party who has signed is bound and the other is free. "Voidable contract" seems not exactly the appropriate name for such a state of things. And it may even be said that a contract which has been completely performed on one side is literally "enforceable by law at the option of one of the parties" only. But the definition as it stands cannot practically mislead (a). Consideration is also defined in the interpretation clause of the Indian Act. Perhaps it is to be regarded rather as a condition generally (though not always) imposed by a positive rule of English law as needful to the formation of a binding contract than as an elementary constituent of an agreement. In fact the English system of law, as distinguished from those of the Continent and even of Scotland, is the only one in which the notion is fully developed. Hereafter a fuller discussion will be given: for the present it may serve to describe consideration as an act or forbearance, or the promise thereof, which is offered by one party to an agreement, and accepted by the other, as an inducement to that other's act or promise. Notwithstanding the difficulties that arise in making proposal and acceptance necessary parts of the general governing proposal conception of Contract, there is no doubt that in practice ceptance. they are the normal and most important elements. When agreement has reached the stage of being embodied in a form of words adopted by both parties, the contents of the document and the consent of the parties are generally (a) There is a similar but slighter difficulty about the use of the word void. A contract when it is fully performed ceases to bave legal effect; it is discharged, but there is something harsh in saying that it becomes void, a term suggestive of inefficacy rather than of completed effect. Hence in the fifth definition I have introduced the word discharged as an alternative. simple and easily proved facts: and the only remaining question (assuming the other requirements of a valid contract to be satisfied) is what the words mean. The acceptance of a proposal might seem at first sight an equally simple fact. But the complexity of human affairs, the looseness of common speech, the mutability of circumstances and of men's intentions, and the exchange of communications between parties at a distance, raise questions which have to be provided for in detail, and some of which are of exceeding difficulty. Special consideration is needful as soon as we get beyond the simplest possible case, that of two parties, such as a buyer and seller of goods, meeting and striking their bargain face to face. We shall now see how these questions are dealt with in English law. and ac tacit. 1. The proposal or acceptance of an agreement may be Proposal communicated by words or by conduct, or partly by the ceptanceone and partly by the other. In so far as a proposal or Express or acceptance is conveyed by words, it is said to be express. In so far as it is conveyed by conduct, it is said to be tacit. It would be as difficult as it is needless to adduce distinct authority for this statement. Cases are of constant occurrence, and naturally in small matters rather than in great ones, where the proposal, or the acceptance, or both, are signified not by words but by acts. For example, the passenger who steps into a ferry-boat thereby requests the ferryman to take him over for the usual fare, and the ferryman accepts this proposal by putting off. tion of A promise made in this way is commonly said to be Distincimplied but this tends to obscure the distinction of the tacit conreal though tacit promise in these cases from the fictitious tracts from quasipromise "implied by law," as we shall immediately see, in contracts. certain cases where there is no real contract at all, but an obligation quasi ex contractu, and in others where definite duties are annexed by rules of law to special kinds of contracts or to relations arising out of them. Sometimes, no doubt, it is difficult to draw the line. "Where a relation exists between two parties which involves the performance |