definition, of course, it was convenient to keep only one. The distinction between "agreement" and "contract," by which "contract" means only a valid and enforceable agreement, is new: a void contract is according to this definition a contradiction in terms, but the phrase is to be found often enough in our books. The distinction is new, and in itself quite arbitrary; but it answers to the classical difference in Latin between contractus and pactum, which perhaps suggested it. In any case the innovation seems to us a clear improvement, for it makes the legal meaning of the words more precise and convenient, without doing any violence to former, or even to popular usage, and as a rule we shall adopt it (a). The subject of Consideration is reserved for a separate chapter. The distinction between roid and voidable transactions, here expressed in the form of a definition, is one of the most fundamental and important in the law, though a great deal of laxity is to be found even in modern books in the use of the two words. An agreement or other act which is roid has from the beginning no legal effect at all, save in so far as it may subject the parties to penal consequences in any case where it is made void by some special prohibitive law which also imposes a penalty. No person's rights can be affected by it, whether he be a party or a stranger. A voidable act, on the contrary, will have all its proper legal effects unless and until it is disputed and pronounced invalid. And it can be disputed only by certain persons and under certain conditions. It is needless to say more in general terms of this distinction, which we shall find amply illustrated in almost every branch of the subject. We must note, however, that the language of subsection (g) is not exactly applicable to English law, For in the chapter on Agreements of Imperfect Obligation we shall see that there are many agreements which, although they cannot be enforced, yet are by no means to be spoken of as void, inasmuch as they are otherwise recognized by law, and have distinct legal consequences. (a) The distinction might be exhibited thus in Savigny's terminology: Agreement =Vertrag, wo durch eine Obligation entstehen soll. Contract Vertrag, wodurch eine klagbare Obligation entsteht. Applications; Revocation of proposal. Cooke r. The main principle being fixed that a contract is constituted by the acceptance of a proposal, it remains to note the applications of it in detail, which for the most part are obvious corollaries, though considerable difficulties arise in some particular instances. 1. A proposal may be revoked at any time before acceptance, but not afterwards. For before acceptance there is no agreement, and therefore the proposer cannot be bound to anything (a). So that even if he purports to give a definite time for acceptance, he is free to withdraw his proposal before that time has elapsed. He is not bound to keep it open unless there is a distinct collateral contract to that effect, founded on a distinct consideration. If in the morning A. offers goods to B. for sale at a certain price, and gives B. till four o'clock in the afternoon to make up his mind, yet A. may sell the goods to C. at any time before four o'clock, so long as B. has not accepted his offer. But if B. were to say to A.: "At present I do not know, but the refusal of your offer for a definite time is worth something to me; I will give you so much to keep it open till four o'clock" (or even, it is submitted, "If you will keep it open till four o'clock, then, in the event of my taking the goods, I will add so much to the price") (b), and A. were to agree to this, then A. would be bound to keep his offer open, not by the offer itself, but by the subsequent independent contract. This doctrine was established by Cooke v. Oxley (c), and followed in Routledge v. Grant (d) and other cases. However, certain criticisms, not very easy to understand, have been made upon Cooke v. Orley; with regard to these it is enough to direct the reader to Mr. Benjamin's observations (e), with every word of which we agree. It is different in the modern civil law. There a promise to keep a proposal open for a definite time is treated as binding, as indeed there appears no reason why it should not be in a system to) (a) The same rule applies to a proposal to vary an existing agreement; Gilkes v. Leonino, 4 C. B. N. S. 485. (b) See G. N. Ry. Co. v. Witham, L. R. 9 C. P. 16: combining this with the principle of Hochster v. De la Tour, 2 E. & B. 678, 22 L. J. Q. B. 455, and Frost v. Knight, L. R. 7 Ex. 111, we get the result in the text. (c) 3 T. R. 653; affd. in Ex. Ch., see note. (d) 4 Bing. 653. (e) Benjamin on Sale, 51-55, which the doctrine of consideration is foreign: nay, there is held in effect to be in every proposal an implied promise to keep it open for a reasonable time (a). In our own law the effect of naming a definite time in the proposal is simply negative and for the proposer's benefit: that is, it operates as a warning that an acceptance will not be received after the lapse of the time named. In fact the proposal so limited comes to an end of itself at the end of that time, and there is nothing for the other party to accept. This leads us to the next rule, namely :— 2. The proposer may prescribe a certain time within which Deterthe proposal is to be accepted, and the manner and form in which mination of it is to be accepted. If no time is prescribed, the acceptance lapse of proposal by must be communicated to him within a reasonable time. In prescribed neither case is the acceptor answerable for any delay which is the able time. consequence of the proposer's own default. If no manner or form is prescribed, the acceptance may be communicated in any reasonable or usual manner or form. This is almost self-evident, standing alone; we shall see the importance of not losing sight of it in dealing with certain difficulties to be presently considered. Note, however, that though the proposer may prescribe a form or time of acceptance, he cannot prescribe a form or time of refusal, so as to fix a contract on the other party if he does not refuse in some particular way or within some particular time (b). Among other conditions, the proposal may prescribe a particular place for acceptance, and if it does so, an acceptance elsewhere will not do (c). 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 (d); not that it has 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 (a) Vangercw, Pand. § 603 (3, 253); see L. R. 5 Ex. 337, n. (b) Felthouse v. Bindley, 11 C. B. N. S. 869, 875, 31 L. J. C. P. 204. (c) Eliason v. Henshaw (Sup. Ct. U.S.), 4 Wheat. 225, Langdell, Sel. (d) Baily's ca., 5 Eq. 428, 3 Ch. or reason Revocation of proposal must be 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 (a). 3. A proposal is revoked only when the intention to revoke it is communicated to the other party. Therefore a revocation communicated after acceptance, though determined upon before communi- the acceptance, is too late. cated before row. Putting out of the question for the present any difficulties that acceptance. may arise as to what is in point of law the true date of the acceptance, it is clear from the cases presently to be mentioned Civilians that this is the rule of the common law. The civilians differ on differ: the point. Pothier lays down a directly contrary rule in a wellcontra Pothier,sic known passage (Contr. de Vente, § 32) which we need not repeat, Vange- as it is given with slight abridgment by Mr. Benjamin (On Sale, 57-8.) He 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 (b). 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. Far more satisfactory is Vangerow (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 communi (a) 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, and see p. 15 infra. (b) So Mr. Leake justly remarks (On Contracts, 20, n.). eated 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. These principles, it seems to us, are entirely right if tested by common sense and convenience, and are in accordance with the authorities of the common law when rightly understood. 4. The communication of an acceptance or of its revocation is Acceptsubject to the same rules as the communication of a proposal or of its revocation. This class is one of ance or revocation thereof follows same rules Difficulties as to con corres pondence. This seems obvious enough, yet it is very possible to overlook as proposal. it, and more distinct attention to it might perhaps have saved the law from some of the complication and difficulty which at tracts by present attend a particular class of cases. great and increasing importance-namely, where a contract is entered into by correspondence between persons at a distance. The proposer is bound, of course, from the date of acceptance. The great question is, what is for this purpose the date of acceptance? And it has been assumed, without any real necessity, that some one moment must be fixed at which the contract is made absolute for all purposes: hence the difficulties that have been found in stating a satisfactory rule. As far as proposition 3 is concerned it is plainly just and expedient that the acceptance should date from the time when the party 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 disAnd it is regard any revocation that reaches him afterwards. very natural, and in fact there is a strong tendency in the English authorities, to conclude that at this point the contract is wholly irrevocable and absolute; so that on the one hand the acceptor remains bound, though he should afterwards despatch a revocation which arrives with or even before the acceptance; and on the other hand the proposer is bound, though, without any default of his own, the acceptance should never reach him. But these consequences contradict the propositions 2 and 4, and are against all 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 is |