Definition Next, they must thing is that these persons have a distinct intention, and the for a walk or to read a When two or more persons concur in expressing a common of agree- intention so that rights or duties of those persons are thereby ment: co vers much determined, this is an agreement (). more than contract. (a) The difference is "dass in diesem der Wille auf ein Rechtsverhältniss als Zweck gerichtet ist, in jenen Fällen auf andere Zwecke": the want of an English equivalent for Rechtsverhältniss has made some circumlocution unavoidable in the text. (b) The original words are subjoined, as a perfectly literal translation is not practicable: Vertrag ist die Vereinigung Mehrerer zu einer übereinstimmenden Willenserklä rung, wodurch ihre Rechtsverhältnisse bestimmt werden. Savigny, Syst. § 140 (3, 309). This is one of the things which look very obvious when they are once stated, and the reader may be tempted to think it too obvious to be worth making so much of. But it is just these obvious things which remain hidden or unfruitful till a man of true scientific genius like Savigny sees the importance of bringing them distinctly into the light. The first point that strikes us in this definition is its extreme comprehensiveness. It includes every kind of transaction which affects the rights of the parties and to which the consent of more than one of them is necessary. Not only contract, but every sort of conveyance is covered by it; even a conveyance by way of absolute and immediate gift. (Conveyance, of course, contains something beyond agreement, namely, the transfer of property; all that is meant is that every conveyance includes an agreement.) The last item is at first sight startling, especially as there are certain ways of making a gift (otherwise than by a transfer of property) in which the assent or knowledge of the donee is immaterial (a). But to say that a conveyance by way of gift imports an agreement is only to say that ownership cannot be thrust on a man against his will, and in this form there is nothing strange in the proposition. And in fact there is express authority in our law to show that "it requires the assent of both minds to make a gift, as it does to make a contract" (i.e., when the gift is to take effect by way of a transfer of property to the donee), although the donee's assent is readily presumed, and therefore if money is offered as a gift but not accepted as such, the subsequent agreement of the parties may make it a good loan (b). In like manner the definition now before us includes, of course, gratuitous obligations as well as those made upon valuable consideration. So much as to its general contents. It will now sufficiently appear that its proper place, in this highly general form, is in a work reviewing the whole field of legal conceptions in the most general manner possible (which Savigny's in fact does) (c); and further analysis is required before we can arrive at anything applicable to the special treatment of contract. The central part of this group of ideas is that the parties Further concur in expressing a common intention. Let us see how this is analysis: How is the intention expressed? (a) Savigny, Syst. §160 (4,145-50). The most striking case, however,— the payment of another man's debt is at least doubtful in English law. (b) Hill v. Wilson, 8 Ch. 888, 896; Cp. D. 39, 5. de don. 10; D. 44, 7 de obl, et act. 55. (c) Nothing would be easier than to produce any amount of mistaken criticism on this and other parts of Savigny's work by not attending to its true object and character, which are fully explained by himself in the preface to vol. 1. Mutual communi cation by proposal and acceptance. brought about. They must be assured by mutual communication that a common intention exists, that they mean the same thing in the same sense. But must they then proceed to a further act of expressing this intention? No, there is no need for anything more, unless indeed it is understood between the parties, as in particular cases it may be, that only a subsequent formal expression is to bind them, or unless something more is specially prescribed by law. When the communication is complete, the expression is complete; the expression of the common intention is the sum of the complete communication and nothing else. How then is the communication completed? We only have to look at the way in which bargains are struck or go off in all men's experience. The communications begin with a proposal of certain terms from one party. The other either accepts them, when there is an end of it, or he does not, when again there is an end of it for the time being and so far as that particular proposal is concerned. But it often happens that one or other of the parties, unwilling merely to break off, thereupon suggests something rather different; and thus they may go on trying counter-proposals indefinitely till they either give it up, or one of them makes a proposal which the other can accept as it stands. Thus the conduct of every bargain which is struck is ultimately reducible to the form: Will you do so and so on such and such terms -I will: and the conduct of every attempted bargain which goes off is ultimately reducible to the form: Will you do so and so on such and such terms?—I will not. We can put all this together into a statement of the following kind: The mutual communication which makes up an expression of common intention for the purposes of legal agreement consists of proposal and acceptance. As a matter of historical fact, this comes out in the most striking and definite form that can be in the formal question (proposal) and answer (acceptance) of the Roman Stipulation. Yet this particular analysis of the elements of contract is as a rule comparatively neglected by writers on the civil law, while its importance as a distinct part of the legal theory is fully brought out in our own books. However, the German has apt technical words for dealing with the subject, and in some modern books a good deal of attention is paid to it («). mark of ment is tion. Thus far, however, we are still on general ground. We have Specific not yet got any specific mark of contract, as distinguished from contract: agreement (=Vertrag) in the wide sense. What distinguishes the The agree agreement in a contract from the agreement in any other of the such as to transactions falling within the more general conception, such as give rise to for example a perfect conveyance? The distinction is this: in an obligathe case of a contract something remains to be done by one or by each of the parties, which the other has or will have a right to call upon him to do. Now, in the language of Roman law (which is often adopted by our own, but perhaps cannot strictly be called part of it), there is a technical and appropriate name for this state of things. When one man has a peculiar right (¿.e., not a merely public right, or a right incident to ownership or a permanent family relation) to control another man's actions by calling upon him to do or forbear some particular thing, there is said to be an obligation between them (b). The person whose action is thus controlled is said to be obliged or bound. A contract accordingly is an agreement which produces an obliga- (And is extion (c). In this case, therefore, the common intention expressed pressed by by the parties has this peculiar character, that it contemplates a future performance or performances to which one or each of them. is to be bound. On the side of the party so bound, the expression of this intention is accordingly nothing else than an undertaking to perform the thing he is bound to-in other words, a promise. This is the specific mark of Contract which we sought. That which distinguishes it from the genus Agreement is that the expression of intention is not only constituted by proposal and acceptance, but includes the particular kind of expression which is called a promise. We have as the proper groundwork of contract a promise determined by the acceptance of a proposal. The notion of Agreement in its largest sense, from which we (a) See Vangerow, Pand., § 603 (3, 248, &c., 7th ed.). The terms are Antrag Proposal; Annahme Ac = ceptance. (b) Sav. Syst. 1. 338-9 ; id. Obl. 1. 4, seq. (e) Obligatorischer Vertrag, or (expanding Vertrag according to its a promise. Definition of Indian Contract Act. Remarks set out to this end, has now served our purpose, and we have no more to do with it. The reason for saying this expressly is that we shall henceforth find it convenient, and indeed necessary, to use the word with a more limited meaning. The leading ideas being thus worked out, the next thing would be to embody them in definitions. This part of the work, however, is fortunately done to our hand by the Indian Contract Act 1872, and we are now in a position to appreciate the value of it. The second section of the Act runs thus: "In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the con text (a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal : (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise : (c) The person making the proposal is called the "promisor," the person accepting the proposal is called the "promisee": (d) When, at the desire of the promisor, the promisee, or any other person, has done or abstained from doing, or does, or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise: (e) Every promise, and every set of promises forming the consideration for each other, is an agreement: (f) Promises which form the consideration, or part of the consideration for each other are called reciprocal promises; (g) An agreement not enforceable by law is said to be void: (h) An agreement enforceable by law is a contract : (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract: (1) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable." The language here used is mostly familiar to English law, so on terms that only one or two points call for any remark. In English "" agreebooks"offer" is constantly used as a synonym for "proposal," and perhaps rather the more often of the two. The use of the one or the other word seems a pure matter of taste. For a legislative ment and "contract." |