PREFACE.

The design of the present undertaking is to supplement rather than to compete with existing works. Notwithstanding all that has been written on the law of Contracts, there seems still, and indeed especially at the present time, to be room and occasion for a Treatise on the general principles which determine the validity and effect of Contracts in their inception.

The development of these principles in English procedure has been in great measure a concurrent one in the courts of law and of equity, and at the same time has led to apparent conflicts on many points, and real conflicts on some points, between the two systems. The lamentable division of jurisdiction, as Lord Westbury called it, which has now come to an end, led unavoidably to a no less lamentable division of exposition in text-books. Writers on the law of Contract have confined themselves (save for very brief passing notices or allusions) to the common-law parts of the subject, leaving the rest to be sought in books on equity jurisprudence, where in the press of other matter there was no room for its adequate treatment, apart from the disadvantages of dealing with it chiefly or wholly with a view to equity procedure, whereby the more general and permanent elements and the broader principles of law on which the rules were in truth founded, were in danger of falling out of sight.

Moreover there are really doubtful questions in the application of the leading principles of Contract, the discussion of which in a connected form has hitherto been almost if not altogether prevented by the foregoing and other reasons.

I have therefore attempted to give in this book, so far as possible, an equal and concurrent view of the doctrines of common law and of equity, and to fix the scope of my subject so that matters of doubt and difficulty might be considered with some fulness.

Among the topics to which this remark especially applies are the following: the power of married women to bind their separate estate by engagements in the nature of contract; the effect of the rules of partnership developed in courts of Equity in limiting the capacity of the governing bodies of companies to bind the corporation by their acts; the assignment of contracts, and covenants running with land; Mistake, and the rectification of instruments; the theory of Misrepresentation as distinct from actual Fraud; the equitable doctrine of Undue Influence; and to some extent the peculiar conditions attached to the remedy of Specific Performance.

I have avoided dwelling on anything practically unimportant or out of date, unless for special reasons, and have sought to be brief in the statement of clear and familiar law. And I have confined myself, where it seemed possible, to citing the latest and best authorities, so as to indicate the means for a complete search without multiplying merely illustrative references. At the same. time I have endeavoured to show distinctly the authority which establishes each separate proposition, so that the reader may not have to look through many cases to find at last that few or none are relevant, but may be directed at once to the decisions material to the very point before him.

The work may be looked upon as being, in its general plan, an endeavour to answer the questions that arise upon the inception of a contract. Is there an agreement concluded in terms? (Ch. I.) Is it made between com

petent parties? (Ch. II.) Does it satisfy the requirements of the law as to form (if any there be for the particular kind of contract) (Ch. III.) and consideration? (Ch. IV.) Who may now, or hereafter, sue or be sued upon it? (Ch. V.) So far as to what may be called the first elements. We have further to ask if there is nothing in the matter of the agreement to interfere with its validity: whether it be unlawful (Ch. VI.) or impossible (Ch. VII.) Again, the question may arise whether there is nothing to prevent the expressed consent of the parties from having its full effect. By reason of mistake (Ch. VIII.) the consent may be only apparent, or a true consent may be wrongly expressed; or by reason of misrepresentation (Ch. IX.), fraud (Ch. X.), coercion or undue influence (Ch. XI.), the consent of one of the parties may not be binding upon him. Finally there may be a question whether we have to deal with one of those curious and more or less anomalous cases where there is an agreement neither void nor voidable, for some purposes recognized and having legal consequences, yet not directly enforceable (Ch. XII.) Questions arising on the performance or discharge of contracts are not considered except incidentally.

Some digressions have been deliberately admitted, partly for reasons of practical convenience, partly on account of the subjects having a special interest on historical or other grounds. In one or two instances I have sacrificed scientific arrangement for the sake of keeping things in the place where I thought a reader would expect to find them: thus the rules as to the rescission of voidable contracts in Ch. X. should strictly have formed a separate chapter.

The Indian Contract Act has been almost constantly kept in view. Most of the sections relevant to the topics here considered will be found cited in full either in the text or in the notes. Possibly this may be not without practical use to some of my readers: but apart from this, the Contract Act deserves, as it appears to me, more

attention from English lawyers than to my knowledge it has yet received. It is a most instructive example of what can be done to consolidate and simplify English case-law, and shows better than any discussion can do what are the real advantages of codification, the real difficulties to be overcome, and the most likely means of overcoming them.

I have not attempted to collect American authorities : the ever growing bulk of English reports alone is already formidable enough to deal with. But some account has been given of a certain number of decisions of the Supreme Court, selected as being recent or otherwise of marked importance.

Considering the amount of coincidence (if not more than coincidence) between English and Roman law in the main principles of Contract, I have felt justified in making a pretty free use of the Roman law for purposes of illustration and analogy. I have also referred at times to modern Continental Codes, especially where it seemed that light might be thrown on a topic of special legislation, or of what is called "the policy of the law," by extending the range of observation. However no systematic comparison has been undertaken. On points of Roman law (and to a considerable extent, indeed, on the principles it has in common with our own), I have consulted and generally followed Savigny's great work.

My obligations to foregoing English writers are acknowledged to the best of my power in their proper places in the text. Here I must express my thanks to my friend Mr. W. R. Kennedy, of Lincoln's Inn, for valuable suggestions and contributions, especially on the subject of Ch. VII.; and in like manner to my friend Mr. G. H. Blakesley, of Lincoln's Inn, especially as to Ch. X. F. P.

5, NEW SQUARE, LINCOLN'S INN,

December, 1875.