P. 242, note (1), Oriental Financial Corporation v. Overend, Gurney & Co., for L. R. 7 H. L. 318, read "L. R. 7 H. L. 348." 253, note (0), Chambers v. Manchester, &c. Ry. Co., for 33 L. J. C. P. 281, 282, 332, Holman v. Johnson, for Cowp., read "1 Cowp." 330, note (2), Haines v. Busk, for 5 Taunt. 821, read "5 Taunt. 521." 452, note (x), for Crofton v. Davies, read "Cropton v. Davies." 495, note (g), Rice v. Gordon, for 11 Beav. 465, read "11 Beav. 265." 495, note (k), Way v. Hearn, for 33 L. J. C. P. read "32 L. J. C. P." 504, note (a), Heywood v. Mallalieu, for 25 Ch. read " 25 Ch. D." 611, note (e), Humphreys v. Green, for 11 Q. B. D. read "10 683, line 2, Smith v. Lindo, for 5 C. B. N. S. read "4 C. B. N. S." 696, note (b), Piggott v. Stratton, for 1 D. J. S. read "1 D. F. J." I take this opportunity of calling the attention of historical students of the Common Law who read German to two articles by Mr. Ernst Schuster, a German resident in London, in Busch's Archiv für Handelsund Wechselrecht-"Der Vertragsschluss nach Englischem Recht," vol. 45, p. 317, and "Die Consideration als Gültigkeitsbedingung des Vertrags in Englischen Recht," vol 46, p. 111. These papers, though primarily designed to make the rules of English law intelligible to German lawyers and men of business, are thoroughly worked out from first-hand study, and contain much valuable independent criticism. REFERENCES AND ABBREVIATIONS. Benjamin on Sale. Third edition, 1884. Dart's Vendors and Purchasers. (Dart, V. & P.) Fifth edition, 1876. I. C. A. means the Indian Contract Act (IX. of 1872). Law Journal. Always cited by the number of the vol. in the New Series. Law Reports (1865-75). The Chancery Appeal and Equity cases are cited as "Ch." and "Eq." simply. Law Reports (1875-). The Scotch appeals to the House of Lords and appeals to the Judicial Committee of the Privy Council reported in the Appeal Cases series, if not expressly mentioned to be such in the context, are distinguished by the additions (Sc.) and (J. C.) respectively. Lindley on the Law of Partnership. (Sometimes cited by the author's name alone.) Fourth edition, 1878. Saunders' Reports, notes to, by the late Serjeant Williams (Wms. Saund.) Ed. 1871. Cited by the paging of that edition, not the pages of Saunders. Savigny, System des heutigen römischen Rechts (Savigny, or Sav. Syst.). Berlin, 1840-1849. Savigny, Das Obligationenrecht (Sav. Obl.). Berlin, 1851—3. Smith's Leading Cases (Sm. L. C.). As a rule the seventh edition, 1876, has still been referred to. Vangerow, Lehrbuch der Pandekten (Vangerow, Pand.), Seventh edition. Marburg and Leipzig, 1863. Pothier's and Story's works are cited by the consecutive sections. Savigny and Vangerow are cited indifferently by volume and page, or by the consecutive sections, often by both. PRINCIPLES OF CONTRACT. CHAPTER I. AGREEMENT, PROPOSAL, AND ACCEPTANCE. OUR first business is to separate and analyse the elements which, generally speaking, must concur in the formation of a contract. A series of statements in the form of definitions, though necessarily imperfect, may help to clear the way. 1. Every agreement and promise enforceable by law is Contract. a contract. ment. 2. An agreement is an act in the law whereby two or Agreemore persons declare their consent as to any act or thing to be done or forborne by some or one of those persons for the use of the others or other of them. 3. Such declaration may consist of (a) the concurrence of the parties in a spoken or (b) a proposal made by some or one of them, and Expression of 4. The declaration by any person of his intention to do Promise. or forbear from anything at the request or for the use of another is called a promise. 、 * P. B Void agreement. Voidable contract. Nature of consent. 5. An agreement which has no legal effect is said to be An agreement which ceases to have legal effect is said to become void or to be discharged. void. 6. An agreement is said to be a voidable contract if it 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. We proceed to develop and explain these statements, so far as appears convenient, at the outset of the work. 1. Definition of Agreement.-The first and most essential and scope element of an agreement is the consent of the parties. There must be the meeting of two minds in one and the same intention. But in order that their consent may make an agreement of which the law can take notice, other conditions must be fulfilled. The agreement must be, in our old English phrase, an act in the law: that is, it must be on the face of the matter capable of having legal effects. It must be concerned with duties and rights which can be dealt with by a court of justice. And it must be the intention of the parties that the matter in hand shall, if necessary, be so dealt with, or at least they must not have the contrary intention. An appointment between two friends to go out for a walk or to read a book together is not an agreement in the legal sense: for it is not meant to produce, nor does it produce, any new legal duty or right, or any change in existing ones (@). Again, (a) Nothing but the absence of intention seems to prevent a contract from arising in many cases of this kind. A. asks B. to dinner and B. accepts. Here is proposal and acceptance of something to be done by B. at A.'s request, namely, coming to A.'s house at the appointed time, and the trouble and expense of doing this are ample consideration for A.'s promise to provide a dinner. Why is A. not legally bound to have meat and drink ready for B., so that if A. had forgotten his invi tation and gone elsewhere B. should have a right of action? Only because no legal bond was intended by the parties. It might possibly be said that these are really cases of contract, and that only social usage and the trifling amount of pecuniary interest involved keep them out of courts of justice. But I think Savigny's view, which is here adopted, is the better one. There is not a contract which it would be ridiculous to enforce, but the original proposal is not the proposal of a contract. there must not only be an act in the law, but an act which determines duties and rights of the parties. A consent or declaration of several persons is not an agreement if it affects only other people's rights, or even if it affects rights or duties of the persons whose consent is expressed without creating any obligation between them. The verdict of a jury or the judgment of a full Court is a concurrent declaration of several persons affecting legal rights; but it is not an agreement, since the rights affected are not those of the judges or jurymen. If a fund is held by the trustees of a will to be paid over to the testator's daughter on her marriage with their consent, and they give their consent to her marrying J. S., this declaration of consent affects the duties of the trustees themselves, for it is one of the elements determining their duty to pay over the fund. Still it is not an agreement, for it concerns no duty to be performed by any one of the trustees towards any other of them. There is a common Obligaduty to the beneficiary, but no mutual obligation. By obligation we mean the relation that exists between two persons of whom one has a private and peculiar right (that is, not a merely public or official right, or a right incident to ownership or a permanent family relation) to control the other's actions by calling upon him to do or forbear some particular thing (b). An agreement might be defined, indeed, as purporting to create an obligation. But for the purposes of English law we prefer to say (what is in effect the same) that an agreement contemplates something to be done or forborne by one or more of the parties for the use of the others or other. The word use is familiar in English law-books from early times in such a connexion as this; and I think it mostly if not always imports the creation of a personal claim, Forderung as the German writers call it, on the part of him for whose use a thing is said to be done. (b) Savigny, Syst. i. 338-9; Obl. i. 4, seq. tion. |