desires time to consider, and A. assents. Then A. meets with C., they talk of the price of iron, and C. offers A. a better price than he has asked from B., and they strike a bargain for a hundred tons. Then B. returns, and in ignorance of A.'s dealings with C. accepts A.'s offer formerly made to him. Here are manifestly two good contracts. A. is bound to deliver 100 tons of iron to B. at one price, and 100 tons to C. at another. And if A. has in fact only one hundred tons, and was thinking only of those hundred tons, it makes no difference. He would be equally bound to B. and C. if he had none. He must deliver them iron of the quantity and quality contracted for, or pay damages. How then will the case stand if, other circumstances being the same, the dealing is for specific goods, or for a house? Here it is impossible that A. should perform his agreement with both B. and C., and therefore they cannot both make him perform it; but that is no reason why he should not be answerable to both of them. The one who does not get performance may have damages. It remains to ask which of them shall have the option of claiming performance, if the contract is otherwise such that its performance can be specifically enforced. The most convenient solution would seem to be that he whose acceptance is first in point of time should have the priority: for the preference must be given to some one, and the first acceptance makes the first complete contract. There is no reason for making the contract relate back for this purpose to the date of the proposal. This is consistent with everything that was decided, if not with everything that was said, in Dickinson v. Dodds (k). It is right to add that Cooke v. Oxley (1) may be so read as to support the opinion that a tacit revocation need not be communicated at all. But the apparent inference to (k) 2 Ch. D. 463. Note that the sait was for specific performance, and cp. Langdell, Summary, 245–6, and Anson, 28-30. Opinions of Continental writers. this effect is expressly rejected in Stevenson v. MacLean (m), and therefore need not be discussed here. Roman law supplies no direct answer to questions of this class, and not much that tends to suggest one. Modern civilians have differed greatly in their opinions. Pothier lays down a rule directly contrary to that now settled in our law. The passage (Contr. de Vente, § 32) is well known, and may also be seen, but slightly abridged, in Mr. Benjamin's work on Sale (p. 73). Pothier 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 (n). 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. The same or a closely similar view has been taken by some recent German writers of repute (o). 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 communicated is in point of law no revocation at all. In this respect the (m) 5 Q. B. D. at p. 351. (0) Windscheid, Pand. § 307, cit- the right acquired on this theory by the acceptor without notice of revocation das negative Vertragsinteresse." So too Bell, Principles of the Law of Scotland, § 73. revocation of a proposal or acceptance must be governed by the same rules as the proposal or acceptance itself. Limits of Acceptance or of its Revocation. ance or must be An acceptance must be communicated to the proposer Acceptto be effectual, and the communication of an acceptance or an revocation of its revocation is subject to the same rules as the com- thereof munication of a proposal or of its revocation: provided communithat any means of communication prescribed or authorized cated like proposal, by the proposer are as against him deemed sufficient. subject to If the proposer prescribes or authorizes the despatch of proviso an acceptance by means wholly or partly beyond the authorized sender's control, such as the public post or telegraph, then an acceptance so despatched that means proposer, and in particular de by Pr (a) is complete as against the proposer from the time of spatch of its despatch out of the sender's control; answer by post, are (b) is effectual notwithstanding any miscarriage or delay deemed in its transmission happening after such despatch. sufficient. rule of It should seem obvious that, as a matter of general prin- General ciple, an uncommunicated mental assent cannot make a communi. contract. Yet as lately as 1877 it was found needful to cation. reassert this principle in the House of Lords (p). It is true that the proposer may dispense with actual communication to this extent, that by prescribing a particular manner of communication he may preclude himself from afterwards showing that it was not in fact sufficient. In Lord Blackburn's words, "when an offer is made to another party, and in that offer there is a request express or implied that he must signify his acceptance by doing some particular thing, then as soon as he does that thing there is a complete contract" (q). The most important application of this (p) Brogden v. Metropolitan Ry. Co., 2 App. Ca., at p. 688 (Lord Selborne), at p. 691 (Lord Blackburn), and at p. 697 (Lord Gordon). The judgments in the Court below which gave rise to these remarks are not reported. (2) Yet would this hold if the prescribed act were not of a kind fitted to make the acceptor's intention known to the proposer? Agreement to exception will come before us immediately. But it is not true "that a simple acceptance in your own mind, without any intimation to the other party, and expressed by a mere private act, such as putting a letter into a drawer," will, as a rule, serve to conclude a contract. It was supposed at one time that the Companies Act, takeshares 1862, had introduced a different rule in the case of agreenot excep- ments to take shares, and that an applicant for shares tionally treated. became a shareholder by mere allotment and registration, though nothing were done to give notice to him; but it is now settled that this is not so; the ordinary rules as to the formation of contracts must be applied (r). Bearing in mind what these rules are for simple cases, let to more complex ones. Difficulties as to contracts us proceed The proviso above given and the explanation following it are intended to express the rules which, after much by corre- uncertainty, have at length been settled by our Courts spondence. as to contracts entered into by correspondence between persons at a distance. Before dealing with authorities. it may be useful to show the general nature of the difficulties that arise. We start with the principle that the proposer is bound from the date of acceptance. Then we have to consider what is for this purpose the date of acceptance, a question of some perplexity, and much vexed in the books. It appears just and expedient, as concerning the accepting party's rights, that the acceptance should date from the time when he 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 disregard any revocation that reaches him afterwards. Hence the conclusion is suggested that at this point the contract is (r) Gunn's case, 3 Ch. 40. There need not be formal notice of allotment; acting towards the applicant on the footing that he has got the shares, e. g. appointing him to an office under the company for which the shares are a necessary qualification, is enough. This of course is quite in accordance with general principles. Richards v. Home Assurance Association, L. R. 6 C. P. 591. irrevocable and absolute. But are we to hold it absolute for all purposes, so that on the one hand the acceptor shall remain bound, though he should afterwards despatch a revocation which arrives with or even before the acceptance; and on the other hand, the proposer shall be bound, though, without any default of his own, the acceptance never reach him? These consequences seem, in turn, against 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 should on principle be in time if it reaches him together with or before the original acceptance, whatever the relative times of their despatch. On the other hand, it seems not reasonable that he should be bound by an acceptance that he never receives. He has no means of making sure whether or when his proposal has arrived (s), or whether it is or not accepted, for the other party need not answer at all. The acceptor might at least as reasonably be left to take the risk of his acceptance miscarrying, for in practice he can easily take means, if he think fit, to provide against this. English doctrine of common In the judicial treatment of these questions, however, Theories considerations of a different kind have prevailed. It has implied in been generally assumed that there must be some one cases: moment at which the consent of the parties is to be deemed complete, and the contract absolute as against both of them, agency of postand for all purposes (as if it were a question of some mys- office. terious virtue inherent in the nature of the transaction, and not of positive rules of law); and further, a peculiar character has been attributed to the post-office as a medium of communication. In some of the cases it is said that the acceptance of a proposal by post completes the contract as soon as the letter is despatched, because the post-office is the common agent of both parties. Doubtless the postmaster-general is the agent of every one who sends a letter, (s) The German post-office, however, undertakes (if required at the time of posting) to furnish the sender P. of any letter with an official certifi- |