other thing at his peril." If the condition be that A. shall marry B. by a day, and before the day the obligor himself doth marry her: in this case the condition is broken. But if the obligee marry her before the day, the obligation is discharged (0).

"If a man is bound to me in 207. on condition that he pay me 107., in that case if he tender me the money and I refuse he is altogether excused from the obligation, because the default is on my part who am the obligee" (p).

the Indian It Act

Contract

from

law.

The provisions of the Indian Contract Act on subject of this chapter are given in the Appendix (9). will be seen that simplicity is gained at the expense of departs considerable departure from the principles of English law, English and perhaps also at the expense of definiteness on some points. The most important change is the extension of the principle of Taylor v. Caldwell so as to make it an implied condition in all contracts that the performance shall remain possible.

(0) Shepp. Touchst. 382, 392. And see pp. 393-4.

(p) Brian, C. J. 22 Ed. 4. 26.
(2) Note K.

CHAPTER VIII.

MISTAKE.

reality or

freedom of

consent.

PART I. OF MISTAKE IN GENERAL.

Conditions HITHERTO we have been dealing with perfectly general affecting conditions for the formation or subsistence of a valid contract, and as a consequence of this the rules of law we have had occasion to explain are for the most part collateral or even paramount to the actual intention or belief of the parties. Exceptions to this do certainly occur, but chiefly where (as in great part of the doctrine of Impossibility) the rules are in truth reducible to rules of construction. We have had before us, on the whole, the purely objective conditions of contract; the questions which must be answered before the law can so much as think of giving effect to the consent of the parties. We now come to a set of conditions which by comparison with the foregoing ones may fairly be called subjective. The consent of the parties is now the central point of the inquiry, and our task is to examine how the legal validity of an agreement is affected when the consent or apparent consent is determined by certain causes.

The existence of consent is ascertained in the first instance by the rules and principles set forth in the first chapter. When the requirements there stated are satisfied by a proposal duly accepted, there is prima facie a good agreement, and the mutual communications of the parties are taken as the expression of a valid consent. But we still require other conditions in order to make the consent binding on him who gives it, although their absence is in

general not to be assumed, and the party seeking to enforce a contract is not expected to give affirmative proof that they have been satisfied. Not only must there be consent, but the consent must be true, full, and free.

The reality and completeness of consent may be affected (a) by ignorance, that is, by wrong belief or mere absence of information or belief as to some fact material to the agreement. Freedom of consent may be affected by fear or by the consenting party being, though not in bodily or immediate fear, yet so much under the other's power, or in dependence on him, as not to be in a position to exercise his own deliberate choice. Now the results are entirely different according as these states of mind are or are not due to the conduct of the other party (or, in certain cases, to a relation between the parties independent of the particular occasion). When they are so, the legal aspect of the case is altogether changed, and we look to that other party's conduct or position rather than to the state of mind induced by it. We speak not of Mistake induced by Fraud, but of Fraud simply, as a ground for avoiding contracts, though there can be no Fraud where there is no Mistake. We have then the following combinations :

Mistake: difficulties and con

The legal consequences of these states of things are exceedingly various.

A. Mistake does not of itself affect the validity of contracts at all (c). But mistake may be such as to prevent any real agreement from being formed; in which case the agreement is void: or mistake may occur in the expression of a real agreement; in which case, subject to rules of evidence, the mistake can be rectified. There are also rules in the construction of certain species of contracts which are founded on the assumption that the expressions used do not correspond to the real intention. The jurisdiction to rectify instruments on the ground of mistake, as well as the peculiar rules of construction just mentioned, is derived from the Court of Chancery.

B. Contracts induced by misrepresentation are not void. In many cases, and under conditions depending on the nature of the contract, they are voidable at the option of the party misled.

c. Contracts induced by fraud are not void, but voidable at the option of the party deceived.

D, E. Contracts entered into under coercion or undue influence are not void, but voidable at the option of the party on whom coercion or undue influence is exercised.

In almost every branch of the subject there have been differences between the doctrines of the common law and those of equity; the real extent of these differences, however, is often far from easy to ascertain.

These topics have now to be considered in order. And first of Mistake.

The whole topic is surrounded with a great deal of confusion in our books, though on the whole of a verbal kind,

omissions are equivalent to acts for
this purpose in certain exceptional

cases.

(c) Just as fear, merely as a state

of mind in the party, is in itself immaterial. As Fear is to Coercion, so is Mistake to Fraud. Sav. Syst. 3. 116.

and more embarrassing to students than to practitioners. fusions Exactly the same kind of confusion prevailed in the civil the sublaw (whence indeed some of it has passed on to our own) ject. until Savigny cleared it up in the masterly essay which forms the Appendix to the third volume of his System. The principles there established by him have been fully adopted by later writers (d), and appear to be in the main applicable to the law of England.

The difficulties which have arisen as well with us as in the civil law may be accounted for under the following heads:

(1.) Confusion of proximate with remote causes of legal consequences: in other words, of cases where mistake has legal results of its own with cases where it determines the presence of some other condition from which legal results follow, or the absence of some other condition from which legal results would follow, or even where it is absolutely irrelevant.

(2.) The assertion of propositions as general rules which ought to be taken with reference only to particular effects of mistake in particular classes of cases. Such are the maxim Non videntur qui errant consentire and other similar expressions, and to some extent the distinction between ignorance of fact and of law (e).

(3.) Omission to assign an exact meaning to the term "ignorance of law" in those cases where the distinction between ignorance of law and ignorance of fact is material (the true rule, affirmed for the Roman law by Savigny, and in a slightly different form for English law by Lord Westbury (ƒ), being that "ignorance of law" means only

(d) Some of his conjectural dealings with specific anomalies in the Roman texts are at least daring, but this does not concern English students. Vangerow gives the general doctrine (Pand. § 83, 1. 116 sqq.) and its special application to contract (ib. § 604, 3. 275) in a

compact and useful form.

(e) See Savigny's Appendix, Nos. VII., VIII. Syst. 3. 342, 344.

(f) Cooper v. Phibbs, L. R. 2 H. L. at p. 170: to which the dicta in the later case of Earl Beauchamp v. Winn, L. R. 6 H. L. 223, really add little or nothing.