proposal was duly received [surely not if, as in Adams v. Lindsell (a), it was delayed by his own negligence?] In the event of an acceptance despatched in due time not arriving till after such time as aforesaid, no contract is concluded if the proposer has given notice of revocation in the meantime, or gives it forthwith (ohne Verzug) on receiving the acceptance. [The clauses marked † seem only to say in a rather elaborate way that a proposal is revoked by the lapse of a reasonable time without acceptance; s. 319, however, tacitly involves the important proposition-now negatived, as we saw in the text, by English lawthat an answer which never arrives, whether sent by post or otherwise, cannot conclude a contract.] 320. When the revocation of a proposal reaches the other party before or at the same time with the proposal itself, the proposal is deemed null and void (ist für nicht geschehen zu erachten). In like manner the acceptance is deemed null and void if the revocation has been communicated to the proposer before the acceptance or at the same time with it. 321. Where an agreement has been concluded between parties at a distance, the conclusion of the agreement is to be dated from the time at which the communication of the acceptance was delivered for despatch [out of the acceptor's control ?] (in welchem die Erklärung der Annahme Behufs der Absendung abgegeben ist). 322. An acceptance subject to conditions or reservations is equivalent to a refusal coupled with a new proposal. The subject is dealt with by the Swiss Federal Code of Obligations (in force since January 1, 1883), on the same lines, but rather more fully, in Articles 1-8. We subjoin the French text. I. DES OBLIGATIONS RÉSULTANT D'UN CONTRAT. De la conclusion des contrats. Article premier. Il n'y a contrat que si les parties ont manifesté d'une manière concordante leur volonté réciproque. Cette manifestation peut être expresse ou tacite. 2. Si les parties se sont mises d'accord sur tous les points essentiels, elles sont présumées avoir entendu s'obliger définitivement, encore qu'elles aient réservé certains points secondaires. A défaut d'accord sur ces points secondaires, le juge les règle en tenant compte de la nature de l'affaire. Il n'est pas préjugé par les présentes dispositions aux règles concernant la forme des contrats. (a) 1 B. & Ald. 681. 3. Toute personne qui propose à une autre la conclusion d'un contrat en lui fixant un délai pour accepter, est liée par son offre jusqu'à l'expiration du délai. Elle est dégagée, si l'acceptation ne lui est pas parvenue avant le terme fixé. 4. Lorsque l'offre a été faite à une personne présente sans fixation d'un délai pour l'acceptation, l'auteur de l'offre est dégagé si l'acceptation n'a pas lieu sur-le-champ. 5. Lorsque l'offre a été faite sans fixation de délai à une personne non présente, l'auteur de l'offre reste lié jusqu'au moment où il peut s'attendre à l'arrivée d'une réponse qui serait expédiée à temps et régulièrement. Il a le droit d'admettre, pour le calcul à établir, que le destinataire a reçu l'offre en temps voulu. Si l'acceptation expédiée à temps parvient tardivement à l'auteur de l'offre et que celui-ci entende ne plus être lié, il doit, sous peine de dommages et intérêts, en informer immédiatement l'acceptant. Lorsque, à raison de la nature spéciale de l'affaire proposée, l'auteur de l'offre devait ne pas s'attendre à une acceptation expresse, le contrat est réputé conclu si l'offre n'a pas été refusée dans un délai convenable. 6. L'auteur de l'offre n'est pas lié lorsqu'il a fait à cet égard des réserves formelles (par exemple, par l'adjonction des mots : "sans engagement"), ou si son intention de ne pas s'engager résulte nécessairement soit des circonstances, soit de la nature spéciale de l'affaire proposée. 7. L'offre est considérée comme non avenue, si le retrait en parvient à l'autre partie avant l'offre ou en même temps. De même, l'acceptation est considérée comme non avenue, si le retrait en parvient à l'auteur de l'offre avant l'acceptation ou en même temps. 8. Lorsqu'un contrat est intervenu entre absents, il déploie ses effets à dater du moment où l'acceptation a été expédiée. Lorsqu'une acceptation expresse n'est pas nécessaire, les effets du contrat commencent à dater de la réception de l'offre non refusée. The Italian Commercial Code in force since Jan. 1, 1883, takes a Italian somewhat different line, to the following effect (Art. 36):— A contract made by correspondence is complete only if the acceptance is received by the proposer within the time prescribed by him (if any), or otherwise a reasonable time. But the proposer may ratify an overdue acceptance by forthwith giving notice to the proposer. Where the proposal is such that acceptance involves immediate action, and a previous acceptance in terms is not required by the Commercial Code terms of the proposal or by the usage of business, the contract is concluded by the acceptor acting on the proposal. Both proposal and acceptance are revocable before the conclusion of the contract. But if the acceptor has begun to act on the proposal before receiving notice of its revocation, the proposer is liable to him for resulting damage. These rules apply only to bilateral contracts. Unilateral promises become binding as soon as they come to the knowledge of the promisee. Separate estate: Power of alienation. NOTE C. (p. 86). History of the Equitable Doctrine of Separate Estate. When the practice of settling property to the separate use of married women first became common, it seems probable that neither the persons interested nor the conveyancers had any purpose in their minds beyond excluding the husband's marital right so as to secure an independent income to the wife. The various forms of circumlocution employed in all but very modern settlements to express what is now sufficiently expressed by the words "for her separate use," will at once suggest themselves as confirming this. In course of time, however, it was found that by recognizing this separate use the Court of Chancery had in effect created a new kind of equitable ownership, to which it was impossible to hold that the ordinary incidents of ownership did not attach. Powers of disposition were accordingly admitted, including alienation by way of mortgage or specific charge as well as absolutely; and we find it laid down in general terms about a century ago that a feme covert acting with respect to her separate property is competent to act as a feme sole (a). Nevertheless the equitable ownership of real estate by means of the separate use, carrying as incidents the same full right of disposition by deed or will that a feme sole would have, was fully recognized only by much later decisions (b). From a mortgage or specific charge on separate property to a formal contract under seal, such as if made by a person sui iuris would even then have bound real estate in the (a) Hulme v. Tenant, 1 Wh. & T. L. C. In Peacock v. Monk, 2 Ves. Sr. 190, there referred to by Lord Thurlow, no such general rule is expressed. As to the recognition of separate property by Courts of Common Law, see Duncan v. Cashin, L. R. 10 C. P. 551. (b) Taylor v. Meads, 4 D. J. S. 597; Pride v. Bubb, 7 Ch. 64. hands of his heir, we may suppose the transition did not seem violent; and instruments expressing such a contract to be entered into by a married woman came to be regarded as in some way binding on any separate property she might have. In what way Power to they were binding was not settled for a good while, for reasons bind the best stated in the words of V.-C. Kindersley's judgment in Vaughan estate by separate v. Vanderstegen (a). ley. formal in"The Courts at first ventured so far as to hold that if" a married struments: historical woman "made a contract for payment of money by a written inview given strument with a certain degree of formality and solemnity, as by a by V.-C. bond under her hand and seal, in that case the property settled to Kindersher separate use should be made liable to the payment of it; and this principle (if principle it could be called) was subsequently extended to instruments of a less formal character, as a bill of exchange or promissory note, and ultimately to any written instrument. But still the Courts refused to extend it to a verbal agreement or other assumpsit, and even as to those more formal engagements which they did hold to be payable out of the separate estate, they struggled against the notion of their being regarded as debts, and for that purpose they invented reasons to justify the application of the separate estate to their payment without recognizing them as debts or letting in verbal contracts. One suggestion was that the act of disposing of or charging separate estate by a married woman was in reality the execution of a power of appointment (b), and that a formal and solemn instrument in writing would operate as an execution of a power, which a mere assumpsit would not do. . . . Another reason suggested was that as a married woman has the right and capacity specifically to charge her separate estate, the execution by her of a formal written instrument must be held to indicate an intention to create such special charge, because otherwise it could not have any operation." now un tenable. Both these suggestions are on the later authorities untenable, as Earlier indeed V.-C. Kindersley then (1853) judged them to be (c); the doctrines theory of specific charge was revived in the later case of Shattock v. Shattock (d), but this must be considered as overruled (e). One or two other suggestions--such as that a married woman should have only such power of dealing with her separate estate as might be (a) 2 Drew. 165, 180. (b) E.g. Duke of Bolton v. Williams, 2 Ves. at p. 149. (e) Cp. Murray v. Barlee, 3 M. & K. 209, where the arguments show the history of the doctrine, Owens v. Dickenson, 1 Cr. & Ph. 48, 53, where the notions of power and charge are (d) 2 Eq. 182, 193. (e) Robinson v. Pickering, C. A., 16 Ch. D. 660. Judgment L.J. in expressly given her by the instrument creating the separate use— were thrown out about the beginning of this century (a), during a period of reaction in which the doctrine was thought to have gone too far, but they did not find acceptance; and the dangers which gave rise to these suggestions were and still are provided against in another way by the device of the restraint on anticipation, a s curious an example as any that English law presents of an anomaly grafted on an anomaly (b). The modern locus classicus on the subject is the judgment of of Turner, Turner, L.J., in Johnson v. Gallagher (c), which had the full Johnson v. approval of the Judicial Committee in London Chartered Bank of Gallagher. Australia v. Lemprière (d). It had already been distinctly followed "General in the Court of Appeal in Chancery as having placed the doctrine upon a sound foundation (e). The general result was to this effect: engagements may bind separate estate without special form, but with proved or presumed intention: rules as to this. "Not only the bonds, bills, and promissory notes of married women, but also their general engagements, may affect their separate estates" (3 D. F. J. 514): and property settled to a married woman's separate use for her life, with power to dispose of it by deed or will, is for this purpose her separate estate (ƒ). These "general engagements are subject to the forms imposed by the Statute of Frauds or otherwise on the contracts made in pari materia by persons competent to contract generally, but not to any other form: there is no general rule that they must be in writing. A "general engagement" is not binding on the separate estate unless it appear" that the engagement was made with reference to and upon the faith or credit of that estate" (3 D. F. J. 515). Whether it was so made is a question of fact to be determined on all the circumstances of the case: it is enough "to show that the married woman intended to contract so as to make herself that is to say, her separate property-the debtor" (L. R. 4 P. C. 597). Such intention is presumed in the case of debts contracted by a married woman living apart from her husband (3 D. F. J. 521). (This tallies with the rule of common law, which in this case excludes even as to necessaries the ordinary presumption of authority to pledge the husband's credit: see notes to Manby v. Scott in 2 Sm. L. C.) (a) See Jones v. Harris, 9 Ves. 486, 497; Parkes v. White, 11 Ves. 209, 220 sqq.; and collection of cases 5 Ves. 17, note. (b) See Lord Cottenham's judgment in Tullett v. Armstrong, 4 M. & Cr. 393, 405. (c) 3 D. F. J. 494, 509 sqq. (e) Picard v. Hine, 5 Ch. 274. 593. |