NOTE K. (p. 389).

Indian Contract Act on Impossible Agreements.

53. When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.

Illustration.

A. and B. contract that B. shall execute certain work for A. for a thousand rupees. B. is ready and willing to execute the work accordingly, but A. prevents him from doing so. The contract is voidable at the option of B., and if he elects to rescind it he is entitled to recover from A. compensation for any loss which he has incurred by its non-performance.

56. An agreement to do an act impossible in itself is void.

A contract to do an act which after the contract is made becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Where one person has promised to do something which he knew, or with reasonable diligence might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

Illustrations.

a. A. agrees with B. to discover treasure by magic. The agreement is void.

b. A. and B. agree to marry each other. Before the time fixed for the marriage A. goes mad. The contract becomes void. c. A. contracts to marry B., being already married to C., and being forbidden by the law to which he is subject to practise polygamy. A. must make compensation to B. for loss caused to her by the non-performance of his promise. d. A. contracts to take in cargo for B. at a foreign port. A.'s government afterwards declares war against the country in which the port is situated. The contract becomes void when war is declared.

e. A. contracts to act at a theatre for six months in consideration of a sum paid in advance by B. On several occasions A. is too ill to act. The contract on these occasions becomes void (a).

(a) A. would apparently be bound under s. 65 to restore a proportionate part of the payment, which in England he would not unless there

P.

were something in the particular contract to show that the payment was intended to be apportioned.

YY

67. If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise the promisor is excused by such neglect or refusal as to any non-performance caused thereby.

Illustration.

A. contracts with B. to repair B.'s house. B. neglects or refuses to point out to A. the place in which his house requires repair. B. is excused for the non-performance of the contract if it is caused by such neglect or refusal. Compare also Chapter III. of the Act "On Contingent Contracts," ss. 31-36.

NOTE L. (p. 451).

Bracton on Fundamental Error.

De acquirendo rerum dominio, fo. 15b, 16:-"Item non valet donatio, nisi tam dantis quam accipientis concurrat mutuus consensus et voluntas, scilicet quod donator habeat animum donandi et donatarius animum recipiendi. Nuda enim donatio (a) et nuda pactio non obligant aliquem nec faciant aliquem debitorem; ut si dicam, Do tibi talem rem, et non habeam (b) animum donandi nec tradendi nec a traditione incipiam, non valet, ut si dicam, Do tibi istam rem, et illam nolim (c) tradere vel (c) sustinere quod illam tecum feras vel arborem datam succidas, non valet donatio quia donator plene non consentit. Item oportet quod non sit error in re data, quia si donator senserit de una re et donatarius de alia, non valet donatio propter dissensum: et idem erit si dissentio fiat in genere, numero, et quantitate . . [Then follow instances.] Et in fine notandum quod si in corpus quod traditur sit consensum, non nocet, quamvis circa causam dandi atque recipiendi sit dissentio: ut si pecuniam numeratam tibi tradam, vel quid tale, et tu eam quasi creditam (d) accipias, constat, ad te proprietatem transire."

(a) ratio MS. Hobhouse, Lincoln's Inn.

(b) habuero MS. Hobh.

(c) MS. Hobh. edd. nolui, et. (d) Traditam ed. 1569, followed without remark by Sir T. Twiss, 1878, who also gives by a misprint, and translates, tali for tale immediately above. (See on the general character of this edition "The Text of Bracton," by Prof. Paul Vinogradoff, Law Quarterly

Review, No. 2.) But creditam is the reading of a majority of good MSS. (Lincoln's Inn, Camb. Univ., Brit. Mus., Bibl. Nat. Paris) and is evidently required by the sense. Bracton is quoting from the Digest, 41. 1. de acq. rer. dom. 36: cp. Güterbock, Henr. de Bracton, p. 85, who assumed, without cause as the MSS. now show, that Bracton misunderstood the passage. The corruption, however, is an easy and early one.

NOTE M. (p. 478).

Mistake in Wills.

Properly speaking, there is no jurisdiction in any court to rectify a will on the ground of mistake. The Court of Probate may reject words of which the testator is proved to have been ignorant, whether inserted by the fraud or by the mistake of the person who prepared the will (a). But it has no power to remedy a mistake" by modifying the language used by the draughtsman and adopted by the testator so as to make it express the supposed intention of the testator.. Such a mode of dealing with wills would lead to the most dangerous consequences, for it would convert the Court of Probate into a court of construction of a very peculiar kind, whose duty it would be to shape the will into conformity with the supposed intentions of the testator" (b). Exactly the same rule has been laid down in equity (c).

The cases in which it is said that the Court will interfere to correct mistakes in wills may be classified thus:

1. Cases purely of construction according to the general intention collected from the will itself (d).

2. Cases of equivocal description, of words used in a special habitual sense (d), or of a wrongly given name which may be corrected by a sufficient description (e).

3. Cases of dipositions made on what is called a false cause (f), i. e., on the mistaken assumption of a particular state of facts existing, except on which assumption the disposition would not have been made. These are analogous to the cases of contract governed by Couturier v. Hastie (g): and just as in those cases, the expressed intention is treated as having been dependent on a condition which has failed.

But the true view of all these cases appears to be not that the words are corrected, but that the intention when clearly ascertained is carried out notwithstanding the apparent difficulty caused by the particular words.

(a) E. g. Morrell v. Morrell, 7 P. D. 68, following Fulton v. Andrew, L. R. 7 H. L. 448.

(b) Harter v. Harter, L. R. 3 P. & D. 11, 21, following Guardhouse v. Blackburn, L. R. 1 P. & D. 109.

(c) Newburgh v. Newburgh, 5 Madd. 364.

(d) See Hawkins on Construction of Wills, Introduction.

(e) Not only an equivocal name may be explained, but a name which applies to only one person may be corrected by a description sufficiently showing that another person is intended: Charter v. Charter, L. R. 7 H. L. 364.

(f) Campbell v. French, 3 Ves.

321.

(9) 5 H. L. C. 673. Supra, pp. 371, 441.

Original statement

in Ham

De Biel.

NOTE N. (p. 485).

On the supposed equitable doctrine of "making representations good."

I shall here endeavour to show in detail, in accordance with what is said in the text, that this much alleged head of equity, in so far mersley v. as it purports to establish any rule or principle apart from the ordinary rules as to the formation of contracts on the one hand, and the principle of estoppel by assertion as to existing facts on the other, is imaginary. In the principal class of cases the "representation" is of an intention to make a provision by will for persons about to marry, in reliance on which representation the marriage takes place. The leading authority is Hammersley v. De Biel (a), decided by the House of Lords in 1845 on appeal from the Court of Chancery. In the Court below (b) Lord Cottenham had laid down the proposition that "a representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of the Court for the purpose of realizing such representation." This appears to be the source of all the similar statements which have since been made (c). Taken with its context, however, it need not mean more than that an exchange of proposals and statements by which the conduct of parties is determined may, as containing all the requisites of a good agreement, amount to a contract, though not to a formal contract. To Mr. Justice Stephen Lord Cottenham's words " appear to mean only that contracts of this nature may be made like other contracts by informal documents, or partly by documents and partly by conduct" (d). And in this sense the rule seems to have been understood in the House of Lords both

in the same and in subsequent cases. Lord Brougham and Lord Campbell speak of the transaction in plain terms as a contract. In the Rolls Court it had also been dealt with on that footing (e). Still more pointed is the remark made by Lord St. Leonards in 1854 :-" Was it merely a representation in Hammersley v. De Biel? quent ex- Was it not a proposal with a condition which, being accepted, was planations in House equivalent to a contract ?" (f). In the terms of the Indian Conof Lords. tract Act, it was the case of a proposal accepted by the performance

Subse

(a) 12 Cl. & F. 45.

(b) 12 Cl. & F. at p. 62.

(c) The turn of language is in itself not novel. It seems to be modelled on that which had long before been used in cases of a different class and for a different pur

pose. See Evans v. Bicknell, 6 Ves. 174.

(d) 5 Ex. D. 299.

(e) Nom. De Beil v. Thomson, 3 Beav. 469.

(f) Maunsell v. Hedges White, 4 H. L. C. at p. 1051; cp. p. 1059.

of the conditions. The statement "I will leave you 10,000l. by my will if you marry A.," if made and acted on as a promise, becomes a binding contract (the marriage undertaken on the faith of that promise being the consideration), and so does a statement in less plain language which amounts to the same thing. On the other hand the statement "If you marry A. I think, as at present advised, I shall leave you 10,000l.," is not a promise and cannot become a contract: neither can it act as an estoppel, for it cannot matter to the other party's interest whether the statement of an intention which may be revoked at any time is at the moment true or false. And the same is true of any less explicit statement which is held on its fair construction to amount to this and no more. Such was the result of the case where Lord St. Leonards put the question just cited (a). And in that case the true doctrine was again distinctly affirmed by Lord Cranworth (b).

"By what words are you to define whether a party has entered into an engagement as distinct from a contract, but which becomes a contract by another person acting upon it? Where a man engages to do a particular thing, he must do it; that is a contract; but where there are no direct words of contract, the question must be, what has he done? He has made a contract, or he has not; in the former case he must fulfil his contract; in the latter there is nothing that he is bound to fulfil." Again: "There is no middle term, no tertium quid between a representation so made as to be effective for such a purpose, and being effective for it, and a contract: they are identical."

He proceeded to comment on Hammersley v. De Biel, and to express a decided opinion that the language there used by Lord Cottenham was not meant to support, and did not support, the notion that words or conduct not amounting to a true contract may create an equitable obligation which has the same effect. "The only distinction I understand is this, that some words which would not amount to a contract in one transaction may possibly be held to do so in another." In the case of Jorden v. Money (c), which came before the House of Lords some months later, it was held, first, that the statement there relied on as binding could not work an estoppel, because it was a statement not of fact but of intention; secondly, that on the evidence it did not amount to a promise, and therefore could not be binding as a contract. Lord St. Leonards dissented both on the evidence and on the law. His opinion seems

(a) Maunsell v. Hedges White, 4 H. L. C. 1039.

(b) At pp. 1055-6.

(c) 5 H. L. C. 185. A pretty full Summary is given by Stephen, J, 5 Ex. D. at p. 301.