a slave to formulas, a disposition to push analytical curiosity even to paradox is a fault on the right side, if it be a fault, in the teacher. The law of contract is in truth nothing else than the endeavour of the sovereign power, a more or less imperfect one by the nature of the case, to establish a positive sanction for the expectation of good faith which has grown up in the mutual dealings of men of average right-mindedness. To regard the obligation of a contract as if the law deliberately gave the promisor the choice between performing his agreement and paying damages is to overlook the real origin and purpose of the law. The most popular description of a contract that can be given is also the most exact one, namely that it is a promise or set of promises which the law will enforce. The specific mark of contract is the creation of a right, not to a thing, but to another man's conduct in the future. This is apt to be obscured in common cases, but is easily seen to be true. Suppose that A. agrees to sell to B. a thing of which not he but C. is the true owner. C. gives the thing to B. Here, though B. has got the thing he wanted, and on better terms than he expected, A. has not kept his promise; and, if the other requisites of a lawful contract were present as between himself and B., he has broken his contract. The primary questions, then, of the law of contract are first, what is a promise? and next, what promises are enforceable? To examine these questions is the object of the present book. The importance and difficulty of the first of them depends on the fact that men can justly rely on one another's intentions, and courts of justice hold them bound to their fulfilment, only when they have been expressed in a manner that would convey to an indifferent person, reasonable and reasonably competent in the matter in hand, the sense in which the expression is relied on by the party claiming satisfaction. Judges and juries stand in the place of this supposed indifferent person, and have to be convinced that the dealings in the particular case contained or amounted to the promise alleged to have been made and relied upon. For this purpose the formation of an agreement has to be analysed, and on some points doubts have to be resolved by a more or less arbitrary rule. Our first chapter is occupied with the discussion thus rendered necessary. The rest of the book treats of the conditions on which the law will enforce an agreement made in terms, when its existence in fact is ascertained; conditions which depend for the most part on rules of general policy above the will and control of the parties. A brief summary of the questions presented under these heads may here be given. We consider the capacity of the parties, as limited by status, enlarged by agency, or artificially created by the law of corporations (Ch. II.); the requirements of the law as to form in particular kinds of contracts (Ch. III.), and consideration (Ch. IV.); and upon what persons rights or duties may be conferred by the agreement (Ch. V.). Passing on from these general elements, we have to note in what cases the matter of an agreement, being unlawful (Ch. VI.), or impossible (Ch. VII.), prevents the law from enforcing it. Then we deal with conditions that so affect the consent or apparent consent of the parties as to deprive it wholly or partially of effect. In the cases conventionally classed under the head of Mistake (Ch. VIII.) there is, notwithstanding first appearances, no true consent, or a consent wrongly expressed. In another group of cases the consent of one party may be not binding on him by reason of misrepresentation or fraud (Chaps. IX. and X.), coercion, or undue influence (Ch. XI.). Lastly there are a certain number of anomalous cases, the results, and generally undesigned results, of peculiar legislation or usages, in which an agreement is not an enforceable contract, and yet is something more than a bare promise having no legal effect at all (Ch. XII.). When we come to the construction, performance, and enforcement of contracts questions of another order arise. These are not dealt with in the present work except incidentally, or as they may occur in the debateable ground between rules of law and rules of construction. As the definitions and language of the Indian Contract Act have in some places been less closely followed than in the former editions, it is perhaps desirable to say that my opinion of its value as a study for English lawyers, and of its practical merit as a codification of a large and complex branch of English law, remains unaltered. It will now hardly be thought needful to justify the free use which has been made of illustrations from Roman law. Some few additional ones will be found in the present edition. To Savigny's great work I owe far more both in method and in details than I am able to express here. In addition to my obligations to published writings, which I have endeavoured to acknowledge in their proper places, I have to thank Mr. A. Cohen, Q.C., M.P., and Prof. Bryce, M.P., for the private communication of valuable criticisms on the new matter now offered to my readers, and improved, as I trust, by the timely corrections which those criticisms have suggested. 5, NEW SQUARE, LINCOLN'S INN. Midsummer, 1881. F. P. 1. Express and tacit contracts, and quasi-contracts Proposals to unascertained persons (contracts by offer of reward, &c.) |