ment had been merely for its purchase at a future day, in this CHAP. XII. case also there is a contract, but the right to which it gives rise is not a vested right of ownership in the watch, but an outstanding, or continuing, right in the customer to buy it at the time and for the price agreed upon, with a correlative right in the shopkeeper to receive the price in due course. In the former case, the contract has given rise to rights 'in rem,' and in so doing its force is instantaneously spent. In the latter case, the results of the contract are deferred. It produces merely claims, or rights in personam,' which continue to be operative till the thing agreed upon is performed. contract. We are concerned in the present chapter only with that Obligatory narrower, and more usual, sense of the term contract, which restricts it to signify such a two-sided act as gives rise to rights in personam'.' In this sense it is defined by Savigny as 'the union of several in an accordant expression of will, with the object of creating an obligation between them2;' by an old English authority as 'a speech between two parties whereby something is to be done3;' by Pothier as 'l'espèce de convention qui a pour objet de former quelque engagement;' by M. Ahrens as 'le consentement exprimé de plusieurs personnes à l'effet de créer entre elles un rapport obligatoire sur un objet de droit.' 'When,' said Vice-Chancellor Kindersley, 'both parties will the same thing, and each communicates his will to the other, with a mutual engagement to carry it into effect, then an agreement or contract between the two is constituted.' It is an expression of agreement entered into by several, by which rights 'in personam' are created available against one or more of them. 1 This is by some writers maintained to be the only proper sense of the term, e. g. Vangerow, Pand. i. § 121. An 'Obligatorischer Vertrag' is sometimes also described as a 'Schuldvertrag.' 2 Obligationenrecht, ii. p. 8; cf. Puchta, Inst. iii. p. 89. The Mirrour. Oblig. art. I. Haynes v. Haynes, 1 Dr. & 433. Cours, ii. p. 226. CHAP. XII. It is necessary carefully to distinguish between the twoCause and sided act itself and the results to which it gives rise. The effect. Enforcement. act alone is the contract, the resulting contractual relation is quite a different thing; although, from the want of an appropriate terminology, the two things are sometimes confused with one another in English law. Thus we talk of assigning a contract,' while what is really meant is the assignment of the rights and liabilities which arise out of the contract. In the language of Roman law, the two ideas are distinguished with the utmost precision. The 'contractus' is one thing, the obligatio ex contractu' is another. It has been paradoxically maintained by more than one writer of eminence that no assistance should be given by law to the enforcement of agreements, on the ground that they should be entered into only with those whose honour can be trusted; and the laws of Charondas and of the ancient Indians are stated to have proceeded upon this principle1. The contrary view, embodied in the maxim, pacta sunt servanda, Κύρια εἶναι ὅ τι ἂν ἕτερος ἑτέρῳ ὁμολογήσῃ, even apart from such solemnities as we shall have occasion shortly to mention, has, it is hardly necessary to say, long ago received the adhesion of the civilised world. The State lends its force to assure the performance of those promises of which it thinks fit to take cognisance. This it endeavours to do by putting some sort of pressure upon the will of the promisor, which is therefore indubitably so far subjected to the will of the promisee. The fact that the pressure thus applied may often fail of its effect has given rise to an ingenious inversion of the theory of contract. According Mr. Justice to Mr. Justice Holmes, a contract should be regarded as the taking of a risk.' The promisor undertakes either to perform Holmes' theory. 1 Οὗτοι γὰρ παραχρῆμα κελεύουσι διδόναι καὶ λαμβάνειν, ἐὰν δέ τις πιστεύῃ, μὴ εἶναι δίκην, αὐτὸν γὰρ αἰτίαν εἶναι τῆς ἀδικίας. Stob. Flor., tit. 44. 21; Strabo, xv. p. 709; cf. Arist. Eth. Nic. viii. 15. 6, ix. 1. 9. 2 Demosth. in Euerg. p. 1162. Quid enim tam congruum fidei humanae quam ea quae inter eos placuerunt servare?' Dig. ii. 14, 1. Cf. Puffendorf, De Off. Hominis et Civis, i. c. 9. § 3. or to be liable in damages, whichever may be most convenient CHAP. XII. for him1. But, as the able advocate of this view is compelled to admit, 'when people make contracts they usually contemplate the performance rather than the breach'; nor can it be seriously maintained that the performance of a contract is more optional than that of any other legal duty. Libel or assault, equally with breach of contract, are possible to any one who is prepared to be answerable in damages for the indulgence of a taste for defamation or violence. An obligatory contract is, as we have seen, a species of Savigny's analysis of agreement. But many agreements produce no legal effect a contract. upon the relations of the parties one to another. It will therefore be necessary to enquire more minutely into the characteristics of those consensual acts which are recognised by law as giving rise to obligations. Savigny's analysis of contract, substantially accepted by the majority of the more recent German authorities, is to the following effect. Its constituent elements are, he says: (i) several parties, (ii) an agreement of their wills (sie müssen irgend Etwas, und zwar Beide dasselbe, bestimmt gewollt haben), (iii) a mutual communication of this agreement (sie müssen sich dieser Uebereinstimmung bewusst geworden seyn, das heisst der Wille muss gegenseitig erklärt worden seyn), (iv) an intention to create a legal relation between the parties 2. sensus necessary? In one point only does this analysis seem open to criticism. Is conIs it the case that a contract is not entered into unless the wills of the parties are really at one? Must there be, as Savigny puts it, 'a union of several wills to a single, whole and undivided will?' Or should we not rather say that here, more even than elsewhere, the law looks, not at the will itself, but at the will as voluntarily manifested? When the law enforces contracts, it does so to prevent disappointment of well-founded expectations, which, though they usually arise 1 The Common Law, p. 301. 3 Ib. p. 309. 2 System, iii. p. 308. CHAP. XII. from expressions truly representing intention, yet may occasionally arise otherwise. The older theory. If, for instance, one of the parties to a contract enters into it, and induces the other party to enter into it, resolved all the while not to perform his part under it, the contract will surely be good nevertheless. Not only will the dishonest contractor be unable to set up his original dishonest intent as an excuse for non-performance, but should he, from any change of circumstances, become desirous of enforcing the agreement against the other party, the latter will never be heard to establish, even were he in a position to do so by irrefragable proof, that at the time when the agreement was made the parties to it were not really of one mind. This view, opposed as it is to the current of authority from Javolenus1 to Mr. F. Pollock 2 and Sir W. Anson 3, was originally put forward with some diffidence. It is now restated with more confidence, since English friends who were at first decidedly opposed to it are converts to its truth, while a similar view, after having been, as it seems, for some years academically debated in Germany, has definitely come to the surface in the important work of Professor Leonhard *. Indeed when the question is once raised it is hard to see how it can be supposed that the true consensus of the parties is within the province of law, which must needs regard not the will itself but the will as expressed by one party to the other, taking care only that the expression of will exhibits all those 1 'In omnibus rebus quae dominium transferunt, concurrat oportet affectus ex utraque parte contrahentium.' Dig. xliv. 7. 55; cf. xiv. 1. 3. 2 There must be the meeting of two minds in one and the same intention.' This he admits may be a mere inference of fact which must be proved, and in some cases may not be disproved. Under certain circumstances the law of evidence does not allow a party to show that his intention was not in truth as he made it appear.' Contract, p. 3. 3 Principles of the English law of Contract, p. 2. For a criticism of the 4 characteristics of a true act which have already been enumer- CHAP. XII. ated 1. for dis An adequate discussion of the question whether a contract Reasons can be said to demand for its validity a true union of wills, senting would be out of place in the present work, which can attempt from it. only to indicate the nature of the problem and the general character of the arguments by which one or other solution of it may be supported. The language of systems of positive law upon the point is generally ambiguous, nor is this to be wondered at. The question is practically a new one. The process of giving effect to the free acts of the parties to a contract, rather than to the fact that certain rigidly defined formalities have been complied with, has lasted so long that legal speculation has only recently begun to analyse the free act itself into its two factors of an inner will and an outward expression, and to assign to one or to the other a dominant place in the theory of contract. law. Just as the Romans used, without analysing them, the terms Roman 'velle,'' consensus,' 'sententia 2,' so the modern Codes, though some appear to look rather to the inner will 3, others rather to its outward expression, as a rule employ language which is capable of being interpreted in either direction. In these English The same may be said of the English cases. one constantly meets with such phrases as between him cases. and them there was no consensus of mind,' 'with him they never intended to deal 5; but one also meets with much that supports the view of the question which we venture to hope may ultimately commend itself to the Courts as being at once the most logical and the most favourable to the 1 Supra, p. 90. 2 See Leonhard, i. p. 11; but on the other hand Windscheid and Zitelmann, as cited, supra, p. 99. E. g. the Code Civil, art. 1109; the Codice Civile, arts. 1108, 1110; the Codes of Prussia, §§ 4, 52-56, 75-79; of Saxony, §§ 91, 95, 843, 844; and of Zürich, § 926. E. g. the Austrian Code, art. 871; the Swiss Code fédéral des Obligations art. I. In Cundy v. Lindsay. L. R. 3 App. Ca. 459. |