reference to revocation either of an offer or of an acceptance. CHAP. XII. The views upon the subject are classified by German writers under three heads. According to the Aeusserungstheorie ' ('Declarationstheorie '), it is enough if an acceptance is posted; according to the 'Empfangstheorie,' the acceptance must reach the offerer; while according to the 'Vernehmungstheorie' ('Rescissions- Agnitions- Recognitionstheorie') it must actually come to his knowledge1. The French authorities are similarly at variance, Merlin for instance holding that the contract is complete on acceptance, Pothier that the acceptance must become known to the other party 2. The English Courts, after a period of uncertainty, seem now to have arrived at conclusions which may be shortly stated as follows: An offer is irrevocable after it has been accepted. Acceptance must be no merely mental act, but a communication to the proposer, which may however be sufficiently made by posting a letter containing it 3, although this letter be delayed, or even fail altogether to reach its destination 5. A revocation of an offer, despatched before, but reaching the acceptor after, the posting of the acceptance comes too late 6. A revocation of an acceptance, posted after, but reaching the proposer simultaneously with, the acceptance, probably prevents the formation of the contract 7.

Our judges, it will be observed, refuse to give effect to

1 Windscheid, Pandekten, § 306; cf. Vangerow, Pand. § 603; Baron, Pand. § 212. For a full and interesting discussion on the several theories of dichiarazione, spedizione, and recezione, see the Report upon the draft Code of Commerce, presented in 1878 to the Italian Senate by the Minister of Justice, Mancini, pp. 115-143.

2 Cf. Dalloz, Obligations,' No. 98.

3 Brogden v. Metropolitan Ry. Co. 2 App. Ca. 691.

Adams v. Lindsell, 1 B. and Ald. 681.

* Dunlop v. Higgins, 1 H. L. Ca. 381; Household Fire and Carriage Co. v. Grant, L. R. 4 Ex. D. 216, where see the dissenting judgment of Bramwell, L. J. Cf. Tayloe v. Merchants Fire Insurance Co., 9 Howard S. Ct. Rep. 390.

Byrne v. Van Tienhoven, 5 C. P. D. 344.

Dunmore v. Alexander, 9 Shaw and Dunlop, 190.

CHAP. XII. the intention of one party unless actually communicated to the other, except that, in the case of an acceptance only, they hold the posting of an acceptance to be equivalent to such communication. They do not attribute a similar effect to the posting of a revocation.

Fraud.

Those foreign jurists who, insisting upon a truly continuing consensus of the parties, think that a proposer may revoke at any moment before the acceptance reaches him, grant to the acceptor of a contract which may thus fail to come into being an indemnity for any loss which he may have sustained by the proposer's culpa in contrahendo 1.'

6

The topic is dealt with in several of the modern codes 2.

3. There are circumstances which, while they do not, like those already mentioned, by negativing the presence of what is often described as a consensus ad idem, but would be more accurately described as a concordant expression of will, render the apparent contract void ab initio, yet operate as flaws in its formation, rendering the resulting obligation voidable at the option of the party who is disadvantaged by it 3.

Where one party has been guilty of fraudulent misrepresentation or concealment, he is not permitted to hold the other party to his bargain. The rhetorical phrases of a vendor are not necessarily fraudulent, 'simplex commendatio non obligat,' nor is the contract voidable unless it has been materially induced by the misrepresentation. The fraud of an agent will be imputed to his principal, although the latter may have acted with bona fides. What is known in English law

1 Pothier, Contr. de Vente, § 32; Windscheid, Pandekten, § 307.

2 Indian Contract Act, § 4; Handelsgesetzbuch, art. 318-321; the new Italian Codice di Commercio, art. 35; the new Swiss Code fédéral des Obligations, arts. 5-8.

3 On the distinction between void and voidable acts, cf. supra, p. 98. The French and Italian Codes seem to give to 'essential error' no higher effect upon a contract than they attribute to fraud and duress. Plato mentions duress, fraud and haste, as grounds for avoiding a contract. Crito, 52 E. On fraud as an infringement of a right 'in rem,' v. supra, p. 194.

as' undue influence' is also held to make a contract voidable. CHAP. XII. This consists in acts which, though not fraudulent, amount to an abuse of the power which circumstances have given to the will of one individual over that of another. In some relations, such as that of solicitor and client, or parent and child, the existence of this exceptional power is often presumed, but its existence is capable of being proved in other cases also.

Duress, which is another ground on which a contract is void- Duress. able, consists either in violence to the person, or in threatened violence of the same character, 'duress per minas.' It will not be enough if the safety of a man's house or goods only be threatened, and the fear caused must be, as has been said, 'not a vain fear, but such as may befall a constant man'; 'vani timoris iusta excusatio non est 1.'

According to English law the fraud or duress of a third party has no effect upon a contract; and this is the generally accepted rule as to fraud 2, though not as to duress 3.

4. The expression of agreement may be in writing, or Mode of expression. by words, or by signs, or merely by a course of conduct, in which last case it is called an 'implied contract 4.' In an old case, it was said, with reference to an unexpressed acceptance, 'your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil himself does not know what the thought of man is 5.'

It must be expressed by the parties to one another; but in developed systems of law it is not necessary that the parties shall be face to face at the time. They may communicate,

1 Dig. 1. 17. 184. Cf. supra, p. 91.

2 Though it is criticised by some commentators on the French Code: see Dalloz, Répertoire, s. v. 'Obligation.'

3 Dig. iv. 2. 9. 1, ib. 14. 3; Code Civil, art. IIII; Codice Civile, art. 1111. It is necessary carefully to distinguish from this appropriate use of the term its use as descriptive of terms imported into a contract by the law (supra, p. 209, infra, p. 234), and of a transaction to which the law chooses to attach the consequences of a contract, although it is nothing of the kind (supra, p. 201). Per Brian, C. J., 17 Ed. IV, quoted by Lord Blackburn in Brogden v. Metropolitan Railway Co., L. R. 2 App. 692.

CHAP. XII. for the purpose of contracting, as well as for the purpose May be by of otherwise affecting their legal relations, by letter, or by

agent.

telegraph, or by means of a messenger or other go-between. This go-between, when entrusted with a certain amount of discretion, is called an agent, or mandatory, and he acts by virtue of the authority, or 'mandate,' confided to him by his principal1. The giving of this authority on the one hand, and its acceptance on the other, constitute a special contract, resulting in mutual rights and duties between the principal and the agent, which will have to be discussed hereafter. We are now only concerned with agents as being, for the purposes of all contracts alike2, capable of giving binding expression to the will of their principals. Each party to a contract may be represented by an agent. It is a universally received maxim, that a person who at the time had no authority to act for another, may be retrospectively made his agent by subsequent ratification. Omnis ratihabitio retrotrahitur et mandato priori aequiparatur 3.

Authority An agent may in general be appointed without any of agent. formality, though in English law an agent to execute a deed must be appointed by deed, and for the purpose of binding his principal under the Statute of Frauds, sections 1 and 2, must be appointed in writing. Agency may also be implied from the acts of the principal, on the ground that if one person by his acts represents another person to be his agent, he ought in equity to be liable upon the contracts into which third parties may enter on the faith of such a representation. A servant, for instance, who is in the habit of ordering goods for his master on credit, may continue to bind his master after his authority has been withdrawn, with reference to third parties who have had no notice of such withdrawal. So the master of a ship is, in emergency, an agent to pledge the credit

1 Supra, pp. 97, 103.

2 The ratification of the promise of an infant could not however, under Lord Tenterden's Act, be made by an agent.

3 Cf. Bird v. Brown, 4 Ex. 798; Fleckner v. U. S. Bank, 8 Wheaton, 363.

of his employer for the good of the ship. It has however been CHAP. XII. held that mere necessity does not, in general, create agency; so a railway company is not liable for the fees of a surgeon who has been called in by one of their station-masters to attend to the sufferers from an accident 1. According to modern English decisions, a curious exception must be made to the ordinary rule of implied agency in the case of a wife. It has been held that a prohibition to her to order goods, though uncommunicated to her tradesmen, is sufficient to relieve the husband from liability for her purchases 2.

The authority of an agent is also terminated, in English law, by the death, or bankruptcy and perhaps by the lunacy, of his principal. Also by the marriage of a principal who is

a woman.

special and

Agents are said to be 'general' when their authority is Agents, defined by their character or business, as in the case of factors, general. brokers, or partners; or 'special' when their authority is limited by the terms of their appointment. No private instructions, contrary to the usages of a general agent's business, will limit the liability of his principal. It follows from the nature of agency, that a contract made by an agent is regarded as the contract of his principal, who alone therefore can as a rule sue or be sued upon it. The agent, having done his part by acting as the intermediary, drops out of the transaction 3. The fraud of an agent will render voidable the contract of his principal; and this, it seems, may be the case even when the contract in question was made through a different agent *. If a man contracts avowedly as the agent of another but without authority, neither can be charged upon the contract, but the pretended agent is liable for the deceit 5.

1 Cox v. Midland Railway Co., 3 Ex. 268.

2 Jolly v. Rees, 19 C. B., N. S. 628. The principle of this case has been affirmed by the House of Lords in Debenham v. Mellon, L. R. 6 App. Ca. 24. 3 For a list of the exceptions, real or apparent, to this rule recognised in English law, see Mr. Dicey's Parties to an Action, pp. 134-143.

Blackburn v. Vigors, 17 Q. B. D. (C. A.) 553

Cf. supra, p. 196.

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