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C O N T R A C T

by the Chancellor was not for plaintiffs who could not show substantial merit as well as legal claims. The singular position of promises made by deed is best left out of account in considering the general doctrine of the formation of contracts; and as to interpretation there is no difference. In what follows, therefore, it will be needless, as a rule, to distinguish between “parol” or “simple” contracts, that is, contracts not made by deed, and obligations undertaken by deed. From the conception of a promise being valid only when given in return for something accepted in consideration of the promise, it follows that the giving of the promise and of the consideration must be simultaneous. Words of promise uttered before there is a consideration for them can be no more than an offer; and, on the other hand, the obligation declared in words, or inferred from acts and conduct, on the acceptance of a consideration, is fixed at that time, and cannot be varied by subsequent declaration, though such declarations may be material as admissions. It was a long while, however, before this consequence was clearly perceived. In the 18th century it was attempted, and for a time with considerable success, to extend the range of enforceable promises without regard to what the principles of the law would bear, in order to satisfy a sense of natural justice. This movement was checked only within living memory, and traces of it remain in certain apparently anomalous rules which are indeed of little practical importance, but which private writers, at any rate, cannot safely treat as obsolete. However, the question of “ past consideration ” is too minute and technical to be pursued here. The general result is that a binding contract is regularly constituted by the acceptance of an offer, and at the moment when it is accepted; and, however complicated the transaction may be, there must always, in the theory of English law, be such a moment in every case where a contract is formed. It also follows that an offer before acceptance creates no duty of any kind (“A revocable promise is unknown to our law” —Anson); which is by no means necessarily the case in systems where the English rule of consideration is unknown. The question what amounts to final acceptance of an offer is, on the other hand, a question ultimately depending on common sense, and must be treated on similar lines in all civilized countries where the business of life is carried on in a generally similar way. The rules that an offer is understood to be made only for a reasonable time, according to the nature of the case, and lapses if not accepted in due time; that an expressed revocation of an offer can take effect only if communicated to the other party before he has accepted; that acceptance of an offer must be according to its terms, and a conditional or qualified acceptance is only a new proposal, and the like, may be regarded as standing on general convenience as much as on any technical ground. Great difficulties have arisen, and in other systems as well as in the English, as to the completion of contracts between persons at a distance. There must be enc™SPOOdm some rule’ ancl yet any rule that can be framed must seem arbitrary in some cases. On the whole our modern doctrine is to some such effect as the following:— The proposer of a contract can prescribe or authorize any mode, or at least any reasonable mode, of acceptance, and if he specifies none he is deemed to authorize the use of any reasonable mode in common use, and especially the post. Acceptance in words is not always required; an offer may be well accepted by an act clearly referable to the proposed agreement, and constituting the whole or part of the performance asked for—say the despatch of goods in answer to an order by post, or the doing of work

bespoken; and it seems that in such cases further communication—unless expressly requested—is not necessary as matter of law, however prudent and desirable it may be. Where a promise and not an act is sought (as where a tradesman writes a letter offering goods for sale on credit), it must be communicated; in the absence of special direction letter post or telegraph may be used; and, further, the acceptor having done his part when his answer is committed to the post, English courts now hold (after much discussion and doubt) that any delay or miscarriage in course of post is at the proposer’s risk, so that a man may be bound by an acceptance he neverreceived. It is generally thought — though there is no English decision—that, in conformity with this last rule, a revocation by telegraph of an acceptance already posted would be inoperative. Much more elaborate rules than the English rules are laid down in some Continental codes. It seems doubtful whether their complication achieves any gain of substantial justice worth the price. At first sight it looks easy to solve some of the difficulties by admitting an interval during which one party is bound and the other not. But, apart from the risk of starting fresh problems as hard as the old ones, English principles, as above said, require a contract to be concluded between the parties at one point of time, and any exception to this would have to be justified by very strong grounds of expediency. We have already assumed, but it should be specifically stated, that neither offers nor acceptances are confined to communications made in spoken or written words. Acts or signs may and constantly do signify proposal and assent. One does not in terms request a. ferryman to put one across the river. Stepping into the boat is an offer to pay the usual fare for being ferried over, and the ferryman accepts it by putting off. This is a very simple case, but the principle is the same in all cases. Acts fitted to convey to a reasonable man the proposal of an agreement, or the acceptance of a proposal he has made, are as good in law as equivalent express words. The term “ implied contract ” is current in this connexion, but it is unfortunately ambiguous. It sometimes means a contract concluded by acts, not "words, of one or both parties, but still a real agreement; sometimes an obligation imposed by law where there is not any agreement in fact. The obligation of contract is an obligation created and determined by the will of the parties. Herein is the characteristic difference of contract from all other branches of law. The business of the law, therefore, is to give effect so far as possible to the intention of the parties, and all the rules for interpreting contracts go back to this fundamental principle and are controlled by it. Every one knows that its application is not always obvious. Parties often express themselves obscurely; still oftener they leave large parts of their intention unexpressed, or (which for the law is the same thing) have not formed any intention at all as to what is to be done in certain events. But even where the law has to fill up gaps by judicial conjecture, the guiding principle still is, or ought to be, the consideration of what either party has given the other reasonable cause to expect of him. The court aims not at imposing terms on the parties, but at fixing the terms left blank as the parties ■would or reasonably might have fixed them if all the possibilities had been clearly before their minds. For this purpose resort must be had to various tests: the court may look to the analogy of what the parties have expressly provided for other specified events, to the constant or general usage of persons engaged in like business, and, at need, ultimately to the court’s own sense of what is just and expedient. All auxiliary rules of this kind