Page:EB1911 - Volume 07.djvu/55

Rh a question of interpretation whether in a given case there was any such condition.

Mistake is said to be a ground for avoiding contracts, and there are cases which it is practically convenient to group under this head. On principle they seem to be mostly reducible to failure of the acceptance to correspond with the offer, or absence of any real consideration for the promise. In such cases,

whether there be fraud or not, no contract is ever formed, and therefore there is nothing which can be ratified—a distinction which may have important effects. Relief against mistake is given where parties who have really agreed, or rather their advisers, fail to express their intention correctly. Here, if the original true intention is fully proved—as to which the court is rightly cautious—the faulty document can be judicially rectified.

By the common law an infant (i.e. a person less than twenty-one years old) was bound by contracts made for “necessaries,” i.e. such commodities as a jury holds, and the court thinks they may reasonably hold, suitable and required for the person’s condition; also by contracts otherwise clearly for

his benefit; all other contracts he might confirm or avoid after coming of age. An extremely ill-drawn act of 1874 absolutely deprived infants of the power of contracting loans, contracting for the supply of goods other than necessaries, and stating an account so as to bind themselves; it also disabled them from binding themselves by ratification. The liability for necessaries is now declared by legislative authority in the Sale of Goods Act 1893; the modern doctrine is that it is in no case a true liability on contract. There is an obligation imposed by law to pay, not the agreed price, but a reasonable price. Practically, people who give credit to an infant do so at their peril, except in cases of obvious urgency.

Married women were incapable by the common law of contracting in their own names. At this day they can hold separate property and bind themselves to the extent of that property—not personally—by contract. The law before the Married Women’s Property Acts (1882 and 1893, and earlier acts now superseded and repealed) was a very peculiar creature of the court of chancery; the number of cases in which it is necessary to go back to it is of course decreasing year by year. But a married woman can still be restrained from anticipating the income of her separate property, and the restriction is still commonly inserted in marriage settlements.

There is a great deal of philosophical interest about the nature and capacities of corporations, but for modern practical purposes it may be said that the legal powers of British corporations are directly or indirectly determined by acts of parliament. For companies under the Companies Acts the controlling instrument or written constitution is the memorandum of association. Company draftsmen, taught by experience, nowadays frame this in the most comprehensive terms. Questions of either personal or corporate disability are less frequent than they were. In any case they stand apart from the general principles which characterize our law of contract.

The rights created by contract are personal rights against the promisors and their legal representatives, and therefore different in kind from the rights of ownership and the like which are available against all the world. Nevertheless they may be and very commonly are capable of

pecuniary estimation and estimated as part of a man’s assets. Book debts are the most obvious example. Such rights are property in the larger sense: they are in modern law transmissible and alienable, unless the contract is of a kind implying personal confidence, or a contrary intention is otherwise shown. The rights created by negotiable instruments are an important and unique species of property, being not only exchangeable but the very staple of commercial currency. Contract and conveyance, again, are distinct in their nature, and sharply distinguished in the classical Roman law. But in the common law property in goods is transferred by a complete contract of sale without any further act, and under the French civil code and systems which have followed it a like rule applies not only to movables but to immovables. In English law procuring a man to break his contract is a civil wrong against the other contracting party, subject to exceptions which are still not clearly defined.

—History: Ames, “The History of Assumpsit,” Harvard Law Rev. ii. 1, 53 (Cambridge, Mass. 1889); Pollock and Maitland, History of English Law, 2nd ed., ii. 184–239 (Cambridge, 1898). Modern: Pollock, article “Contract” in Encyclopaedia of the Laws of England (2nd ed., London, 1907), a technical summary of the modern law; the same writer’s edition of the Indian Contract Act (assisted by D. F. Mulla, London and Bombay, 1905) restates and discusses the principles of the common law besides commenting on the provisions of the Act in detail. Of the text-books, Anson, English Law of Contract, reached an eleventh edition in 1906; Harriman, Law of Contracts (second edition, 1901); Leake, Principles of the Law of Contract (fifth edition by Randall, 1906); Pollock, Principles of Contract (eighth edition, 1910, third American edition, Wald’s completed by Williston, New York, 1906). O. W. Holmes’s (justice of the Supreme Court of the United States) The Common Law (Boston, Mass. 1881) is illuminating on contract as on other legal topics, though the present writer cannot accept all the learned judge’s historical conjectures.

 CONTRACTILE VACUOLE, in biology, a spherical space filled with liquid, which at intervals discharges into the medium; it is found in all fresh-water groups of Protozoa, and some marine forms, also in the naked aquatic reproductive cells of Algae and Fungi. It is absent in states with a distinct cell-wall to resist excessive turgescence, such as would lead to the rupture of a naked cell, and we conclude that its chief function is to prevent such turgescence in unprotected naked cells. It fulfils also respiratory and renal functions, and is comparable, physiologically, to the contractile vesicle or bladder of Rotifers and Turbellarians. In many species it is part of a complex of canals or spaces in the protoplasm.

See M. Hartog, British Association Reports, and Degen, Botanische Zeitung, vol. lxiii. Abt. 1 (1905) (see also ; ).

 CONTRADICTION, PRINCIPLE OF (principium contradictionis), in logic, the term applied to the second of the three primary “laws of thought.” The oldest statement of the law is that contradictory statements cannot both at the same time be true, e.g. the two propositions “A is B” and “A is not B” are mutually exclusive. A may be B at one time, and not at another; A may be partly B and partly not B at the same time; but it is impossible to predicate of the same thing, at the same time, and in the same sense, the absence and the presence of the same quality. This is the statement of the law given by Aristotle (, Metaph. 3, 1005 b 19). It takes no account of the truth of either proposition; if one is true, the other is not; one of the two must be true.

Modern logicians, following Leibnitz and Kant, have generally adopted a different statement, by which the law assumes an essentially different meaning. Their formula is “A is not not-A”; in other words it is impossible to predicate of a thing a quality which is its contradictory. Unlike Aristotle’s law this law deals with the necessary relation between subject and predicate in a single judgment. Whereas Aristotle states that one or other of two contradictory propositions must be false, the Kantian law states that a particular kind of proposition is in itself necessarily false. On the other hand there is a real connexion between the two laws. The denial of the statement “A is not-A” presupposes some knowledge of what A is, i.e. the statement A is A. In other words a judgment about A is implied. Kant’s analytical propositions depend on presupposed concepts which are the same for all people. His statement, regarded as a logical principle purely and apart from material facts, does not therefore amount to more than that of Aristotle, which deals simply with the significance of negation.

See text-books of Logic, e.g. C. Sigwart’s Logic (trans. Helen Dendy, London, 1895), vol. i. pp. 142 foll.; for the various expressions of the law see Ueberweg’s Logik, § 77; also J. S. Mill, Examination of Hamilton, 471; Venn, Empirical Logic.

 CONTRAFAGOTTO, or (Fr. contrebasson; Ger. Kontrafagott), a wood-wind instrument of the double reed family, which it completes as grand bass, the other members being the oboe, cor anglais, and bassoon. 