Page:Harvard Law Review Volume 32.djvu/720

684 684 HARVARD LAW REVIEW in Meyer v. Haworth, why should it do so in our A B case? The girl's promise seems in no respect to be a more substantial con- sideration than the married woman's. Both are void in law when made. "A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy.^* Holland sets down as the third constituent element of a contract, "The matter agreed upon must be at the time of the agreement both possible and legally permissible." ^^ Terry writes, "We speak of a void contract, although an agreement which is simply void is not perhaps in strictness a contract at all." ^° And, indeed, how can the most worthy motive, or the most reasonable ignorance on the part of the one making a promise be regarded as consideration, if such an one is thereby obligated to nothing at all, and if no value present or prospective is exchanged? In a case like ours, where the impossi- biHty of the promise follows from its illegahty, it might well be said that, even though quite innocent from a moral point of view, a promise may still be unlawful in the sense that it is not capable of being legally carried out. Let us look at the matter now from another standpoint — that of physical (as opposed to legal) impossibility: Suppose A to be the owner of a cargo of goods which he offers to sell to B for a certain price, and that B accepts the offer. Both parties believe that the cargo is in existence; but the fact is that at the time the contract was entered into ship and cargo were at the bottom of the ocean. Admittedly no contract exists in such a case. The same absence of contract results where a legal impossibility of performance intervenes, as where A's agent with full authority to do so had made a valid sale of the cargo to a third person, but A did not know this fact when he offered to sell it to B.^^ In both cases the parties are unaware of any obstacle or impossibility. Their minds "meet" in an abstraction, viz., the idea of a cargo of a certain sort, under certain physical surroundings. Yet for all their " unawareness " of any impossibility of performance, the fact that performance is impossible prevents there being a contract. " Jurisprudence, ii ed, 273. " Hastie v. Couturier, 9 Exch. 102 (1853).
 * ' Salmond, Jurisprudence, s ed, 309.
 * " Leading Principles of Anglo-American Law, § 172.