Page:Harvard Law Review Volume 9.djvu/94

66 66 HARVARD LAW REVIEW, doctrine of ratification. Yet there is a doctrine of ratification ; and transactions which, as between the principal and the third person, were originally not of full validity, because of lack of au- thority, are the very transactions for which the doctrine of ratifica- tion was created, and to which alone it is applicable. Indeed, in the opinion in Dodge v. Hopkins it was conceded that a ratifica- tion does cause an unauthorized contract, though contemplating mutual promises, to become binding upon the ratifier. This con- cession, even when supported on the ground that the adverse party by choosing to accept the ratification makes the ratification mutual, seems fatal to the principal doctrine of the case. There is no rule to the effect that the adverse party, in order to profit by a ratifica- tion, must promptly assent to it, nor that after ratification and before assent by the adverse party the principal may withdraw, nor even that the adverse party must know of the ratification. Hence it seems that the validity of a ratification as against the ratifier depends upon the ratifier alone. Yet if his ratification makes good the promise originally made in his behalf by the un- authorized agent, it seems to make good at the same instant the counter-promise for which that promise was the consideration. Whether this reasoning be approved or not, it is admitted on all sides that a ratification, if assented to, makes the original contract binding upon both parties as of the time of the original transaction ; and this result seems to prove the untruthfulness of the assumption that the original transaction is wholly nugatory and the doubtful- ness of the conclusion that a new assent is necessary. The truth seems to be that the original transaction cannot be disregarded entirely ; that it is at least efficacious to the extent of supplying evidence of the assent of the third person ; that in the absence of withdrawal of that assent a new assent is unnecessary ; and that consequently the doctrine of Dodge v. Hopkins is unsatis- factory. The sound and useful features of Dodge v. Hopkins appear to be the tacit assumptions that a contract, even if made through an unauthorized agent, cannot become binding upon either party in interest unless at some one moment there is actually or theoretically an expression of assent by each, and that the doctrine of relation cannot be applied unless this elementary requirement of the law of Contracts is fulfilled.^ 1 An authority for these tacit assumptions is Walter z/. James, L. R. 6Ex. 124 (187 1), cited above.