Page:Harvard Law Review Volume 9.djvu/98

70 70 HARVARD LAW REVIEW. Bolton Partners v, Lambert has performed a good service by emphasizing the fact that the original transaction is not a mere nullity and that neither the offer nor the acceptance contained in it can be utterly disregarded; but the case seems to have gone much too far ; for in reality the contract first becomes binding when the ratification takes effect, and though thereupon the doctrine of relation normally applies, the appeal cannot be made to the doctrine of relation without first meeting the question whether at that time the parties expressly or impliedly assent, and whether under the circumstances ratification and relation will lead to absurd or unjust results. This is one of the places where the law consciously takes cognizance of convenience and justice, and does not permit its usually convenient fictions to be carried too far. Therefore it is unnecessary to dwell upon the fact that Bolton Partners v. Lam- bert appears to depart from the requirements of the law of Contracts as to mutual assent much more widely than the peculiarities of the law of Agency require ; and it is enough to point out that after the third person has clearly withdrawn his original assent, it is an obvious and unnecessary hardship to hold him bound, in expec- tation of possible ratification, to a still unbound principal. Nor does it seem an adequate answer to say that, in case the unbound principal eventually learns of the contract and refuses to ratify it, the third person may have a remedy against the assumed agent. Doubtless other objections can be urged against the theories that have been discussed ; and doubtless, as was admitted at the outset, it is impossible to suggest a theory that will be free from objec- tion. Yet the person who adversely criticises past theories is under a duty to attempt to present a theory that shall avoid some of the objections pointed out by him. Hence, though with great diffidence, a fifth theory is suggested, namely, that the original transaction does not finally bind either the principal or the adverse party ; that there can be no contract unless and until both parties actually or impliedly express simultaneous assent ; that the assent expressed by the adverse party at the time of the original transac- tion must be considered as continuing until withdrawn; that the only effect of the assent expressed by the unauthorized agent is to meet the expressed assent of the adverse party with an expression which may ultimately be adopted by the assumed principal, and which, meanwhile, prevents the expressed assent of the adverse party from expiring by lapse ; that before ratification the expressed