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THE GREEN BAG

CONSTRUCTIVE

CONTRACTS

George P. Costigan, Jr. IN a discussion carried on in the Columbia much "manifested intention" in the agency Law Review by Professor Walter W. Cook cases as in the contract cases. Then he and Mr. John S. Ewart in regard to the insists "that the liability of the principal essential nature of "Agency by Estoppel," 1 in [the case of] apparent authority rests the real difficulty confronting the disputants as truly upon a contractual basis as it does appears not to have been faced fairly. in the case of real authority."1 and asks how, from the point of view of contracts, it That difficulty is with the present classifica tion of contracts and is manifest when the can make any difference whether the agent controversy about agency by estoppel is has obeyed the principal's instructions or not in the making of the contract so long as he stated. Professor Cook's argument in his articles has kept within the principal's " manifested seems to be in essence that the so called intention" found in the apparent scope of agency by estoppel of which he is treating, the agent's authority? i.e., the agency which binds a principal In reply to Professor Cook, Mr. John S. where the agent exercises an ostensible Ewart resorts to old fashioned argument authority, which unknown to the other party to prove to Professor Cook that contracts do the principal has forbidden the agent to not depend upon manifested intention. exercise, is in fact and not by fiction actual What he has to say reminds one of the old agency because in the law of contracts a argument against the existence of motion: man who has made an offer is often held to A body cannot move where it is and it be bound by contract although he has cannot move where it is not and therefore started a revocation of his offer on its way it cannot move. A man, says Mr. Ewart, before the offer is accepted and so there is, cannot have two contradictory intentions at the time a contract is declared by the upon one subject at one time, so he cannot law to arise, no genuine mutual assent. have a real intention and a different mani fested intention at that time. And his Professor Cook's own language is : "My first proposition is this: It is funda conclusion is that "in the law of contracts mental in the law of contracts tha,t a person a man is not bound by intentions of any sort but only by contract"* and that Profis bound not by his real but by his mani fested intention, i.e. by his intention as fessor Cook's doctrine seems to be founded manifested to the other party. For the upon "a very erroneous notion of the im sake of brevity, I shall, in the remainder of portance of intention in the law of con the article, refer to this as the principle of tracts. " 8 What a contract in essence is he manifested intention. It results from this fails to tell us. that contracts often arise where there has And now we see why the real difficulty has been no mutual assent, no meeting of the not been faced fairly by either Professor minds of the parties, in fact. " 2 Cook or Mr. Ewart. That difficulty is And he proceeds to assert that there is as with the law of contracts and not with the 1 Walter W. Cook on Agency by Estoppel, 5 law of agency and arises when we ask Columbia Law Rev. 36; John S. Ewart on " Agency whether the contracts which Professor Cook by Estoppel," 5 Columbia Law Rev., 354; Walter 1 5 Columbia Law Rev., 43. W. Cook " Agency by Estoppel : A Reply," 6 1 5 Columbia Law Rev. 356-7. Columbia Law Rev., 34. ' 5 Columbia Law Rev.. 365. 1 5 Columbia Law Rev.. 40.