Page:The Green Bag (1889–1914), Volume 19.pdf/549

 THE GREEN BAG rating the things treated asjto^form olfaction only as if contracts |fromJthoseJwhichlfor all purposes are actual contracts, and having, as the suggestion does, the weight o^a great name in the law of contractsftojupjioldjit. "Constructive'-' should be kept, as£inAthe phrases " Constructive trusts," " Construc tive possession," " Constructive notice," "Constructive delivery " and " Constructive fraud" it has been kept, to apply to those things which for practical legal purposes are the things the adjective qualifies. For tunately Sir Frederick Pollock may be quoted against himself on this matter of terminology. In his book on contracts he says: "A man who had no fraudulent intention, or who has not even been personally negli gent, may be liable as for fraud. The ground of liability in such cases is shortly described as ' constructive fraud ' or per haps less aptly ' legal fraud.' The word ' constructive ' negatives actual fraud, but affirms that the actual conditions will have similar consequences. ' Constructive pos session ' signifies, in the same way, that an owner out of possession has certain advan tages originally given only to possessors ' Constructive delivery ' is a change of legal possession without change of physical cus tody; and we speak of ' constructive notice ' where- the existence of means of knowledge dispenses with the proof of actual know ledge." 1 "Constructive contracts," therefore, would seem to be just the term to apply to those contracts which exist because the rules of the game of making contracts require them to be named and treated as genuine con tracts though they do not in fact rest on mutual assent, and " consensual contracts." or some better term, should be used to desig nate those contracts where there is a real "meeting," i.e., coincidence, of the minds of the parties. That the phrase " consensual 1 Wald's Pollock on Contracts, 3rd ed. 647-8 (7th Eng. ed. 522).

contract" has a peculiar meaning in the Roman law 1 would seem to be no objection to its use in the present sense in the common law, since in the common law the word "contract " necessarily affirms the existence of a consideration or the presence of a seal, while in that law the word "consensual" has no narrow meaning. In the common law, the term "consensual contract" if adopted would unmistakably refer only to "the meeting of the minds " of the parties in an agreement sustained by considera tion or a seal. Until better names can be found, we should regard actual contracts, as distinguished from quasi-contracts, as divided into (1) consensual contracts and (2) constructive contracts. It is only fair to notice that what above are called "constructive contracts" were doubtless once regarded as literally what above are called "consensual contracts." It is common to say " I gave so and so a piece of my mind ' ' when speaking of a con versation had with, or a letter sent to, the person named. So in the eyes of the law sending an offer was doubtless conceived of by some judges as giving a piece of one's mind to the offeree and when the acceptance was communicated the law regarded the piece of the offerer's mind as met by a piece of the offerer's mind and so a genuine meet ing of minds as resulting, even though the offerer had started a second piece of his mind on the way to recall the first before the acceptance took place. Such reasoning is, of course, too artificial for the pyschology of today, and the meeting of minds in cases of constructive contracts is therefore to be claimed only by legal fiction, but it seems to account for the curious insistence from time to time, in text books and cases, that there is a meeting of the minds of the parties in all cases of contract.2 1 See Maine's Ancient Law, 4th Am. Ed. 321 ff. 2 Even Sir Frederick Pollock, though fully aware of the difficulty, retains in part the old phraseology. " Contract " he defines by reference to " agreement " and "agreement" he defines as