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The Common Law by Oliver Wendell Holmes, Jr.

Part 5 out of 8

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for that class to become a new and distinct [284] action of
contract. Had this change taken place at once, the doctrine of
consideration, which was first definitely enunciated about the
same time, would no doubt have been applied, and a quid pro quo
would have been required for the undertaking. /1/ But the notion
of tort was not at once abandoned. The law was laid down at the
beginning of the reign of Henry VII., in accordance with the
earlier decisions, and it was said that the action would not lie
for a failure to keep a promise, but only for negligence after
the defendant had entered upon his undertaking. /2/

So far as the action did not exceed the true limits of tort, it
was immaterial whether there was a consideration for the
undertaking or not. But when the mistake was made of supposing
that all cases, whether proper torts or not, in which an
assumpsit was alleged, were equally founded on the promise, one
of two erroneous conclusions was naturally thought to follow.
Either no assumpsit needed any quid pro quo, /3/ as there was
clearly none in the older precedents, (they being cases of pure
tort,) or else those precedents were wrong, and a quid pro quo
should be alleged in every case. It was long recognized with more
or less understanding of the true limit, that, in cases where the
gist of the action was negligent damage to property, a
consideration was not necessary. /4/ And there are some traces of
the notion that it was always superfluous, as late as Charles I.

[285] In a case of that reign, the defendant retained an attorney
to act in a suit for a third person, and promised to pay him all
his fees and expenses. The attorney rendered the service, and
then brought debt. It was objected that debt did not lie, because
there was no contract between the parties, and the defendant had
not any quid pro quo. The court adopted the argument, and said
that there was no contract or consideration to ground this
action, but that the plaintiff might have sued in assumpsit. /1/

It was, perhaps, the lingering of this idea, and the often
repeated notion that an assumpsit was not a contract, /2/ to
which was attributable a more enlarged theory of consideration
than prevailed in debt. It was settled that assumpsit would lie
for a mere omission or nonfeasance. The cases which have been
mentioned of the reign of Henry VI. were followed by others in
the latter years of Henry VII., /3/ and it was never again
doubted. An action for such a cause was clearly for a breach of
promise, as had been recognized from the time of Edward III. If
so, a consideration was necessary. /4/ Notwithstanding occasional
vagaries, that also had been settled or taken for granted in many
cases of Queen Elizabeth's time. But the bastard origin of the
action which gave rise to the doubt how far any consideration at
all was necessary, made it possible to hold considerations
sufficient which had been in debt.

Another circumstance may not have been without its influence. It
would seem that, in the period when assumpsit [286] was just
growing into its full proportions, there was some little
inclination to identify consideration with the Roman causa, taken
in its broadest sense. The word "cause" was used for
consideration in the early years of Elizabeth, with reference to
a covenant to stand seized to uses. /1/ It was used in the same
sense in the action of assumpsit. /2/ In the last cited report,
although the principal case only laid down a doctrine that would
be followed to-day, there was also stated an anonymous case which
was interpreted to mean that an executed consideration furnished
upon request, but without any promise of any kind, would support
a subsequent promise to pay for it. /3/ Starting from this
authority and the word "cause," the conclusion was soon reached
that there was a great difference between a contract and an
assumpsit; and that, whereas in contracts "everything which is
requisite ought to concur and meet together, viz. the
consideration of the one side, and the sale or the promise on the
other side, ... to maintain an action upon an assumpsit, the same
is not requisite, for it is sufficient if there be a moving cause
or consideration precedent; for which cause or consideration the
promise was made." /4/

Thus, where the defendant retained the plaintiff to be [287] to
his aunt at ten shillings a week, it was held that assumpsit
would lie, because the service, though not beneficial to the
defendant, was a charge or detriment to the plaintiff. /1/ The
old questions were reargued, and views which were very near
prevailing in debt under Henry VI., prevailed in assumpsit under
Elizabeth and James.

A surety could be sued in assumpsit, although he had ceased to be
liable in debt. /2/ There was the same remedy on a promise in
consideration that the plaintiff would marry the defendant's
daughter. /3/ The illusion that assumpsit thus extended did not
mean contract, could not be kept up. In view of this admission
and of the ancient precedents, the law oscillated for a time in
the direction of reward as the true essence of consideration. /4/
But the other view prevailed, and thus, in fact, made a change in
the substantive law. A simple contract, to be recognized as
binding by the courts of Henry VI., must have been based upon a
benefit to the debtor; now a promise might be enforced in
consideration of a detriment to the promisee. But in the true
archaic spirit the doctrine was not separated or distinguished
from the remedy which introduced it, and thus debt in modern
times has presented the altered appearance of a duty limited to
cases where the consideration was of a special sort.

The later fortunes of assumpsit can be briefly told. It
introduced bilateral contracts, because a promise was a [288]
detriment, and therefore a sufficient consideration for another
promise. It supplanted debt, because the existence of the duty to
pay was sufficient consideration for a promise to pay, or rather
because, before a consideration was required, and as soon as
assumpsit would lie for a nonfeasance, this action was used to
avoid the defendant's wager of law. It vastly extended the number
of actionable contracts, which had formerly been confined to
debts and covenants, whereas nearly any promise could be sued in
assumpsit; and it introduced a theory which has had great
influence on modern law,--that all the liabilities of a bailee
are founded on contract. /1/ Whether the prominence which was
thus given to contract as the foundation of legal rights and
duties had anything to do with the similar prominence which it
soon acquired in political speculation, it is beyond my province
to inquire.



THE general method to be pursued in the analysis of contract is
the same as that already explained with regard to possession.
Wherever the law gives special rights to one, or imposes special
burdens on another, it does so on the ground that certain special
facts are true of those individuals. In all such cases,
therefore, there is a twofold task. First, to determine what are
the facts to which the special consequences are attached; second,
to ascertain the consequences. The first is the main field of
legal argument. With regard to contracts the facts are not always
the same. They may be that a certain person has signed, sealed,
and delivered a writing of a certain purport. They may be that he
has made an oral promise, and that the promisee has furnished him
a consideration.

The common element of all contracts might be said to be a
promise, although even a promise was not necessary to a liability
in debt as formerly understood. But as it will not be possible to
discuss covenants further, and as consideration formed the main
topic of the last Lecture, I will take up that first.
Furthermore, as there is an historical difference between
consideration in debt and in assumpsit, I shall confine myself to
the latter, which is the later and more philosophical form.

It is said that any benefit conferred by the promisee on the
promisor, or any detriment incurred by the promisee, [290] may be
a consideration. It is also thought that every consideration may
be reduced to a case of the latter sort, using the word
"detriment" in a somewhat broad sense.

To illustrate the general doctrine, suppose that a man is
desirous of having a cask of brandy carried from Boston to
Cambridge, and that a truckman, either out of kindness or from
some other motive, says that he will carry it, and it is
delivered to him accordingly. If he carelessly staves in the
cask, there would perhaps be no need to allege that he undertook
to carry it, and on principle, and according to the older cases,
if an undertaking was alleged, no consideration for the assumpsit
need be stated. /1/ The ground of complaint in that case would be
a wrong, irrespective of contract. But if the complaint was that
he did not carry it as agreed, the plaintiff's difficulty would
be that the truckman was not bound to do so unless there was a
consideration for his promise. Suppose, therefore, that it was
alleged that he promised to do so in consideration of the
delivery to him. Would this be a sufficient consideration? The
oldest cases, going on the notion of benefit to the promisor,
said that it could not be, for it was a trouble, not a benefit.
/2/ Then take it from the side of detriment. The delivery is a
necessary condition to the promisor's doing the kindness, and if
he does it, the delivery, so far from being a detriment to the
promisee, is a clear benefit to him.

But this argument is a fallacy. Clearly the delivery would be
sufficient consideration to enable the owner to declare in
assumpsit for the breach of those duties which [291] arose,
irrespective of contract, from the defendant's having undertaken
to deal with the thing. /1/ It would be a sufficient
consideration for any promise not involving a dealing with the
thing for its performance, for instance, to pay a thousand
dollars. /2/ And the law has not pronounced the consideration
good or bad according to the nature of the promise founded upon
it. The delivery is a sufficient consideration for any promise.

The argument on the other side leaves out of sight the point of
time at which the sufficiency of the consideration is to be
determined. This is the moment when the consideration is
furnished. At that moment the delivery of the cask is a detriment
in the strictest sense. The owner of the cask has given up a
present control over it, which he has a right to keep, and he has
got in return, not a performance for which a delivery was
necessary, but a mere promise of performance. The performance is
still future. /4/

But it will be seen that, although the delivery may be a
consideration, it will not necessarily be one. A promise to carry
might be made and accepted on the understanding that it was mere
matter of favor, without consideration, and not legally binding.
In that case the detriment of delivery would be incurred by the
promisee as before, but obviously it would be incurred for the
sole purpose of enabling the promisor to carry as agreed.

[292] It appears to me that it has not always been sufficiently
borne in mind that the same thing may be a consideration or not,
as it is dealt with by the parties. The popular explanation of
Coggs v. Bernard is, that the delivery was a consideration for a
promise to carry the casks safely. I have given what I believe to
be the true explanation, and that which I think Lord Holt had in
view, in the fifth Lecture. /1/ But whether that which I have
offered be true or not, a serious objection to the one which is
commonly accepted is that the declaration does not allege that
the delivery was the consideration.

The same caution should be observed in construing the terms of an
agreement. It is hard to see the propriety of erecting any
detriment which an instrument may disclose or provide for, into a
consideration, unless the parties have dealt with it on that
footing. In many cases a promisee may incur a detriment without
thereby furnishing a consideration. The detriment may be nothing
but a condition precedent to performance of the promise, as where
a man promises another to pay him five hundred dollars if he
breaks his leg. /2/

The courts, however, have gone far towards obliterating this
distinction. Acts which by a fair interpretation of language
would seem to have been contemplated as only the compliance with
a condition, have been treated as the consideration of the
promise. /3/ And so have counter promises in an agreement which
expressly stated other matters as the consideration. /4/ So it
should be mentioned, subject [293] to the question whether there
may not be a special explanation for the doctrine, that it is
said that an assignment of a leasehold cannot be voluntary under
the statute of 27 Elizabeth, c. 4, because the assignee comes
into the obligations of the tenant. /1/ Yet the assignee's
incurring this detriment may not be contemplated as the
inducement of the assignment, and in many cases only amounts to a
deduction from the benefit conferred, as a right of way would be,
especially if the only obligation is to pay rent, which issues
out of the land in theory of law.

But although the courts may have sometimes gone a little far in
their anxiety to sustain agreements, there can be no doubt of the
Principle which I have laid down, that the same thing may be a
consideration or not, as it is dealt with by the parties. This
raises the question how a thing must be dealt with, in order to
make it a consideration.

It is said that consideration must not be confounded with motive.
It is true that it must not be confounded with what may be the
prevailing or chief motive in actual fact. A man may promise to
paint a picture for five hundred dollars, while his chief motive
may be a desire for fame. A consideration may be given and
accepted, in fact, solely for the purpose of making a promise
binding. But, nevertheless, it is the essence of a consideration,
that, by the terms of the agreement, it is given and accepted as
the motive or inducement of the promise. Conversely, the promise
must be made and accepted as the conventional motive or
inducement for furnishing the consideration. The root of the
whole matter is the relation of reciprocal [294] conventional
inducement, each for the other, between consideration and

A good example of the former branch of the proposition is to be
found in a Massachusetts case. The plaintiff refused to let
certain wood be removed from his land by one who had made an oral
bargain and given his note for it, unless he received additional
security. The purchaser and the plaintiff accordingly went to the
defendant, and the defendant put his name upon the note. The
plaintiff thereupon let the purchaser carry off the wood. But,
according to the testimony, the defendant signed without knowing
that the plaintiff was to alter his position in any way on the
faith of the signature, and it was held that, if that story was
believed, there was no consideration. /1/

An illustration of the other half of the rule is to be found in
those cases where a reward is offered for doing something, which
is afterwards done by a person acting in ignorance of the offer.
In such a case the reward cannot be claimed, because the alleged
consideration has not been furnished on the faith of the offer.
The tendered promise has not induced the furnishing of the
consideration. The promise cannot be set up as a conventional
motive when it was not known until after the alleged
consideration was performed. /2/

Both sides of the relation between consideration and promise, and
the conventional nature of that relation, may be illustrated by
the case of the cask. Suppose that the [295] truckman is willing
to carry the cask, and the owner to let him carry it, without any
bargain, and that each knows the other's state of mind; but that
the truckman, seeing his own advantage in the matter, says to the
owner, "In consideration of your delivering me the cask, and
letting me carry it, I promise to carry it," and that the owner
thereupon delivers it. I suppose that the promise would be
binding. The promise is offered in terms as the inducement for
the delivery, and the delivery is made in terms as the inducement
for the promise. It may be very probable that the delivery would
have been made without a promise, and that the promise would have
been made in gratuitous form if it had not been accepted upon
consideration; but this is only a guess after all. The delivery
need not have been made unless the owner chose, and having been
made as the term of a bargain, the promisor cannot set up what
might have happened to destroy the effect of what did happen. It
would seem therefore that the same transaction in substance and
spirit might be voluntary or obligatory, according to the form of
words which the parties chose to employ for the purpose of
affecting the legal consequences.

If the foregoing principles be accepted, they will be seen to
explain a doctrine which has given the courts some trouble to
establish. I mean the doctrine that an executed consideration
will not sustain a subsequent promise. It has been said, to be
sure, that such a consideration was sufficient if preceded by a
request. But the objections to the view are plain. If the request
was of such a nature, and so put, as reasonably to imply that the
other person was to have a reward, there was an express promise,
although not put in words, and that promise was made at [296] the
same time the consideration was given, and not afterwards. If, on
the other hand, the words did not warrant the understanding that
the service was to be paid for, the service was a gift, and a
past gift can no more be a consideration than any other act of
the promisee not induced by the promise.

The source of the error can be traced partially, at least, in
history. Some suggestions touching the matter were made in the
last Lecture. A few words should be added here. In the old cases
of debt, where there was some question whether the plaintiff had
showed enough to maintain his action, a "contract precedent" was
spoken of several times as raising the duty. Thus, where a man
had granted that he would be bound in one hundred shillings to
pay his servant on a certain day for his services, and for
payments made by the servant on his account, it was argued that
there was no contract precedent, and that by parol the party is
not obliged; and, further, that, so far as appeared, the payments
were made by the servant out of his own head and at no request,
from which no duty could commence. /1/

So when debt was brought on a deed to pay the plaintiff ten
marks, if he would take the defendant's daughter to wife, and it
was objected that the action should have been covenant, it was
answered that the plaintiff had a contract precedent which gave
him debt. /2/

The first case in assumpsit /3/ only meant to adopt this long
familiar thought. A man went bail for his friend's servant, who
had been arrested. Afterwards the master [297] promised to
indemnify the bail, and on his failure to do so was sued by him
in assumpsit. It was held that there was no consideration
wherefore the defendant should be charged unless the master had
first promised to indemnify the plaintiff before the servant was
bailed; "for the master did never make request to the plaintiff
for his servant to do so much, but he did it of his own head."
This is perfectly plain sailing, and means no more than the case
in the Year Books. The report, however, also states a case in
which it was held that a subsequent promise, in consideration
that the plaintiff at the special instance of the defendant had
married the defendant's cousin, was binding, and that the
marriage was "good cause ... because [it] ensued the request of
the defendant." Whether this was intended to establish a general
principle, or was decided with reference to the peculiar
consideration of marriage, /1/ it was soon interpreted in the
broader sense, as was shown in the last Lecture. It was several
times adjudged that a past and executed matter was a sufficient
consideration for a promise at a later day, if only the matter
relied on had been done or furnished at the request of the
promisor. /2/

It is now time to analyze the nature of a promise, which is the
second and most conspicuous element in a simple contract. The
Indian Contract Act, 1872, Section 2,8 says:--

"(a.) When one person signifies to another his willingness [298]
to do or to abstain from doing anything, with a view to obtaining
the assent of that other to such act or abstinence, he is said to
make a proposal:

"(b.) When the person to whom the proposal is made signifies his
assent thereto, the proposal is said to be accepted. A proposal
when accepted becomes a promise."

According to this definition the scope of promises is confined to
conduct on the part of the promisor. If this only meant that the
promisor alone must bear the legal burden which his promise may
create, it would be true. But this is not the meaning. For the
definition is of a promise, not of a legally binding promise. We
are not seeking for the legal effects of a contract, but for the
possible contents of a promise which the law may or may not
enforce. We must therefore only consider the question what can
possibly be promised in a legal sense, not what will be the
secondary consequence of a promise binding, but not performed.

An assurance that it shall rain to-morrow, /1/ or that a third
person shall paint a picture, may as well be a promise as one
that the promisee shall receive from some source one hundred
bales of cotton, or that the promisor will pay the promisee one
hundred dollars. What is the difference in the cases? It is only
in the degree of power possessed by the promisor over the event.
He has none in the first case. He has equally little legal
authority to make a man paint a picture, although he may have
larger means of persuasion. He probably will be able to make sure
that the promisee has the cotton. Being a rich man, he is certain
[299] to be able to pay the one hundred dollars, except in the
event of some most improbable accident.

But the law does not inquire, as a general thing, how far the
accomplishment of an assurance touching the future is within the
power of the promisor. In the moral world it may be that the
obligation of a promise is confined to what lies within reach of
the will of the promisor (except so far as the limit is unknown
on one side, and misrepresented on the other). But unless some
consideration of public policy intervenes, I take it that a man
may bind himself at law that any future event shall happen. He
can therefore promise it in a legal sense. It may be said that
when a man covenants that it shall rain to-morrow, or that A
shall paint a picture, he only says, in a short form, I will pay
if it does not rain, or if A does not paint a picture. But that
is not necessarily so. A promise could easily be framed which
would be broken by the happening of fair weather, or by A not
painting. A promise, then, is simply an accepted assurance that a
certain event or state of things shall come to pass.

But if this be true, it has more important bearings than simply
to enlarge the definition of the word promise. It concerns the
theory of contract. The consequences of a binding promise at
common law are not affected by the degree of power which the
promisor possesses over the promised event. If the promised event
does not come to pass, the plaintiff's property is sold to
satisfy the damages, within certain limits, which the promisee
has suffered by the failure. The consequences are the same in
kind whether the promise is that it shall rain, or that another
man shall paint a picture, or that the promisor will deliver a
bale of cotton.

[300] If the legal consequence is the same in all cases, it seems
proper that all contracts should be considered from the same
legal point of view. In the case of a binding promise that it
shall rain to-morrow, the immediate legal effect of what the
promisor does is, that he takes the risk of the event, within
certain defined limits, as between himself and the promisee. He
does no more when he promises to deliver a bale of cotton.

If it be proper to state the common-law meaning of promise and
contract in this way, it has the advantage of freeing the subject
from the superfluous theory that contract is a qualified
subjection of one will to another, a kind of limited slavery. It
might be so regarded if the law compelled men to perform their
contracts, or if it allowed promisees to exercise such
compulsion. If, when a man promised to labor for another, the law
made him do it, his relation to his promisee might be called a
servitude ad hoc with some truth. But that is what the law never
does. It never interferes until a promise has been broken, and
therefore cannot possibly be performed according to its tenor. It
is true that in some instances equity does what is called
compelling specific performance. But, in the first place, I am
speaking of the common law, and, in the next, this only means
that equity compels the performance of certain elements of the
total promise which are still capable of performance. For
instance, take a promise to convey land within a certain time, a
court of equity is not in the habit of interfering until the time
has gone by, so that the promise cannot be performed as made. But
if the conveyance is more important than the time, and the
promisee prefers to have it late rather than never, the law may
compel the performance of [301] that. Not literally compel even
in that case, however, but put the promisor in prison unless he
will convey. This remedy is an exceptional one. The only
universal consequence of a legally binding promise is, that the
law makes the promisor pay damages if the promised event does not
come to pass. In every case it leaves him free from interference
until the time for fulfilment has gone by, and therefore free to
break his contract if he chooses.

A more practical advantage in looking at a contract as the taking
of a risk is to be found in the light which it throws upon the
measure of damages. If a breach of contract were regarded in the
same light as a tort, it would seem that if, in the course of
performance of the contract the promisor should be notified of
any particular consequence which would result from its not being
performed, he should be held liable for that consequence in the
event of non-performance. Such a suggestion has been made. /1/
But it has not been accepted as the law. On the contrary,
according to the opinion of a very able judge, which seems to be
generally followed, notice, even at the time of making the
contract, of special circumstances out of which special damages
would arise in case of breach, is not sufficient unless the
assumption of that risk is to be taken as having fairly entered
into the contract. /2/ If a carrier should undertake to carry the
machinery of a saw-mill from Liverpool to Vancouver's Island, and
should fail [302] to do so, he probably would not be held liable
for the rate of hire of such machinery during the necessary
delay, although he might know that it could not be replaced
without sending to England, unless he was fairly understood to
accept "the contract with the special condition attached to it."

It is true that, when people make contracts, they usually
contemplate the performance rather than the breach. The express
language used does not generally go further than to define what
will happen if the contract is fulfilled. A statutory requirement
of a memorandum in writing would be satisfied by a written
statement of the promise as made, because to require more would
be to run counter to the ordinary habits of mankind, as well as
because the statement that the effect of a contract is the
assumption of the risk of a future event does not mean that there
is a second subsidiary promise to assume that risk, but that the
assumption follows as a consequence directly enforced by the law,
without the promisor's co-operation. So parol evidence would be
admissible, no doubt, to enlarge or diminish the extent of the
liability assumed for nonperformance, where it would be
inadmissible to affect the scope of the promise.

But these concessions do not affect the view here taken. As the
relation of contractor and contractee is voluntary, the
consequences attaching to the relation must be voluntary. What
the event contemplated by the promise is, or in other words what
will amount to a breach of contract, is a matter of
interpretation and construction. What consequences of the breach
are assumed is more remotely, in like manner, a matter of
construction, having regard [303] to the circumstances under
which the contract is made. Knowledge of what is dependent upon
performance is one of those circumstances. It is not necessarily
conclusive, but it may have the effect of enlarging the risk

The very office of construction is to work out, from what is
expressly said and done, what would have been said with regard to
events not definitely before the minds of the parties, if those
events had been considered. The price paid in mercantile
contracts generally excludes the construction that exceptional
risks were intended to be assumed. The foregoing analysis is
believed to show that the result which has been reached by the
courts on grounds of practical good sense, falls in with the true
theory of contract under the common law.

The discussion of the nature of a promise has led me to analyze
contract and the consequences of contract somewhat in advance of
their place. I must say a word more concerning the facts which
constitute a promise. It is laid down, with theoretical truth,
that, besides the assurance or offer on the one side, there must
be an acceptance on the other. But I find it hard to think of a
case where a simple contract fails to be made, which could not be
accounted for on other grounds, generally by the want of relation
between assurance or offer and consideration as reciprocal
inducements each of the other. Acceptance of an offer usually
follows by mere implication from the furnishing of the
consideration; and inasmuch as by our law an accepted offer, or
promise, until the consideration is furnished, stands on no
different footing from an offer not yet accepted, each being
subject to revocation until that time, and each continuing [304]
until then unless it has expired or has been revoked, the
question of acceptance is rarely of practical importance.

Assuming that the general nature of consideration and promise is
understood, some questions peculiar to bilateral contracts remain
to be considered. These concern the sufficiency of the
consideration and the moment when the contract is made.

A promise may be a consideration for a promise, although not
every promise for every other. It may be doubted whether a
promise to make a gift of one hundred dollars would be supported
by a promise to accept it. But in a case of mutual promises
respectively to transfer and to accept unpaid shares in a railway
company, it has been held that a binding contract was made. Here
one party agrees to part with something which may prove valuable,
and the other to assume a liability which may prove onerous. /1/

But now suppose that there is no element of uncertainty except in
the minds of the parties. Take, for instance, a wager on a past
horse-race. It has been thought that this would amount to an
absolute promise on one side, and no promise at all on the other.
/2/ But this does not seem to me sound. Contracts are dealings
between men, by which they make arrangements for the future. In
making such arrangements the important thing is, not what is
objectively true, but what the parties know. Any present fact
which is unknown to the parties is just as uncertain for the
purposes of making an arrangement at this moment, as any future
fact. It is therefore a detriment to undertake to be ready to pay
if the event turns out not [305] to have been as expected. This
seems to be the true explanation why forbearance to sue upon a
claim believed the plaintiff to be good is a sufficient
consideration, although the claim was bad in fact, and known by
the defendant to be bad. /1/ Were this view unsound, it is hard
to see how wagers on any future event, except a miracle, could be
sustained. For if the happening or not happening of the event is
subject to the law of causation, the only uncertainty about it is
in our foresight, not in its happening.

The question when a contract is made arises for the most part
with regard to bilateral contracts by letter, the doubt being
whether the contract is complete at the moment when the return
promise is put into the post, or at the moment when it is
received. If convenience preponderates in favor of either view,
that is a sufficient reason for its adoption. So far as merely
logical grounds go, the most ingenious argument in favor of the
later moment is Professor Langdell's. According to him the
conclusion follows from the fact that the consideration which
makes the offer binding is itself a promise. Every promise, he
says, is an offer before it is a promise, and the essence of an
offer is that it should be communicated. /2/ But this reasoning
seems unsound. When, as in the case supposed, the consideration
for the return promise has been put into the power of the offeree
and the return promise has been accepted in advance, there is not
an instant, either in time or logic, when the return promise is
an offer. It is a promise and a term of a binding contract as
soon as it is anything. An offer is a revocable and unaccepted
communication of willingness to promise. [306] When an offer of a
certain bilateral contract has been made, the same contract
cannot be offered by the other side. The so-called offer would
neither be revocable nor unaccepted. It would complete the
contract as soon as made.

If it be said that it is of the essence of a promise to be
communicated, whether it goes through the stage of offer or not,
meaning by communicated brought to the actual knowledge of the
promisee, the law is believed to be otherwise. A covenant is
binding when it is delivered and accepted, whether it is read or
not. On the same principle, it is believed that, whenever the
obligation is to be entered into by a tangible sign, as, in the
case supposed, by letter containing the return promise, and the
consideration for and assent to the promise are already given,
the only question is when the tangible sign is sufficiently put
into the power of the promisee. I cannot believe that, if the
letter had been delivered to the promisee and was then snatched
from his hands before he had read it, there would be no contract.
/l / If I am right, it appears of little importance whether the
post-office be regarded as agent or bailee for the offerer, or as
a mere box to which he has access. The offeree, when he drops the
letter containing the counter-promise into the letter-box, does
an overt act, which by general understanding renounces control
over the letter, and puts it into a third hand for the benefit of
the offerer, with liberty to the latter at any moment thereafter
to take it.

The principles governing revocation are wholly different. One to
whom an offer is made has a right to assume that it remains open
according to its terms until he has actual [307] notice to the
contrary. The effect of the communication must be destroyed by a
counter communication. But the making of a contract does not
depend on the state of the parties' minds, it depends on their
overt acts. When the sign of the counter promise is a tangible
object, the contract is completed when the dominion over that
object changes.



THE elements of fact necessary to call a contract into existence,
and the legal consequences of a contract when formed, have been
discussed. It remains to consider successively the cases in which
a contract is said to be void, and those in which it is said to
be voidable,--in which, that is, a contract fails to be made when
it seems to have been, or, having been made, can be rescinded by
one side or the other, and treated as if it had never been. I
take up the former class of cases first.

When a contract fails to be made, although the usual forms have
been gone through with, the ground of failure is commonly said to
be mistake, misrepresentation, or fraud. But I shall try to show
that these are merely dramatic circumstances, and that the true
ground is the absence of one or more of the primary elements,
which have been shown, or are seen at once, to be necessary to
the existence of a contract.

If a man goes through the form of making a contract with A
through B as A's agent, and B is not in fact the agent of A,
there is no contract, because there is only one party. The
promise offered to A has not been accepted by him, and no
consideration has moved from him. In such a case, although there
is generally mistake on one side and fraud on the other, it is
very clear that no special [309] doctrine need be resorted to,
because the primary elements of a contract explained in the last
Lecture are not yet present.

Take next a different case. The defendant agreed to buy, and the
plaintiff agreed to sell, a cargo of cotton, "to arrive ex
Peerless from Bombay." There were two such vessels sailing from
Bombay, one in October, the other in December. The plaintiff
meant the latter, the defendant the former. It was held that the
defendant was not bound to accept the cotton. /1/ It is commonly
said that such a contract is void, because of mutual mistake as
to the subject- matter, and because therefore the parties did not
consent to the same thing. But this way of putting it seems to me
misleading. The law has nothing to do with the actual state of
the parties' minds. In contract, as elsewhere, it must go by
externals, and judge parties by their conduct. If there had been
but one "Peerless," and the defendant had said "Peerless" by
mistake, meaning "Peri," he would have been bound. The true
ground of the decision was not that each party meant a different
thing from the other, as is implied by the explanation which has
been mentioned, but that each said a different thing. The
plaintiff offered one thing, the defendant expressed his assent
to another.

A proper name, when used in business or in pleading, /2/ means
one individual thing, and no other, as every one knows, and
therefore one to whom such a name is used must find out at his
peril what the object designated is. If there are no
circumstances which make the use deceptive on either side, each
is entitled to insist on the [310] meaning favorable to him for
the word as used by him, and neither is entitled to insist on
that meaning for the word as used by the other. So far from
mistake having been the ground of decision, as mistake, its only
bearing, as it seems to me, was to establish that neither party
knew that he was understood by the other to use the word
"Peerless "in the sense which the latter gave to it. In that
event there would perhaps have been a binding contract, because,
if a man uses a word to which he knows the other party attaches,
and understands him to attach, a certain meaning, he may be held
to that meaning, and not be allowed to give it any other. /1/

Next, suppose a case in which the offer and acceptance do not
differ, and in which both parties have used the same words in the
same sense. Suppose that A agreed to buy, and B agreed to sell,
"these barrels of mackerel," and that the barrels in question
turn out to contain salt. There is mutual mistake as to the
contents of the barrels, and no fraud on either side. I suppose
the contract would be void. /2/

It is commonly said that the failure of the contract in such a
case is due to the fact of a difference in kind between the
actual subject-matter and that to which the intention of the
parties was directed. It is perhaps more instructive to say that
the terms of the supposed contract, although seemingly
consistent, were contradictory, in matters that went to the root
of the bargain. For, by one of the essential terms, the
subject-matter of the agreement was the contents of certain
barrels, and nothing else, and, by another equally important, it
was mackerel, and nothing else; [311] while, as a matter of fact,
it could not be both, because the contents of the barrels were
salt. As neither term could be left out without forcing on the
parties a contract which they did not make, it follows that A
cannot be required to accept, nor B to deliver either these
barrels of salt, or other barrels of mackerel; and without
omitting one term, the promise is meaningless.

If there had been fraud on the seller's part, or if he had known
what the barrels really contained, the buyer might have had a
right to insist on delivery of the inferior article. Fraud would
perhaps have made the contract valid at his option. Because, when
a man qualifies sensible words with others which he knows, on
secret grounds, are insensible when so applied, he may fairly be
taken to authorize his promisee to insist on the possible part of
his promise being performed, if the promisee is willing to forego
the rest.

Take one more illustration like the last case. A policy of
insurance is issued on a certain building described in the policy
as a machine-shop. In fact the building is not a machine-shop,
but an organ factory, which is a greater risk. The contract is
void, not because of any misrepresentation, but, as before,
because two of its essential terms are repugnant, and their union
is insensible. /1/

Of course the principle of repugnancy last explained might be
stretched to apply to any inconsistency between the different
terms of a contract. It might be said, for instance, that if a
piece of gold is sold as eighteen-carat gold, and it is in fact
not so pure, or if a cow is sold as yielding an average of twelve
quarts of milk a day, and in fact she yields only six quarts,
there is no logical difference, [312] according to the
explanation which has just been offered, between those cases and
that of the barrel of salt sold for mackerel. Yet those bargains
would not be void. At the most, they would only be voidable, if
the buyer chose to throw them up.

The distinctions of the law are founded on experience, not on
logic. It therefore does not make the dealings of men dependent
on a mathematical accuracy. Whatever is promised, a man has a
right to be paid for, if it is not given; but it does not follow
that the absence of some insignificant detail will authorize him
to throw up the contract, still less that it will prevent the
formation of a contract, which is the matter now under
consideration. The repugnant terms must both be very
important,--so important that the court thinks that, if either is
omitted, the contract would be different in substance from that
which the words of the parties seemed to express.

A term which refers directly to an identification by the senses
has always this degree of importance. If a promise is made to
sell this cow, or this mackerel, to this man, whatever else may
be stricken from the contract, it can never be enforced except
touching this object and by this man. If this barrel of salt is
fraudulently sold for a barrel of mackerel, the buyer may perhaps
elect to take this barrel of salt if he chooses, but he cannot
elect to take another barrel of mackerel. If the seller is
introduced by the name B, and the buyer supposes him to be
another person of the same name, and under that impression
delivers his written promise to buy of B, the B to whom the
writing is delivered is the contractee, if any one is, and,
notwithstanding what has been said of the use of proper names, I
should suppose [313] a contract would be made. /1/ For it is
further to be said that, so far as by one of the terms of a
contract the thing promised or the promisee is identified by
sight and hearing, that term so far preponderates over all others
that it is very rare for the failure of any other element of
description to prevent the making of a contract. /2/ The most
obvious of seeming exceptions is where the object not in fact so
identified, but only its covering or wrapper.

Of course the performance of a promise may be made conditional on
all the terms stipulated from the other side being complied with,
but conditions attaching to performance can never come into
consideration until a contract has been made, and so far the
question has been touching the existence of a contract in the
first instance.

A different case may be suggested from any yet considered.
Instead of a repugnancy between offer and assent which prevents
an agreement, or between the terms of an agreement which makes it
insensible on its fact, there may be a like repugnancy between a
term of the contract and a previous representation of fact which
is not expressly made a part of the contract. The representation
may have been the chief inducement and very foundation of the
bargain. It may be more important than any of the expressed
terms, and yet the contract may have [314] been reduced to
writing in words which cannot fairly be construed to include it.
A vendor may have stated that barrels filled with salt contain
mackerel, but the contract may be only for the barrels and their
contents. An applicant for insurance may have misstated facts
essential to the risk, yet the policy may simply insure a certain
building or a certain life. It may be asked whether these
contracts are not void also.

There might conceivably be cases in which, taking into account
the nature of the contract, the words used could be said to
embody the representation as a term by construction. For
instance, it might be said that the true and well-understood
purport of a contract of insurance is not, as the words seem to
say, to take the risk of any loss by fire or perils of the sea,
however great the risk may be, but to take a risk of a certain
magnitude, and no other, which risk has been calculated
mathematically from the statements of the party insured. The
extent of the risk taken is not specified in the policy, because
the old forms and established usage are otherwise, but the
meaning is perfectly understood.

If this reasoning were adopted, there would be an equal
repugnancy in the terms of the contract, whether the nature of
the risk were written in the policy or fixed by previous
description. But, subject to possible exceptions of this kind, it
would seem that a contract would be made, and that the most that
could be claimed would be a right to rescind. Where parties
having power to bind themselves do acts and use words which are
fit to create an obligation, I take it that an obligation arises.
If there is a mistake as to a fact not mentioned in the contract,
it goes only to the motives for making the contract. But a [315]
contract is not prevented from being made by the mere fact that
one party would not have made it if he had known the truth. In
what cases a mistake affecting motives is a ground for avoidance,
does not concern this discussion, because the subject now under
consideration is when a contract is made, and the question of
avoiding or rescinding it presupposes that it has been made.

I think that it may now be assumed that, when fraud,
misrepresentation, or mistake is said to make a contract void,
there is no new principle which comes in to set aside an
otherwise perfect obligation, but that in every such case there
is wanting one or more of the first elements which were explained
in the foregoing Lecture. Either there is no second party, or the
two parties say different things, or essential terms seemingly
consistent are really inconsistent as used.

When a contract is said to be voidable, it is assumed that a
contract has been made, but that it is subject to being unmade at
the election of one party. This must be because of the breach of
some condition attached to its existence either expressly or by

If a condition is attached to the contract's coming into being,
there is as yet no contract. Either party may withdraw, at will,
until the condition is determined. There is no obligation,
although there may be an offer or a promise, and hence there is
no relation between the parties which requires discussion here.
But some conditions seemingly arising out of a contract already
made are conditions of this sort. Such is always the case if the
condition of a promise lies within the control of the promisor's
own will. For instance, a promise to pay for clothes if made to
the customer's satisfaction, has been held in Massachusetts to
[316] make the promisor his own final judge. /1/ So interpreted,
it appears to me to be no contract at all, until the promisor's
satisfaction is expressed. His promise is only to pay if he sees
fit, and such a promise cannot be made a contract because it
cannot impose any obligation. /2/ If the promise were construed
to mean that the clothes should be paid for provided they were
such as ought to satisfy the promisor, /3/ and thus to make the
jury the arbiter, there would be a contract, because the promisor
gives up control over the event, but it would be subject to a
condition in the sense of the present analysis.

The conditions which a contract may contain have been divided by
theorists into conditions precedent and conditions subsequent.
The distinction has even been pronounced of great importance. It
must be admitted that, if the course of pleading be taken as a
test, it is so. In some cases, the plaintiff has to state that a
condition has been performed in order to put the defendant to his
answer; in others, it is left to the defendant to set up that a
condition has been broken.

In one sense, all conditions are subsequent; in another, all are
precedent. All are subsequent to the first stage of the
obligation. /4/ Take, for instance, the case of a promise to pay
for work if done to the satisfaction of an architect. The
condition is a clear case of what is called a condition
precedent. There can be no duty to pay until the architect is
satisfied. But there can be a [317] contract before that moment,
because the determination whether the promisor shall pay or not
is no longer within his control. Hence the condition is
subsequent to the existence of the obligation.

On the other hand, every condition subsequent is precedent to the
incidence of the burden of the law. If we look at the law as it
would be regarded by one who had no scruples against doing
anything which he could do without incurring legal consequences,
it is obvious that the main consequence attached by the law to a
contract is a greater or less possibility of having to pay money.
The only question from the purely legal point of view is whether
the promisor will be compelled to pay. And the important moment
is that at which that point is settled. All conditions are
precedent to that.

But all conditions are precedent, not only in this extreme sense,
but also to the existence of the plaintiff's cause of action. As
strong a case as can be put is that of a policy of insurance
conditioned to be void if not sued upon within one year from a
failure to pay as agreed. The condition does not come into play
until a loss has occurred, the duty to pay has been neglected,
and a cause of action has arisen. Nevertheless, it is precedent
to the plaintiff's cause of action. When a man sues, the question
is not whether he has had a cause of action in the past, but
whether he has one then. He has not one then, unless the year is
still running. If it were left for the defendant to set up the
lapse of the year, that would be due to the circumstance that the
order of pleading does not require a plaintiff to meet all
possible defences, and to set out a case unanswerable except by
denial. The point at which the law calls on the defendant for an
answer varies [318] in different cases. Sometimes it would seem
to be governed simply by convenience of proof, requiring the
party who has the affirmative to plead and prove it. Sometimes
there seems to be a reference to the usual course of events, and
matters belong to the defence because they are only exceptionally

The most logical distinction would be between conditions which
must be satisfied before a promise can be broken, and those
which, like the last, discharge the liability after a breach has
occurred. /1/ But this is of the slightest possible importance,
and it may be doubted whether another case like the last could be

It is much more important to mark the distinction between a
stipulation which only has the effect of confining a promise to
certain cases, and a condition properly so called. Every
condition, it is true, has this effect upon the promise to which
it is attached, so that, whatever the rule of pleading may be,
/2/ a promise is as truly kept and performed by doing nothing
where the condition of the stipulated act has been broken, as it
would have been by doing the act if the condition had been
fulfilled. But if this were all, every clause in a contract which
showed what the promisor did not promise would be a condition,
and the word would be worse than useless. The characteristic
feature is quite different.

A condition properly so called is an event, the happening of
which authorizes the person in whose favor the condition is
reserved to treat the contract as if it had not been made,--to
avoid it, as is commonly said,--that is, to insist on both
parties being restored to the position in [319] which they stood
before the contract was made. When a condition operates as such,
it lets in an outside force to destroy the existing state of
things. For although its existence is due to consent of parties,
its operation depends on the choice of one of them. When a
condition is broken, the person entitled to insist on it may do
so if he chooses; but he may, if he prefers, elect to keep the
contract on foot. He gets his right to avoid it from the
agreement, but the avoidance comes from him.

Hence it is important to distinguish those stipulations which
have this extreme effect from those which only interpret the
extent of a promise, or define the events to which it applies.
And as it has just been shown that a condition need not be
insisted on as such, we must further distinguish between its
operation by way of avoidance, which is peculiar to it, and its
incidental working by way of interpretation and definition, in
common with other clauses not conditions.

This is best illustrated by taking a bilateral contract between A
and B, where A's undertaking is conditional on B's doing what he
promises to do, and where, after A has got a certain distance in
his task, B breaks his half of the bargain. For instance, A is
employed as a clerk by B, and is wrongfully dismissed in the
middle of a quarter. In favor of A, the contract is conditional
on B's keeping his agreement to employ him. Whether A insists on
the condition or not, he is not bound to do any more. /1/ So far,
the condition works simply by way of definition. It establishes
that A has not promised to act in the case which has happened.
But besides this, for which a condition [320] was not necessary,
A may take his choice between two courses. In the first place, he
may elect to avoid the contract. In that case the parties stand
as if no contract had been made, and A, having done work for B
which was understood not to be gratuitous, and for which no rate
of compensation has been fixed, can recover what the jury think
his services were reasonably worth. The contract no longer
determines the quid pro quo. But as an alternative course A may
stand by the contract if he prefers to do so, and sue B for
breaking it. In that case he can recover as part of his damages
pay at the contract rate for what he had done, as well as
compensation for his loss of opportunity to finish it. But the
points which are material for the present discussion are, that
these two remedies are mutually exclusive, /1/ one supposing the
contract to be relied on, the other that it is set aside, but
that A's stopping work and doing no more after B's breach is
equally consistent with either choice, and has in fact nothing to
do with the matter.

One word should be added to avoid misapprehension. When it is
said that A has done all that he promised to do in the case which
has happened, it is not meant that he is necessarily entitled to
the same compensation as if he had done the larger amount of
work. B's promise in the case supposed was to pay so much a
quarter for services; and although the consideration of the
promise was the promise by A to perform them, the scope of it was
limited to the case of their being performed in fact. Hence A
could not simply wait till the end of his term, and then recover
the full amount which he would have had if the employment had
continued. Nor is he any more entitled to do so from [321] the
fact that it was B's fault that the services were not rendered.
B's answer to any such claim is perfect. He is only liable upon a
promise, and he in his turn only promised to pay in a case which
has not happened. He did promise to employ, however, and for not
doing that he is liable in damages.

One or two more illustrations will be useful. A promises to
deliver, and B promises to accept and pay for, certain goods at a
certain time and place. When the time comes, neither party is on
hand. Neither would be liable to an action, and, according to
what has been said, each has done all that he promised to do in
the event which has happened, to wit, nothing. It might be
objected that, if A has done all that he is bound to do, he ought
to be able to sue B, since performance or readiness to perform
was all that was necessary to give him that right, and conversely
the same might be said of B. On the other hand, considering
either B or A as defendant, the same facts would be a complete
defence. The puzzle is largely one of words.

A and B have, it is true, each performed all that they promised
to do at the present stage, because they each only promised to
act in the event of the other being ready and willing to act at
the same time. But the readiness and willingness, although not
necessary to the performance of either promise, and therefore not
a duty, was necessary in order to present a case to which the
promise of action on the other side would apply. Hence, although
A and B have each performed their own promise, they have not
performed the condition to their right of demanding more from the
other side. The performance of that condition is purely optional
until one side has brought it within the [322] scope of the
other's undertaking by performing it himself. But it is
performance in the latter sense, that is, the satisfying of all
conditions, as well as the keeping of his own promises, which is
necessary to give A or B a right of action.

Conditions may be created by the very words of a contract. Of
such cases there is nothing to be said, for parties may agree to
what they choose. But they may also be held to arise by
construction, where no provision is made in terms for rescinding
or avoiding the contract in any case. The nature of the
conditions which the law thus reads in needs explanation. It may
be said, in a general way, that they are directed to the
existence of the manifest grounds for making the bargain on the
side of the rescinding party, or the accomplishment of its
manifest objects. But that is not enough. Generally speaking, the
disappointment must be caused by the wrong-doing of the person on
the other side; and the most obvious cases of such wrong-doing
are fraud and misrepresentation, or failure to perform his own
part of the contract.

Fraud and misrepresentation thus need to be considered once more
in this connection. I take the latter first. In dealing with it
the first question which arises is whether the representation is,
or is not, part of the contract. If the contract is in writing
and the representation is set out on the face of the paper, it
may be material or immaterial, but the effect of its untruth will
be determined on much the same principles as govern the failure
to perform a promise on the same side. If the contract is made by
word of mouth, there may be a large latitude in connecting words
of representation with later words of promise; but when they are
determined to be a part of the contract [323], the same
principles apply as if the whole were in writing.

The question now before us is the effect of a misrepresentation
which leads to, but is not a part of, the contract. Suppose that
the contract is in writing, but does not contain it, does such a
previous misrepresentation authorize rescission in any case? and
if so, does it in any case except where it goes to the height of
fraud? The promisor might say, It does not matter to me whether
you knew that your representation was false or not; the only
thing I am concerned with is its truth. If it is untrue, I suffer
equally whether you knew it to be so or not. But it has been
shown, in an earlier Lecture, that the law does not go on the
principle that a man is answerable for all the consequences of
all his acts. An act is indifferent in itself. It receives its
character from the concomitant facts known to the actor at the
time. If a man states a thing reasonably believing that he is
speaking from knowledge, it is contrary to the analogies of the
law to throw the peril of the truth upon him unless he agrees to
assume that peril, and he did not do so in the case supposed, as
the representation was not made part of the contract.

It is very different when there is fraud. Fraud may as well lead
to the making of a contract by a statement outside the contract
as by one contained in it. But the law would hold the contract
not less conditional on good faith in one case than in the other.

To illustrate, we may take a somewhat extreme case. A says to B,
I have not opened these barrels myself, but they contain No. 1
mackerel: I paid so much for them to so and so, naming a
well-known dealer. Afterwards A writes B, I will sell the barrels
which you saw, and their [324] contents, for so much; and B
accepts. The barrels turn out to contain salt. I suppose the
contract would be binding if the statements touching the contents
were honest, and voidable if they were fraudulent.

Fraudulent representations outside a contract can never, it would
seem, go to anything except the motives for making it. If outside
the contract, they cannot often affect its interpretation. A
promise in certain words has a definite meaning, which the
promisor is presumed to understand. If A says to B, I promise you
to buy this barrel and its contents, his words designate a person
and thing identified by the senses, and they signify nothing
more. There is no repugnancy, and if that person is ready to
deliver that thing, the purchaser cannot say that any term in the
contract itself is not complied with. He may have been
fraudulently induced to believe that B was another B, and that
the barrel contained mackerel; but however much his belief on
those points may have affected his willingness to make the
promise, it would be somewhat extravagant to give his words a
different meaning on that account. "You" means the person before
the speaker, whatever his name, and "contents" applies to salt,
as well as to mackerel.

It is no doubt only by reason of a condition construed into the
contract that fraud is a ground of rescission. Parties could
agree, if they chose, that a contract should be binding without
regard to truth or falsehood outside of it on either part.

But, as has been said before in these Lectures, although the law
starts from the distinctions and uses the language of morality,
it necessarily ends in external standards not dependent on the
actual consciousness of the individual. [325] So it has happened
with fraud. If a man makes a representation, knowing facts which
by the average standard of the community are sufficient to give
him warning that it is probably untrue, and it is untrue, he is
guilty of fraud in theory of law whether he believes his
statement or not. The courts of Massachusetts, at least, go much
further. They seem to hold that any material statement made by a
man as of his own knowledge, or in such a way as fairly to be
understood as made of his own knowledge, is fraudulent if untrue,
irrespective of the reasons he may have had for believing it and
for believing that he knew it. /1/ It is clear, therefore, that a
representation may be morally innocent, and yet fraudulent in
theory of law. Indeed, the Massachusetts rule seems to stop
little short of the principle laid down by the English courts of
equity, which has been criticised in an earlier Lecture, /2/
since most positive affirmations of facts would at least warrant
a jury in finding that they were reasonably understood to be made
as of the party's own knowledge, and might therefore warrant a
rescission if they turned out to be untrue. The moral phraseology
has ceased to be apposite, and an external standard of
responsibility has been reached. But the starting- point is
nevertheless fraud, and except on the ground of fraud, as defined
by law, I do not think that misrepresentations before the
contract affect its validity, although they lead directly to its
making. But neither the contract nor the implied condition calls
for the existence of the facts as to which the false
representations were made. They call only for the absence of
certain false representations. The condition is not that the
promisee shall be a certain other B, or that the contents of the
barrel shall be mackerel, [326] but that the promisee has not
lied to him about material facts.

Then the question arises, How do you determine what facts are
material? As the facts are not required by the contract, the only
way in which they can be material is that a belief in their being
true is likely to have led to the making of the contract.

It is not then true, as it is sometimes said, that the law does
not concern itself with the motives for making contracts. On the
contrary, the whole scope of fraud outside the contract is the
creation of false motives and the removal of true ones. And this
consideration will afford a reasonable test of the cases in which
fraud will warrant rescission. It is said that a fraudulent
representation must be material to have that effect. But how are
we to decide whether it is material or not? If the above argument
is correct, it must be by an appeal to ordinary experience to
decide whether a belief that the fact was as represented would
naturally have led to, or a contrary belief would naturally have
prevented, the making of the contract.

If the belief would not naturally have had such an effect, either
in general or under the known circumstances of the particular
case, the fraud is immaterial. If a man is induced to contract
with another by a fraudulent representation of the latter that he
is a great-grandson of Thomas Jefferson, I do not suppose that
the contract would be voidable unless the contractee knew that,
for special reasons, his lie would tend to bring the contract

The conditions or grounds for avoiding a contract which have been
dealt with thus far are conditions concerning the conduct of the
parties outside of the itself. [327] Still confining myself to
conditions arising by construction of law,--that is to say, not
directly and in terms attached to a promise by the literal
meaning of the words in which it is expressed,--I now come to
those which concern facts to which the contract does in some way

Such conditions may be found in contracts where the promise is
only on one side. It has been said that where the contract is
unilateral, and its language therefore is all that of the
promisor, clauses in his favor will be construed as conditions
more readily than the same words in a bilateral contract; indeed,
that they must be so construed, because, if they do not create a
condition, they do him no good, since ex hypothesi they are not
promises by the other party. /1/ How far this ingenious
suggestion has had a practical effect on doctrine may perhaps be

But it will be enough for the purposes of this general survey to
deal with bilateral contracts, where there are undertakings on
both sides, and where the condition implied in favor of one party
is that the other shall make good what he on his part has

The undertakings of a contract may be for the existence of a fact
in the present or in the future. They can be promises only in the
latter case; but in the former, they be equally essential terms
in the bargain.

Here again we come on the law of representations, but in a new
phase. Being a part of the contract, it is always possible that
their truth should make a condition of the contract wholly
irrespective of any question of fraud. And it often is so in
fact. It is not, however, every representation embodied in the
words used on one side which will [328] make a condition in favor
of the other party. Suppose A agrees to sell, and B agrees to
buy, "A's seven-year-old sorrel horse Eclipse, now in the
possession of B on trial," and in fact the horse is
chestnut-colored, not sorrel. I do not suppose that B could
refuse to pay for the horse on that ground. If the law were so
foolish as to aim at merely formal consistency, it might indeed
be said that there was as absolute a repugnancy between the
different terms of this contract as in the ease of an agreement
to sell certain barrels of mackerel, where the barrels turned out
to contain salt. If this view were adopted, there would not be a
contract subject to a condition, there would be no contract at
all. But in truth there is a contract, and there is not even a
condition. As has been said already, it is not every repugnancy
that makes a contract void, and it is not every failure in the
terms of the counter undertaking that makes it voidable. Here it
plainly appears that the buyer knows exactly what he is going to
get, and therefore that the mistake of color has no bearing on
the bargain. /1/

If, on the other hand, a contract contained a representation
which was fraudulent, and which misled the party to whom it was
made, the contract would be voidable on the same principles as if
the representation had been made beforehand. But words of
description in a contract are very frequently held to amount to
what is sometimes called a warranty, irrespective of fraud.
Whether they do so or not is a question to be determined by the
court on grounds of common sense, looking to the meaning of the
words, the importance in the transaction of the facts [329] which
the words convey, and so forth. But when words of description are
determined to be a warranty, the meaning of the decision is not
merely that the party using them binds himself to answer for
their truth, but that their truth is a condition of the contract.

For instance, in a leading case /1/ the agreement was that the
plaintiff's ship, then in the port of Amsterdam, should, with all
possible despatch, proceed direct to Newport, England, and there
load a cargo of coals for Hong Kong. At the date of the
charter-party the vessel was not in Amsterdam, but she arrived
there four days later. The plaintiff had notice that the
defendant considered time important. It was held that the
presence of the vessel in the port of Amsterdam at the date of
the contract was a condition, the breach of which entitled the
defendant to refuse to load, and to rescind the contract. If the
view were adopted that a condition must be a future event, and
that a promise purporting to be conditional on a past or present
event is either absolute or no promise at all, it would follow
that in this case the defendant had never made a promise. /2/ He
had only promised if circumstances existed which did not exist. I
have already stated my objections to this way of looking at such
cases, /2/ and will only add that the courts, so far as I am
aware, do not sanction it, and certainly did not in this

There is another ground for holding the charter-party void and no
contract, instead of regarding it as only voidable, which is
equally against authority, which nevertheless I have never been
able to answer wholly to my satisfaction. In the case put, the
representation of the lessor of the vessel [330] concerned the
vessel itself, and therefore entered into the description of the
thing the lessee agreed to take. I do not quite see why there is
not as fatal a repugnancy between the different terms of this
contract as was found in that for the sale of the barrels of salt
described as containing mackerel. Why is the repugnancy between
the two terms,--first, that the thing sold is the contents of
these barrels, and, second, that it is mackerel--fatal to the
existence of a contract? It is because each of those terms goes
to the very root and essence of the contract, /1/--because to
compel the buyer to take something answering to one, but not to
the other requirement, would be holding him to do a substantially
different thing from what he promised, and because a promise to
take one and the same thing answering to both requirements is
therefore contradictory in a substantial matter. It has been seen
that the law does not go on any merely logical ground, and does
not hold that every slight repugnancy will make a contract even
voidable. But, on the other hand, when the repugnancy is between
terms which are both essential, it is fatal to the very existence
of the contract. How then do we decide whether a given term is
essential? Surely the best way of finding out is by seeing how
the parties have dealt with it. For want of any expression on
their part we may refer to the speech and dealings of every day,
/2/ and say that, if its absence would make the subject-matter a
different thing, its presence is essential to the existence of
the agreement. But the parties may agree that anything, however
trifling, shall be essential, as well [331] as that anything,
however important, shall not be; and if that essential is part of
the contract description of a specific thing which is also
identified by reference to the senses, how can there be a
contract in its absence any more than if the thing is in popular
speech different in kind from its description? The qualities that
make sameness or difference of kind for the purposes of a
contract are not determined by Agassiz or Darwin, or by the
public at large, but by the will of the parties, which decides
that for their purposes the characteristics insisted on are such
and such. /1/1 Now, if this be true, what evidence can there be
that a certain requirement is essential, that without it the
subject-matter will be different in kind from the description,
better than that one party has required and the other given a
warranty of its presence? Yet the contract description of the
specific vessel as now in the port of Amsterdam, although held to
be an implied warranty, does not seem to have been regarded as
making the contract repugnant and void, but only as giving the
defendant the option of avoiding it. /2/ Even an express warranty
of quality in sales does not have this effect, and in England,
indeed, it does not allow the purchaser to rescind in case of
breach. On this last point the law of Massachusetts is different.

The explanation has been offered of the English doctrine with
regard to sales, that, when the title has passed, the purchaser
has already had some benefit from the contract, and therefore
cannot wholly replace the seller in statu quo, as must be done
when a contract is rescinded. /3/ This reasoning [332] seems
doubtful, even to show that the contract is not voidable, but has
no bearing on the argument that it is void. For if the contract
is void, the title does not pass.

It might be said that there is no repugnancy in the charterer's
promise, because he only promises to load a certain ship, and
that the words "now in the port of Amsterdam" are merely matter
of history when the time for loading comes, and no part of the
description of the vessel which he promised to load. But the
moment those words are decided to be essential they become part
of the description, and the promise is to load a certain vessel
which is named the Martaban, and which was in the port of
Amsterdam at the date of the contract. So interpreted, it is

Probably the true solution is to be found in practical
considerations. At any rate, the fact is that the law has
established three degrees in the effect of repugnancy. If one of
the repugnant terms is wholly insignificant, it is simply
disregarded, or at most will only found a claim for damages. The
law would be loath to hold a contract void for repugnancy in
present terms, when if the same terms were only promised a
failure of one of them would not warrant a refusal to perform on
the other side. If, on the other hand, both are of the extremest
importance, so that to enforce the rest of the promise or bargain
without one of them would not merely deprive one party of a
stipulated incident, but would force a substantially different
bargain on him, the promise will be void. There is an
intermediate class of cases where it is left to the disappointed
party to decide. But as the lines between the three are of this
vague kind, it is not surprising that they have been differently
drawn in different jurisdictions.

[333] The examples which have been given of undertakings for a
present state of facts have been confined to those touching the
present condition of the subject- matter of the contract. Of
course there is no such limit to the scope of their employment. A
contract may warrant the existence of other facts as well, and
examples of this kind probably might be found or imagined where
it would be clear that the only effect of the warranty was to
attach a condition to the contract, in favor of the other side,
and where the question would be avoided whether there was not
something more than a condition,--a repugnancy which prevented
the formation of any contract at all. But the preceding
illustrations are enough for the present purpose.

We may now pass from undertakings that certain facts are true at
the time of making the contract, to undertakings that certain
facts shall be true at some later time,--that is, to promises
properly so called. The question is when performance of the
promise on one side is a condition to the obligation of the
contract on the other. In practice, this question is apt to be
treated as identical with another, which, as has been shown
earlier, is a distinct point; namely, when performance on one
side is a condition of the right to call for performance on the
other. It is of course conceivable that a promise should be
limited to the case of performance of the things promised on the
other side, and yet that a failure of the latter should not
warrant a rescission of the contract. Wherever one party has
already received a substantial benefit under a contract of a kind
which cannot be restored, it is too late to rescind, however
important a breach may be committed later by the other side. Yet
he may be [334] excused from going farther. Suppose a contract is
made for a month's labor, ten dollars to be paid down, not to be
recovered except in case of rescission for the laborer's fault,
and thirty dollars at the end of the month. If the laborer should
wrongfully stop work at the end of a fortnight, I do not suppose
that the contract could be rescinded, and that the ten dollars
could be recovered as money had and received; /1/ but, on the
other hand, the employer would not be bound to pay the thirty
dollars, and of course he could sue for damages on the contract.

But, for the most part, a breach of promise which discharges the
promisee from further performance on his side will also warrant
rescission, so that no great harm is done by the popular
confusion of the two questions. Where the promise to perform on
one side is limited to the case of performance on the other, the
contract is generally conditioned on it also. In what follows, I
shall take up the cases which I wish to notice without stopping
to consider whether the contract was in a strict sense
conditioned on performance of the promise on one side, or whether
the true construction was merely that the promise on the other
side was limited to that event.

Now, how do we settle whether such a condition exists? It is easy
to err by seeking too eagerly for simplicity, and by striving too
hard to reduce all cases to artificial presumptions, which are
less obvious than the decisions which they are supposed to
explain. The foundation of the whole matter is, after all, good
sense, as the courts have often said. The law means to carry out
the intention of the parties, and, so far as they have not
provided [335] for the event which has happened, it has to say
what they naturally would have intended if their minds had been
turned to the point. It will be found that decisions based on the
direct implications of the language used, and others based upon a
remoter inference of what the parties must have meant, or would
have said if they had spoken, shade into each other by
imperceptible degrees.

Mr. Langdell has called attention to a very important principle,
and one which, no doubt, throws light on many decisions. /1/ This
is, that, where you have a bilateral contract, while the
consideration of each promise is the counter promise, yet prima
facie the payment for performance of one is performance of the
other. The performance of the other party is what each means to
have in return for his own. If A promises a barrel of flour to B,
and B promises him ten dollars for it, A means to have the ten
dollars for his flour, and B means to have the flour for his ten
dollars. If no time is set for either act, neither can call on
the other to perform without being ready at the same time

But this principle of equivalency is not the only principle to be
drawn even from the form of contracts, without considering their
subject-matter, and of course it is not offered as such in Mr.
Langdell's work.

Another very clear one is found in contracts for the sale or
lease of a thing, and the like. Here the qualities or
characteristics which the owner promises that the thing furnished
shall possess, go to describe the thing which the buyer promises
to accept. If any of the promised traits are wanting in the thing
tendered, the buyer may refuse to accept, not merely on the
ground that he has not [336] been offered the equivalent for
keeping his promise, but also on the ground that he never
promised to accept what is offered him. /1/ It has been seen
that, where the contract contains a statement touching the
condition of the thing at an earlier time than the moment for its
acceptance, the past condition may not always be held to enter
into the description of the thing to be accepted. But no such
escape is possible here. Nevertheless there are limits to the
right of refusal even in the present class of cases. If the thing
promised is specific, the preponderance of that part of the
description which identifies the object by reference to the
senses is sometimes strikingly illustrated. One case has gone so
far as to hold that performance of an executory contract to
purchase a specific thing cannot be refused because it fails to
come up to the warranted quality. /2/

Another principle of dependency to be drawn from the form of the
contract itself is, that performance of the promise on one side
may be manifestly intended to furnish the means for performing
the promise on the other. If a tenant should promise to make
repairs, and the landlord should promise to furnish him wood for
the purpose, it is believed that at the present day, whatever may
have been the old decisions, the tenant's duty to repair would be
dependent upon the landlord's furnishing the material when
required. /3/

[337] Another case of a somewhat exceptional kind is where a
party to a bilateral contract agrees to do certain things and to
give security for his performance. Here it is manifest good-sense
to hold giving the security a condition of performance on the
other side, if it be possible. For the requirement of security
shows that the party requiring it was not content to rely on the
simple promise of the other side, which he would be compelled to
do if he had to perform before the security was given, and thus
the very object of requiring it would be defeated. /1/

This last case suggests what is very forcibly impressed on any
one who studies the cases,--that, after all, the most of decision
is not any technical, or even any general principle of contracts,
but a consideration of the nature of the particular transaction
as a practical matter. A promises B to do a day's work for two
dollars, and B promises A to pay two dollars for a day's work.
There the two promises cannot be performed at the same time. The
work will take all day, the payment half a minute. How are you to
decide which is to be done first, that is to say, which promise
is dependent upon performance on the other side? It is only by
reference to the habits of the community and to convenience. It
is not enough to say that on the principle of equivalency a man
is not presumed to intend to pay for a thing until he has it. The
work is payment for the money, as much as the [338] money for the
work, and one must be paid in advance. The question is, why, if
one man is not presumed to intend to pay money until he has
money's worth, the other is presumed to intend to give money's
worth before he has money. An answer cannot be obtained from any
general theory. The fact that employers, as a class, can be
trusted for wages more safely than the employed for their labor,
that the employers have had the power and have been the law-
makers, or other considerations, it matters not what, have
determined that the work is to be done first. But the grounds of
decision are purely practical, and can never be elicited from
grammar or from logic.

A reference to practical considerations will be found to run all
through the subject. Take another instance. The plaintiff
declared on a mutual agreement between himself and the defendant
that he would sell, and the defendant would buy, certain Donskoy
wool, to be shipped by the plaintiff at Odessa, and delivered in
England. Among the stipulations of the contract was one, that the
names of the vessels should be declared as soon as the wools were
shipped. The defence was, that the wool was bought, with the
knowledge of both parties, for the purpose of reselling it in the
course of the defendant's business; that it was an article of
fluctuating value, and not salable until the names of the vessels
in which it was shipped should have been declared according to
the contract, but that the plaintiff did not declare the names of
the vessels as agreed. The decision of the court was given by one
of the greatest technical lawyers that ever lived, Baron Parke;
yet he did not dream of giving any technical or merely logical
reason for the decision, but, after stating in the above words
the facts which were deemed material to the question [339]
whether declaring the names of the vessels was a condition to the
duty to accept, stated the ground of decision thus: "Looking at
the nature of the contract, and the great importance of it to the
object with which the contract was entered into with the
knowledge of both parties, we think it was a condition
precedent." /1/

[340] LECTURE X.


In the Lecture on Possession, I tried to show that the notion of
possessing a right as such was intrinsically absurd. All rights
are consequences attached to filling some situation of fact. A
right which may be acquired by possession differs from others
simply in being attached to a situation of such a nature that it
may be filled successively by different persons, or by any one
without regard to the lawfulness of his doing so, as is the case
where the situation consists in having a tangible object within
one's power.

When a right of this sort is recognized by the law, there is no
difficulty in transferring it; or, more accurately, there is no
difficulty in different persons successively enjoying similar
rights in respect of the subject-matter. If A, being the
possessor of a horse or a field, gives up the possession to B,
the rights which B acquires stand on the same ground as A's did
before. The facts from which A's rights sprang have ceased to be
true of A, and are now true of B. The consequences attached by
the law to those facts now exist for B, as they did for A before.
The situation of fact from which the rights spring is continuing
one, and any one who occupies it, no matter how, has the rights
attached to it. But there is no possession possible of a
contract. The [341] fact that a consideration was given yesterday
by A to B, and a promise received in return, cannot be laid hold
of by X, and transferred from A to himself. The only thing can be
transferred is the benefit or burden of the promise, and how can
they be separated from the facts which gave rise to them? How, in
short, can a man sue or be sued on a promise in which he had no

Hitherto it has been assumed, in dealing with any special right
or obligation, that the facts from which it sprung were true of
the individual entitled or bound. But it often happens,
especially in modern law, that a person acquires and is allowed
to enforce a special right, although that facts which give rise
to it are not true of him, or are true of him only in part. One
of the chief problems of the law is to explain the machinery by
which this result has been brought to pass.

It will be observed that the problem is not coextensive with the
whole field of rights. Some rights cannot be transferred by any
device or contrivance; for instance, a man's right a to bodily
safety or reputation. Others again are incident to possession,
and within the limits of that conception no other is necessary.
As Savigny said, "Succession does not apply to possession by
itself." /1/

But the notion of possession will carry us but a very little way
in our understanding of the modern theory of transfer. That
theory depends very largely upon the notion of succession, to use
the word just quoted from Savigny, and accordingly successions
will be the subject of this and the following Lecture. I shall
begin by explaining the theory of succession to persons deceased,
and after that is done shall pass to the theory of transfer
between living [342] people, and shall consider whether any
relation can be established between the two.

The former is easily shown to be founded upon a fictitious
identification between the deceased and his successor. And as a
first step to the further discussion, as well as for its own
sake, I shall briefly state the evidence touching the executor,
the heir, and the devisee. In order to understand the theory of
our law with regard to the first of these, at least, scholars are
agreed that it is necessary to consider the structure and
position of the Roman family as it was in the infancy of Roman

Continental jurists have long been collecting the evidence that,
in the earlier periods of Roman and German law alike, the unit of
society was the family. The Twelve Tables of Rome still recognize
the interest of the inferior members of the family in the family
property. Heirs are called sui heredes, that is, heirs of
themselves or of their own property, as is explained by Gaius.
/1/ Paulus says that they are regarded as owners in a certain
sense, even in the lifetime of their father, and that after his
death they do not so much receive an inheritance as obtain the
full power of dealing with their property. /2/

Starting from this point it is easy to understand the [343]
succession of heirs to a deceased paterfamilias in the Roman
system. If the family was the owner of the property administered
by a paterfamilias, its rights remained unaffected by the death
of its temporary head. The family continued, although the head
died. And when, probably by a gradual change, /1/ the
paterfamilias came to be regarded as owner, instead of a simple
manager of the family rights, the nature and continuity of those
rights did not change with the title to them. The familia
continued to the heirs as it was left by the ancestor. The heir
succeeded not to the ownership of this or that thing separately,
but to the total hereditas or headship of the family with certain
rights of property as incident, /2/ and of course he took this
headship, or right of representing the family interests, subject
to the modifications effected by the last manager.

The aggregate of the ancestor's rights and duties, or, to use the
technical phrase, the total persona sustained by him, was easily
separated from his natural personality. For this persona was but
the aggregate of what had formerly been family rights and duties,
and was originally sustained by any individual only as the family
head. Hence it was said to be continued by the inheritance, /3/
and when the heir assumed it he had his action in respect of
injuries previously committed. /4/

Thus the Roman heir came to be treated as identified with his
ancestor for the purposes of the law. And thus it is clear how
the impossible transfers which I seek to explain were
accomplished in that instance. Rights to which B [344] as B could
show no title, he could readily maintain under the fiction that
he was the same person as A, whose title was not denied.

It is not necessary at this point to study family rights in the
German tribes. For it is not disputed that the modern executor
derives his characteristics from the Roman heir. Wills also were
borrowed from Rome, and were unknown to the Germans of Tacitus.
/1/ Administrators were a later imitation of executors,
introduced by statute for cases where there was no will, or
where, for any other reason, executors were wanting.

The executor has the legal title to the whole of the testator's
personal estate, and, generally speaking, the power of
alienation. Formerly he was entitled to the undistributed
residue, not, it may fairly be conjectured, as legatee of those
specific chattels, but because he represented the person of the
testator, and therefore had all the rights which the testator
would have had after distribution if alive. The residue is
nowadays generally bequeathed by the will, but it is not even now
regarded as a specific gift of the chattels remaining undisposed
of, and I cannot help thinking that this doctrine echoes that
under which the executor took in former times.

No such rule has governed residuary devises of real estate, which
have always been held to be specific in England down to the
present day. So that, if a devise of land should fail, that land
would not be disposed of by the residuary clause, but would
descend to the heir as if there had been no will.

Again, the appointment of an executor relates back to the date of
the testator's death. The continuity of person [345] is preserved
by this fiction, as in Rome it was by personifying the
inheritance ad interim.

Enough has been said to show the likeness between our executor
and the Roman heir. And bearing in mind what was said about the
heres, it will easily be seen how it came to be said, as it often
was in the old books, that the executor "represents the person of
his testator." /1/ The meaning of this feigned identity has been
found in history, but the aid which it furnished in overcoming a
technical difficulty must also be appreciated. If the executor
represents the person of the testator, there is no longer any
trouble in allowing him to sue or be sued on his testator's
contracts. In the time of Edward III., when an action of covenant
was brought against executors, Persay objected: "I never heard
that one should have a writ of covenant against executors, nor
against other person but the very one who made the covenant, for
a man cannot oblige another person to a covenant by his deed
except him who was party to the covenant." /2/ But it is useless
to object that the promise sued upon was made by A, the testator,
not by B, the executor, when the law says that for this purpose B
is A. Here then is one class of cases in which a transfer is
accomplished by the help of a fiction, which shadows, as fictions
so often do, the facts of an early stage of society, and which
could hardly have been invented had these facts been otherwise.

Executors and administrators afford the chief, if not the only,
example of universal succession in the English [346] law. But
although they succeed per universitatem, as has been explained,
they do not succeed to all kinds of property. The personal estate
goes to them, but land takes another course. All real estate not
disposed of by will goes to the heir, and the rules of
inheritance are quite distinct from those which govern the
distribution of chattels. Accordingly, the question arises
whether the English heir or successor to real estate presents the
same analogies to the Roman heres as the executor.

The English heir is not a universal successor. Each and every
parcel of land descends as a separate and specific tiling.
Nevertheless, in his narrower sphere he unquestionably represents
the person of his ancestor. Different opinions have been held as
to whether the same thing was true in early German law. Dr.
Laband says that it was; /1/ Sohm takes the opposite view. /2/ It
is commonly supposed that family ownership, at least of land,
came before that of individuals in the German tribes, and it has
been shown how naturally representation followed from a similar
state of things in Rome. But it is needless to consider whether
our law on this subject is of German or Roman origin, as the
principle of identification has clearly prevailed from the time
of Glanvill to the present day. If it was not known to the
Germans, it is plainly accounted for by the influence of the
Roman law. If there was anything of the sort in the Salic law, it
was no doubt due to natural causes similar to those which gave
rise to the principle at Rome. But in either event I cannot doubt
that the modern doctrine has taken a good deal of its form, and
perhaps some of its substance, from the mature system [347] of
the civilians, in whose language it was so long expressed. For
the same reasons that have just been mentioned, it is also
needless to weigh the evidence of the Anglo-Saxon sources,
although it seems tolerably clear from several passages in the
laws that there was some identification. /1/

As late as Bracton, two centuries after the Norman conquest, the
heir was not the successor to lands alone, but represented his
ancestor in a much more general sense, as will be seen directly.
The office of executor, in the sense of heir, was unknown to the
Anglo-Saxons, /2/ and even in Bracton's time does not seem to
have been what it has since become. There is, therefore, no need
to go back further than to the early Norman period, after the
appointment of executors had become common, and the heir was more
nearly what he is now.

When Glanvill wrote, a little more than a century after the
Conquest, the heir was bound to warrant the reasonable gifts of
his ancestor to the grantees and their heirs; /3/ and if the
effects of the ancestor were insufficient to pay his debts, the
heir was bound to make up the deficiency from his own property.
/4/ Neither Glanvill nor his Scotch imitator, the Regiam
Majestatem, /5/ limits the liability to the amount of property
inherited from the same source. This makes the identification of
heir and ancestor as complete as that of the Roman law before
such a limitation was introduced by Justinian. On the other hand,
a century [348] later, it distinctly appears from Bracton, /1/
that the heir was only bound so far as property had descended to
him, and in the early sources of the Continent, Norman as well as
other, the same limitation appears. /2/ The liabilities of the
heir were probably shrinking. Britton and Fleta, the imitators of
Bracton, and perhaps Bracton himself, say that an heir is not
bound to pay his ancestor's debt, unless he be thereto especially
bound by the deed of his ancestor. /3/ The later law required
that the heir should be mentioned if he was to be held.

But at all events the identification of heir and ancestor still
approached the nature of a universal succession in the time of
Bracton, as is shown by another statement of his. He asks if the
testator can bequeath his rights of action, and answers, No, so
far as concerns debts not proved and recovered in the testator's
life. But actions of that sort belong to the heirs, and must be
sued in the secular court; for before they are so recovered in
the proper court, the executor cannot proceed for them in the
ecclesiastical tribunal. /4/

This shows that the identification worked both ways. The heir was
liable for the debts due from his ancestor, and he could recover
those which were due to him, until [349] the executor took his
place in the King's Courts, as well as in those of the Church.
Within the limits just explained the heir was also bound to
warrant property sold by his ancestor to the purchaser and his
heirs. /1/ It is not necessary, after this evidence that the
modern heir began by representing his ancestor generally, to seek
for expressions in later books, since his position has been
limited. But just as we have seen that the executor is still said
to represent the person of his testator, the heir was said to
represent the person of his ancestor in the time of Edward I. /2/
So, at a much later date, it was said that "the heir is in
representation in point of taking by inheritance eadam persona
cum antecessore," /3/ the same persona as his ancestor.

A great judge, who died but a few years ago, repeats language
which would have been equally familiar to the lawyers of Edward
or of James. Baron Parke, after laying down that in general a
party is not required to make profert of an instrument to the
possession of which he is not entitled, says that there is an
exception "in the cases of heir and executor, who may plead a
release to the ancestor or testator whom they respectively
represent; so also with respect to several tortfeasors, for in
all these cases there is a privity between the parties which
constitutes an identity of person." /4/

But this is not all. The identity of person was carried [350]
farther still. If a man died leaving male children, and owning
land in fee, it went to the oldest son alone; but, if he left
only daughters, it descended to them all equally. In this case
several individuals together continued the persona of their
ancestor. But it was always laid down that they were but one
heir. /1/ For the purpose of working out this result, not only
was one person identified with another, but several persons were
reduced to one, that they might sustain a single persona.

What was the persona? It was not the sum of all the rights and
duties of the ancestor. It has been seen that for many centuries
his general status, the sum of all his rights and duties except
those connected with real property, has been taken up by the
executor or administrator. The persona continued by the heir was
from an early day confined to real estate in its technical sense;
that is, to property subject to feudal principles, as
distinguished from chattels, which, as Blackstone tells us, /2/
include whatever was not a feud.

But the heir's persona was not even the sum of all the ancestor's
rights and duties in connection with real estate. It has been
said already that every fee descends specifically, and not as
incident to a larger universitas. This appears not so much from
the fact that the rules of descent governing different parcels
might be different, /3/ so that the same person would not be heir
to both, as from the very nature of feudal property. Under the
feudal system in its vigor, the holding of land was only one
[351] incident of a complex personal relation. The land was
forfeited for a failure to render the services for which it was
granted; the service could be renounced for a breach of
correlative duties on the part of the lord. /1/ It rather seems
that, in the beginning of the feudal period under Charlemagne, a
man could only hold land of one lord. /2/ Even when it had become
common to hold of more than one, the strict personal relation was
only modified so far as to save the tenant from having to perform
inconsistent services. Glanvill and Bracton /3/ a tell us that a
tenant holding of several lords was to do homage for each fee,
but to reserve his allegiance for the lord of whom he held his
chief estate; but that, if the different lords should make war
upon each other, and the chief lord should command the tenant to
obey him in person, the tenant ought to obey, saving the service
due to the other lord for the fee held of him.

We see, then, that the tenant had a distinct persona or status in
respect of each of the fees which he held. The rights and duties
incident to one of them had no relation to the rights and duties
incident to another. A succession to one had no connection with
the succession to another. Each succession was the assumption of
a distinct personal relation, in which the successor was to be
determined by the terms of the relation in question.

The persona which we are seeking to define is the estate. Every
fee is a distinct persona, a distinct hereditas, or inheritance,
as it has been called since the time of Bracton. We have already
seen that it may be sustained by more [352] than one where there
are several heirs, as well as by one, just as a corporation may
have more or less members. But not only may it be divided
lengthwise, so to speak, among persons interested in the same way
at the same time: it may also be cut across into successive
interests, to be enjoyed one after another. In technical
language, it may be divided into a particular estate and
remainders. But they are all parts of the same fee, and the same
fiction still governs them. We read in an old case that "he in
reversion and particular tenant are but one tenant." /1/ This is
only a statement of counsel, to be sure; but it is made to
account for a doctrine which seems to need the explanation, to
the effect that, after the death of the tenant for life, he in
reversion might have error or attaint on an erroneous judgment or
false verdict given against the tenant for life. /2/

To sum up the results so far, the heir of modern English law gets
his characteristic features from the law as it stood soon after
the Conquest. At that time he was a universal successor in a very
broad sense. Many of his functions as such were soon transferred
to the executor. The heir's rights became confined to real
estate, and his liabilities to those connected with real estate,
and to obligations of his ancestor expressly binding him. The
succession to each fee or feudal inheritance is distinct, not
part of the sum of all the ancestor's rights regarded as one
whole. But to this day the executor in his sphere, and the heir
in his, represent the person of the deceased, and are treated as
if they were one with him, for the purpose of settling their
rights and obligations.

The bearing which this has upon the contracts of the [353]
deceased has been pointed out. But its influence is not confined
to contract; it runs through everything. The most striking
instance, however, is the acquisition of prescriptive rights.
Take the case of a right of way. A right of way over a neighbor's
land can only be acquired by grant, or by using it adversely for
twenty years. A man uses a way for ten years, and dies. Then his
heir uses it ten years. Has any right been acquired? If common
sense alone is consulted, the answer must be no. The ancestor did
not get any right, because he did not use the way long enough.
And just as little did the heir. How can it better the heir's
title that another man had trespassed before him? Clearly, if
four strangers to each other used the way for five years each, no
right would be acquired by the last. But here comes in the
fiction which has been so carefully explained. From the point of
view of the law it is not two persons who have used the way for
ten years each, but one who has used it for twenty. The heir has
the advantage of sustaining his ancestor's and the right is



I now reach the most difficult and obscure part of the subject.
It remains to be discovered whether the fiction of identity was
extended to others besides the heir and executor. And if we find,
as we do, that it went but little farther in express terms, the
question will still arise whether the mode of thought and the
conceptions made possible by the doctrine of inheritance have not
silently modified the law as to dealings between the living. It
seems to me demonstrable that their influence has been profound,
and that, without understanding the theory of inheritance, it is
impossible to understand the theory of transfer inter vivos.

[354] The difficulty in dealing with the subject is to convince
the sceptic that there is anything to explain. Nowadays, the
notion that a right is valuable is almost identical with the
notion that it may be turned into money by selling it. But it was
not always so. Before you can sell a right, you must be able to
make a sale thinkable in legal terms. I put the case of the
transfer of a contract at the beginning of the Lecture. I have
just mentioned the case of gaining a right by prescription, when
neither party has complied with the requirement of twenty years'
adverse use. In the latter instance, there is not even a right at
the time of the transfer, but a mere fact of ten years' past
trespassing. A way, until it becomes a right of way, is just as
little susceptible of being held by a possessory title as a
contract. If then a contract can be sold, if a buyer can add the
time of his seller's adverse user to his own, what is the
machinery by which the law works out the result?

The most superficial acquaintance with any system of law in its
earlier stages will show with what difficulty and by what slow
degrees such machinery has been provided, and how the want of it
has restricted the sphere of alienation. It is a great mistake to
assume that it is a mere matter of common sense that the buyer
steps into the shoes of the seller, according to our significant
metaphor. Suppose that sales and other civil transfers had kept
the form of warlike capture which it seems that they had in the
infancy of Roman law, /1/ and which was at least [355] partially
retained in one instance, the acquisition of wives, after the
transaction had, in fact, taken the more civilized shape of
purchase. The notion that the buyer came in adversely to the
seller would probably have accompanied the fiction of adverse
taking, and he would have stood on his own position as founding a
new title. Without the aid of conceptions derived from some other
source, it would have been hard to work out a legal transfer of
objects which did not admit of possession.

A possible source of such other conceptions was to be found in
family law. The principles of inheritance furnished a fiction and
a mode of thought which at least might have been extended into
other spheres. In order to prove that they were in fact so
extended, it will be necessary to examine once more the law of
Rome, as well as the remains of German and Anglo-Saxon customs.

I will take up first the German and Anglo-Saxon laws which are
the ancestors of our own on one side of the house. For although
what we get from those sources is not in the direct line of the
argument, it lays a foundation for it by showing the course of

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